Orr: Mediation best hope for water deal

Kevyn Orr

By the end of this week, leaders from the city of Detroit and Oakland, Macomb and Wayne Counties could do something truly remarkable: set aside more than four decades of stalemates and mutual mistrust to create the Great Lakes Water Authority.

GLWA will bring more operational transparency and give the region's residents and their elected leaders more control over water and sewer rates. The new authority will also be able to shed numerous liabilities and permit the counties to assume greater control over their retail customer base.

Getting to this point has been arduous. Indeed, there have been many times when it looked like the concerns of the past were too much for the various parties to overcome. Make no mistake, we would have not made it to this point without the federal mediation process that began during Detroit's bankruptcy. This effort is aided by the thoughtful and firm leadership of U.S. District Judge Sean Cox, who crafted a resolution to the decades-long Clean Water Act case ending 30-plus years of federal oversight of the Detroit Water and Sewerage Department, and that of Gov. Rick Snyder, whose positive focus on results over recrimination have helped create the right environment in which to hammer out a workable solution to this nagging problem.

The mediation process has given all the parties a seat at the table. It provided a forum to air differences and consider counter proposals in an open and collegial environment without concern that a proposal would be taken out of context and blasted across tomorrow's headline. Those that participated in mediation have enhanced the process to the betterment of the the systems' customers. Those that have withdrawn from it have robbed their constituents of the ability to make any agreement that much better by the value of their participation.

To those not participating in the mediation process, it may seem shrouded in secrecy and unfairly hidden from public view. However, the confidentiality imposed on this process is both common and necessary for the parties to have full and frank discussions. Indeed, the Federal Rules of Evidence specifically provide that such settlement discussions are confidential and cannot be used against a party in a courtroom. And, from personal experience throughout my career, I know that mediations do not succeed if participants fear that such discussions will be used against them in the future or taken out of context and made public.

Far from being an affront to democracy, the mediation process creates a venue for all participating members to have a voice in how the region's water and sewer system is run, how rates are set and how to provide adequate resources to both make undeniably overdue capital improvements and create adequate funding for retail customers unable to pay their bills. This is real progress that will positively affect each and every resident in Southeast Michigan.

Retired U.S. Bankruptcy Judge Steven Rhodes perhaps said it best recently when he described Detroit's own bankruptcy as a "contracted democracy." It is a process set up, by the people, to allow for the rational and reasonable resolution of debts and differences between the people. The mediation process created by and allowed for under federal law was envisioned as a way to facilitate and bring about just such resolutions.

I am confident that without federal mediation, Detroit likely would still be in bankruptcy with many of its creditors and stakeholders litigating and jockeying for a better position. There would be no "Grand Bargain" that, among other things, preserved public pensions and protected the city's art. Our largest creditors would still be demanding payment on bad debts that the city simply could not pay instead of becoming partners in this region's renaissance. And a truly regional water system would be out of reach.

Some say that mediation is gagging the public discourse. But those who hold this position may be allowing themselves to be stuck in the process instead of being participants in a solution. Mediation may not be perfect, but it is a far measure better than the intractable politics that have clearly impacted the relationship between the city and the suburban community for far too long.

This week's choice is clear: we can drive to Eight Mile and turn our back on the person on the other side or we can reach across that symbolic divide and shake on a deal that will move the region forward, together. I sincerely hope that all of the parties will rise up and grab this opportunity, again showing the country, if not the world, that the great state of Michigan and the city of Detroit and Wayne, Macomb and Oakland counties have once again demonstrated exemplary leadership.

This is a truly historic opportunity that has put a seemingly unreachable achievement at the region's fingertips. Let's not fail another generation by letting it slip by.

Kevyn D. Orr is the former emergency manager for the city of Detroit.