Knights of the Round Table: Participant Selection Mechanism for Court-related Deliberations

• Publication year: 2022

40 Creighton L. Rev. 733. KNIGHTS OF THE ROUND TABLE: PARTICIPANT SELECTION MECHANISM FOR COURT-RELATED DELIBERATIONS

Creighton Law Review

Vol. 40

KEREN AZULAY(fn*)

ABSTRACT

In 2003, the Deliberative Democracy Consortium convened thirty leading scholars and practitioners specializing in public deliberations. They were asked to define the top priorities for future research. The primary issue they agreed merited further research was the effect the design of a deliberative procedure has on its outcome. This Article tries to meet the challenge of researching this interaction.

The Article presents a novel procedure for selecting and convening relevant participants for deliberative initiatives. It is based on the conventional wisdom that participation by all relevant stakeholders is likely to contribute to both the success of the deliberation and the legitimacy of its outcome. The participant selection mechanism presented here involves two stages. In the first stage, a trained facilitator identifies the relevant stakeholders and convinces them to join the deliberations. In the second stage, a court reviews the list of participants, and interested parties can object to the list of participants or file motions for intervention.

This participant selection mechanism helps bridge the existing gap between the theory and practice in the field of public deliberation. In practice, the participant selection mechanism shows how courts and skilled facilitators can cooperate to enhance the legitimacy and effectiveness of deliberative procedures. In theory, by utilizing the authority of courts in the participant selection procedure, it calls for future exploration of the ways in which legal mechanisms can overcome some of the difficulties deliberative decision-making procedures face.

INTRODUCTION

Millions of people around the world deliberate every day on issues ranging from growth and environmental regulation,(fn1) to municipal budgeting,(fn2) to neighborhood management.(fn3) One in four Americans indicates that he or she has attended a formal or informal deliberation over a public issue in the last year,(fn4) and seventy-four percent of Americans reported having engaged in at least one type of discursive act, such as face-to-face meetings, informal conversations, or internet de-liberations.(fn5) This illustrates a natural tendency to rely on deliberative institutions as the forums in which policies are shaped and conflicts can be resolved.

Because deliberations are gaining popularity as an efficient conflict resolution approach, scholars have increasingly directed their attention to the benefits and pitfalls of deliberations. This research has focused on such issues as the underlying philosophical, political, and pragmatic justifications for citizen participation,(fn6) the advantages of deliberative methods in resolution of complex public problems(fn7) and the ability of deliberative schemes to restore democratic values.(fn8)

But while the theoretical research on deliberation proliferates, the design of deliberative institutions following the theory lags behind.(fn9) This is especially true with regard to mechanisms to select par-ticipants in deliberative endeavors. Even though deliberation supporters commonly agree that the identity of the people around the table affects the success of deliberations tremendously(fn10) most deliberative models do little more than identify, in very general terms, the type of parties that should participate (i.e., politicians, experts, representatives of various ethnic groups, etc.). Very few provide structured procedures for selecting and convening these participants. In practice, most deliberations are simply composed of those who want to join; usually these are members of organized interest groups or members of certain elitist groups that are better educated, better positioned, and wealthier than the rest of the population.(fn11) Not infrequently, these tendencies create a bias that undermines the representativeness and legitimacy of the deliberations and jeopardize the achievement of its goals.

This Article aims to fill the gap between the theory and practice by presenting a novel procedure for selecting and convening participants for deliberative initiatives. Through a two-step process of group formation, the model proposed here aims primarily to identify and convene all relevant stakeholders in the issue being deliberated. In the first stage, a neutral facilitator interviews potential participants in an effort to ascertain the relevant parties and to convince them to join the deliberation. In the second stage, the facilitator's recommended list of participants is reviewed by a court, and all interested parties have standing to object to the list of participants or to request to join the process as well. The court's analysis focuses primarily on assessing a party's interest in the deliberation and her ability to represent the interest adequately. Following this hearing and the court's approval of the list of participants, the deliberation begins.

The two-stage selection model presented here seeks to maximize the combined expertise of neutral facilitators and courts. Trained facilitators specialize in conducting conflict assessments and in tracking relevant participants. In the process proposed here, the interviews between the facilitators and potential parties are confidential. Confidentiality enables parties to express their positions freely and to establish good rapport with the facilitator, who will later facilitate the deliberations as well. Trained facilitators that operate in an informal setting are often capable of convincing initially reluctant parties to join in deliberations. This can guarantee participation by all relevant parties. Trained facilitators can also persuade parties to cooperate with other participants and can interpose between parties that refuse to cooperate with "the other side." Courts, in the second stage of the model, institutionalize the participant selection procedure. Courts specialize in determining both the scope of a controversy and the parties needed for its resolution. Using their inherent authority to decide motions concerning parties to a dispute, courts not only review the list of participants and ratify it; they also provide a formal venue for interested parties to object to the list of participants if they believe it is incomplete or unrepresentative and to file motions for intervention.

This selection model strives to overcome most of the problems associated with existing participant selections mechanisms, as described recently by Archon Fung.(fn12) The first method, used in the vast majority of deliberations, involves a self-selected mechanism in which deliberations are simply open to all comers. The difficulty with such processes is that those who choose to attend are often unrepresentative of the larger public.(fn13) A second mechanism often used attempts to overcome this problem by concentrating on selective recruitment of participants from underrepresented groups. While this method may increase participation of groups that are not likely to participate, it neither guarantees the participation of underrepresented groups nor prevents exploitation of the procedure by groups who will try to stack the meetings with a large number of likeminded participants.(fn14) Alternatively, another standard mechanism seeks to circumvent the problem of under-representation by using a random selection of participants from among the general population. This method guarantees descriptive representativeness. Even so, it does not promise that the best representatives, or at the minimum, those who are most concerned, sit around the table.(fn15) The final two mechanisms often employed are more exclusive in that they either promote participation by lay stakeholders who are unpaid citizens with interest in the issue on the table, or, as is common with governance processes, they con-vene professional stakeholders that are paid to represent organized interest groups and public offices. These last mechanisms are likely to ensure that interested participants (and arguably adequate representatives) sit around the table, but they do not necessarily form a representative group that addresses all relevant interests.

The participant selection model proposed here avoids the tradeoffs the above mechanisms make between inclusiveness and adequate representation. In this respect, the proposed model is more restrictive than these mechanisms, as it requires that, first, all the interests affected by the deliberations be represented around the table, and that, second, potentially the best representatives would speak for these interests.(fn16) This will be accomplished through the two-stage procedure of the model proposed here. The neutral facilitator can engage in selective recruitment of potential participants, while the court can ensure (if necessary, through judicial order) that all the relevant stakeholders sit around the table and are capable of adequately representing their constituent groups.

The participant selection procedure presented in this Article operates within an innovative decision-making model called Constructive Controversy Deliberations (CCD).(fn17) CCD seeks to resolve difficult, value-laden social controversies through processes of stakeholder deliberation administered by trained facilitators and supervised by courts...