Scaling Up Deliberative Democracy as Dispute Resolution in Healthcare Reform: A Work in Progress

By Menkel-Meadow, Carrie | Law and Contemporary Problems, Summer 2011 | Go to article overview

Scaling Up Deliberative Democracy as Dispute Resolution in Healthcare Reform: A Work in Progress


Menkel-Meadow, Carrie, Law and Contemporary Problems


I

INTRODUCTION

When healthcare reform was being debated in the United States last year, many groups--including members of Congress, White House representatives, and other public and private policy groups--attempted to hold and facilitate "town hall" meetings to demonstrate how ADR-like processes, such as deliberative democracy and consensus building, could be used to encourage deliberative consideration of healthcare proposals. Instead of model deliberative sessions, however, most of these sessions turned adversarial (and were then subverted for more "interrupted" democracy), as they were "sabotaged" by opponents of national healthcare reform. This paper reflects on the deliberative democracy and consensus building literature that suggests how less-adversarial processes might be used to achieve good policy making and contrasts the theory with what actually happened in practice last year. How does our theory and practice of deliberative democracy have to change to actually be effective? Was what happened peculiar to healthcare policy making, or are there lessons to learn generally for deliberative democracy theory and practice?

When President Barack Obama was elected in 2008, hopes were high for substantive reform in several important domestic arenas--most prominently, healthcare, labor law, immigration, and education, along with efforts to deal with the economic recession. (1) Shortly after his election, several bloggers and fellow dispute resolution activists suggested that "we" should advise the President to make use of our "new" field of consensus building, facilitated deliberative democracy, public fora for policy making, and various dialogue techniques to engage the public in participating in these reforms.-"

Deliberative democracy is both a political theory (3) and a practice that has built upon insights from the conflict resolution movement of the 1980s. (4) The modern ADR ("Alternative" or, more commonly now, "Appropriate" Dispute Resolution) movement was born of dissatisfaction with the high-cost, inefficient dispute processing and unnecessarily brittle or binary solutions of the conventional legal system and courts. At about the same time, deliberative democracy ideas were birthed out of dissatisfaction with similarly polarized and inefficient decision making in our political system. Yet, as these two social movements (ADR and deliberative democracy) have attempted to deal with similar issues and processes, they have offered slightly different rationales and practices, with important consequences for what recently occurred in the "failed" town-hall meetings about healthcare reform.

In this article, I explore the rationales and practices of deliberative democracy and conflict resolution as they were enacted in the so-called town-hall meetings (5) about healthcare in the United States in 2009 and offer my analysis of what went wrong and why. The failure to adapt old conceptions of town-hall meetings to modern political realities in the healthcare-reform battles cautions us to reconceptualize both theory and practice as we try to "scale up" conflict resolution methods for larger, highly conflictual disputes at the societal, not individual, level. At its core, my argument is that naive political and philosophical theories about the use of "reason" in democratic deliberation fail to take adequate account of two other major modes of modern discourse: bargaining and affective (involving emotion and ethical, religious, or strongly held values) or feeling-based arguments. If dispute resolution techniques based on ADR principles of focusing on parties' needs, interests, and underlying values are to be used for major policy decisions aiming to increase polity participation in decisions affecting the lives of all, then those techniques (and the theories on which they are based) may require some adaptation to largescale moments of deliberation and decision making. At the conclusion of this article, I offer some suggestions for both reconceiving and restructuring such processes for different kinds of uses for different kinds of issues. …

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