Dimensions of Negotiated Rule- Making: Practical Constraints and Theoretical Implications
DANIEL J. FIORINO
One of the more interesting applications of alternative dispute resolution (ADR) techniques in recent years has been to administrative rule-making. In theory and practice, negotiated rule-making differs fundamentally from more typical uses of ADR techniques, including site-specific mediation, minitrials, or arbitration. Its purpose is less to resolve conflict than to formulate policy that is prospective and general in its application. The representational requirements for negotiating rules are thus far more substantial than they are in resolving more specific disputes, such as the design or siting of a treatment facility or the construction of a highway through a wetland. It is in this respect that negotiation enters the realm of political theory. Because negotiation allocates costs and benefits of government action at a societal level, it also enters the realm of economic theory and analysis. In altering the role of the agency in the rule-making process and its relations with outside groups, negotiation raises issues of administrative law. Finally, by establishing a structure for outside parties to engage in policy deliberations with government officials, negotiation raises issues of democratic process and p articipation.
What may be most distinctive about the application of ADR to rule-making is its very pragmatic orientation. Above all else, ADR is a form of practical problem-solving that seeks to define the sources of disagreement and, through application of a set of group process techniques, to bring affected parties toward a consensus. Regulatory negotiation reflects this orientation by establishing a process for identifying interested parties, assessing their interests, determining the issues and their negotiability, searching for common ground, and working with the parties toward consensus. Like the ADR field generally, the emphasis in negotiated rule-making has been on results, with less of a focus on theoretical