Sunday, August 24, 2014

Philosophy

An entertaining new book on philosophy (who would have thought there could be such a thing) called Plato at the Googleplex, transports Plato to various settings in our modern world, and attempts to show that we are still grappling, or should be grappling, with many of the same problems that Plato addressed in dialogues written more than 2000 years ago. The book's Plato character makes you wonder whether, for example, Google does a better job of organizing knowledge than the ancient philosophers did, or whether we've made any progress in dealing with child rearing or love or figuring out how to live a better life.

This "Plato" leads the people who pass for our modern dispensers of wisdom (such as search engine specialists or Tiger Moms or advice columnists or cable news producers) through the kinds of Socratic dialogues meant to help them think about what is fair, or what is most satisfying, or how best to organize society, or what ideals are most important.

Naturally these dialogues made me wonder whether philosophy as exemplified by these Socratic dialogues has any relevance to the practice of mediation. It seems obvious that parties involved in conflict also need help in identifying what is most important to them, what results seem fair and why, and similar considerations that enter into resolving a dispute. In that way, the mediator is acting in some respects like a philosopher, by challenging parties to consider their noblest impulses, and by asking people to step outside themselves to try to imagine what would constitute a just resolution for all parties.

If we try to resolve a dispute only by making predictions about how the legal system might handle that dispute, we might fairly be accused of acting like we are stuck in Plato's cave. We are blinding ourselves to other considerations that might provide a better solution. On the other hand, if we venture outside the legal system, how do we identify the values that would lend legitimacy to mediated resolutions? This is where philosophy might be able to help.

We know that mediators sometimes need to act as an amateur psychologist, an amateur economist, an amateur diplomat, an amateur judge, or apply other kinds of expertise to help resolve conflict. That's what makes the practice of mediation so interesting. We might not have realized that mediators also need to act as amateur philosophers. But in helping parties move beyond vindictive or selfish concerns to discover their best selves, as well as finding principles that can guide them to resolution, mediators are practicing philosophy whether they know it or not. Reading Plato at the Googleplex makes me want to dig out my old copy of the Republic to explore further whether these ideas have practical value in dealing with modern problems.

Thursday, August 14, 2014

Marching together

What a remarkable turnaround we witnessed today in Ferguson, Missouri, where five days of protests in the wake of the shooting death of Michael Brown this past weekend, had been met with police armed to the teeth with military weapons and tactics. But when Governor Nixon finally decided to replace the local police force with state highway patrol officers, the situation changed almost immediately. Today the new representatives of law enforcement started marching with the protesters, and a much different atmosphere returned to the streets.

Yesterday law enforcement viewed the protesters as the enemy, and felt they had to meet them with force to preserve order. All that did was inflame the situation, and exacerbate the conflict.


Today, law enforcement took the opposite approach. First the new commander, Ron Johnson, renounced violence, saying his officers would not be carrying and using tear gas, as the local police had. He apologized for the prior use of tear gas, even though he had had nothing to do with that decision. Second, Captain Johnson emphasized the need to listen: “Sometimes you just have to let people speak and make yourself listen. I used to tell my kids when they were small, open up your listening ears.” Third, Johnson identified common interests with the protesters, saying that "we all want justice. We all want answers." Finally, Johnson marched alongside the protesters.


In one day, this new approach achieved what peacemakers dream of, turning a confrontation where both sides distrust the other, and respond to each other's provocations with forceful opposition, into a joint effort where both sides now appear to be working together to solve a problem.

Once we drop the war mentality, once we stop treating our opponents as the "other," once we identify common goals between ourselves and the opposition, we find ourselves no longer needing to fight our opponents, but instead marching alongside them toward resolution. Note that the parties haven't yet resolved the underlying problems, and haven't suddenly decided they agree with each other. Far from it. But they are approaching this conflict with a much different attitude. Let's hope this new spirit holds.

Tuesday, August 12, 2014

Improvisation

Last night I had a chance to assist at an improvisation class, playing the role of mediator to actors working out various conflict situations. The class arose out of some discussions with the teacher, Rob Watzke, about the similarities between the techniques used in improvisation and mediation. In both situations, careful listening is imperative. You must be sensitive to the content as well as the emotional underpinnings of statements made by other participants in order to advance the process. In both situations, it is also important to stay positive. Whatever new bit of material is offered to you by a fellow improviser, you must use it. You cannot reject it, or the scene dies. Similarly, in mediation, it is better to thank the other side for their proposals, and make a counter-proposal, rather than to simply reject or attack the other side. In both improv and mediation, creativity is also key to success. Improvisers are encouraged to come up with all kinds of crazy suggestions, sometimes the crazier the better, as these fresh additions lead the scene in new directions. Mediators also encourage the participants to brainstorm to come up with creative solutions that might satisfy the interests of both sides.

The actors I had a chance to work with were very talented and a lot of fun. But after watching them create some warm-up scenes, I could see some of them having difficulty doing scenes that asked them to try to win an argument, but most had no trouble at all enacting an argument they were trying to lose. It seemed that improvisation training makes it difficult for these actors to do what comes naturally to people embroiled in real conflict. Parties in conflict are generally focused only on proving their own points. They are unable even to recognize what the other side is saying. To the extent they even pay attention to the other side's points, they do so only to prepare their response. That's why a mediator is often needed to transmit the other side's perspective in a way that might be absorbed.

Parties in conflict could be compared to actors who work from memorized scripts. They only listen to the other side enough to recognize their own cue to speak. Actors trained in improvisation, on the other hand, are always trying to build something from the information the other player is giving them. They had some trouble with an assignment that simply asked them to try to "win" the argument, because they couldn't help but pay attention to the information the other party was giving them, and try to incorporate it into the scene. Their training also kept them focused on guiding the scene toward a satisfying resolution, rather than going around in circles pointlessly, as people in actual conflict tend to do.

So when my turn came to act as mediator in various scenarios that resembled some I have handled in real life, I found these actors very good at expressing emotion and setting up a conflict. I was also amazed at all the new material they kept adding to the conflict. But then I found it was much too easy to lead them to resolution. These people were actually trying to search for the underlying motivations that led themselves and their partner into the conflict, and find their own ways out of it. So we quickly found out, for example, that the guy complaining about his neighbor's barking dog was only doing so because of his own childhood trauma at seeing the death of a family pet; and that the store manager was only piling an unfair workload on an employee because she had broken off their romantic relationship, but that she actually wanted him back if he would only change one little thing about himself. (This was probably the only employment mediation I will ever handle that was resolved by a circumcision!) In the real world, parties in conflict work hard to avoid revealing these kinds of vulnerabilities. And that's why mediations in the real world take hours, while we were able to wrap up cases on the improvisational stage in about ten minutes each. It made me think we should send divorcing couples or feuding business partners to improv class so they can learn some techniques that might make the process go a lot quicker and easier.


Thursday, July 24, 2014

Prisoners

In the first episode of the second season of Orange is the New Black, the series presents a variation on the prisoner's dilemma problem that is often discussed in mediation programs and texts. Piper and her former girlfriend Alex both have to testify against the drug kingpin they used to work for. Alex persuades Piper to lie and say she had no contact with the guy, otherwise he might take reprisals against them both. After giving her testimony, Piper finds out that Alex in fact told the truth at the trial, leaving Piper exposed to a possible perjury prosecution and an increase in her sentence.

In the prisoner's dilemma scenario, an opportunity to communicate as well as familiarity with the other player's past moves is supposed to allow each player to learn whether or not they can trust the other, and if trust is established, to encourage greater cooperation and mutually beneficial decisions. In the show, the two players did have an opportunity to communicate and also had a long history together.  That is what leads Piper to trust what Alex was telling her and follow her advice. What she failed to consider, however, was that this long history should not have led to greater trust but instead to greater suspicion. In season 1 we found out that Alex had already played the defector card once, by betraying Piper and landing her in prison in the first place. In that situation, the parties' history and knowledge of each other's actions should have led Piper not to trust Alex again.

Piper seems to have such a strong need for love and acceptance that she trusts Alex even when she should not. I have seen it happen occasionally in mediation that a party develops (or previously had) warm enough feelings for the other side, that they make deals that they might later regret. Communication and trust are wonderful things , but nobody wants to be played for a sucker either. Sometimes it's a good idea to stay on your guard even while the other side is trying to play on your warm and fuzzy feelings. The way to test a deal is to consider not only whether the deal will work if the other side lives up to it, but also whether the deal makes sense even if the other side defaults.

That's a reminder that it is the lawyer's job to provide that kind of dispassionate advice. Piper's real mistake in this episode was failing to follow her lawyer's good advice, and instead listening to her untrustworthy friend.  

Saturday, July 19, 2014

War and peace

Conflicts that have recently erupted into violence in Gaza and in Ukraine raise the question of how to end the killing and lead the parties back to a less destructive process. President Obama yesterday, in his press conference following the tragic downing of a Malaysia Airlines passenger jet over the Ukraine, attempted to respond forcefully without further inflaming the situation. The president was careful not to jump to any more conclusions than are warranted by what we know so far. He was firm in condemning the responsible parties, yet careful to emphasize the goal of de-escalating tensions and violence so as to prevent further loss of life.

In short, it was just the sort of speech that was bound to infuriate hawks such as Senator McCain who called the president's response to the fighting in the Ukraine "cowardly." At the same time, it wasn't the kind of speech likely to inspire the president's supporters either. What would probably stir people more might be a Rooseveltian ("day that will live in infamy") or Churchillian ("fight on the beaches") type of response to the outrageous act of violence that appears to have been committed by Ukrainian separatists with the help of their Russian patrons.

But remember that both Roosevelt and Churchill made their stirring remarks in an effort to whip up national resolve to fight and defeat an enemy that had already brought war to their shores. Our side needed to be mobilized for all-out war. President Obama's much harder challenge is to stir up the desire for peace, not only to avoid a military confrontation with Russia, which no responsible person wants, but also to reduce tensions in the Ukraine. He faces a similar task dealing with the situation in Gaza.

Even though the United States supports the Ukrainian government in its struggle against the separatists, and supports Israel in its struggle with Hamas, the president was attempting to play the role of mediator. To do that you have to emphasize the goals of fairness and impartiality. You have to be careful not to exaggerate threats or to accuse the enemy of anything more than you can prove. You have to give your adversary a face-saving way out of a dangerous situation.

Laying out a path to peace in this way is far from easy. It's certainly not cowardly. The challenge for the president, as for any would-be mediator, is to persuade the parties that they can accomplish their goals more readily by peaceful means, and that further retaliation will only make the situation worse. Perhaps to make peace, we have to talk less about the grand designs and historical claims of the respective parties, and turn the talk toward such mundane topics as implementing a ceasefire, conducting an independent factual investigation of plane wreckage, restricting arms shipments to the combatants, and calculating the damage to lives and property inflicted by the scourge of war. If the parties can focus their effort on cleaning up the mess, maybe they will consider less destructive means of managing these conflicts.

Monday, July 14, 2014

Dawn of the Planet of the Apes

Surprisingly, the second in the new series of Planet of the Apes movies (Dawn of the Planet of the Apes) presents a pretty good illustration of the forces that drive groups into violent conflict, or provide opportunities for diplomacy. As the story begins, we find a rapidly-evolving colony of apes living in the woods, while a group of humans, perhaps all that is left of humanity (most people having been wiped out by a virus and the mass chaos caused by the virus) are struggling to survive in what's left of San Francisco. An exploring party makes contact with the apes, and both sides have to decide whether to go to war against the other, or find a way to co-exist peacefully.

On each side, there is an advocate for peace, and a counter-advocate for war. The apes' leader, Caesar, still has kindly feelings toward humans, and thinks they might be able to establish trust and respect each other's boundaries, while his rival Koba wants to keep humans away or destroy them. The two points of view on the human side are represented by Malcolm, who asks for a chance to negotiate with the apes to allow the human city to re-build, and Dreyfus, who is skeptical of this diplomatic mission, and makes preparations to fight.

What I liked about this set-up is that there is a logic to each of these four points of view. The dreamers on each side who hold out hopes for peace are correct in pointing out the awful toll that war would take. They recognize the risks, but only ask for a chance to test whether a means can be found for both groups to achieve their goals without threatening the other's. On the other hand, those who advocate for war are correct in suggesting that the other side cannot be fully trusted, and that peaceful coexistence might never be possible.

The movie also demonstrates the powerful roles that fear, distrust, selfishness and bias all play in leading both sides toward violent conflict. Peace is difficult to achieve, and fragile to maintain. It requires individuals to get to know and understand individuals on the other side. It requires trust, which can easily be broken. War seems natural for those not ready to shed their prejudices and fears.

An important lesson for conflict resolution is well illustrated in this film. That is that you generally can't use logic and reason to persuade people to avoid taking a confrontational approach. The hawks will not be persuaded by logic, and their arguments are just as strong as those of the doves. Instead you have to appeal to deeper emotional needs, such as self-preservation or brotherhood, in order to avoid destructive conflict.

(For those who prefer historical drama to science fiction, an even better movie with similar themes is Ridley Scott's Kingdom of Heaven, illustrating the forces that drove both sides to war leading up to the siege of Jerusalem in 1187.)

Sunday, July 6, 2014

Joint sessions

I heard about a mediator who started a session by asking all the participants to spend some time talking about their personal histories and interests, presumably in an effort to get the parties to see each other as human beings and establish connections that might help them resolve the dispute. Lo and behold, these parties did resolve the dispute to each side's great satisfaction, but at least one side later reported that they disliked this touchy-feely aspect of that mediation. So even though this technique was proven to work well, it still made one of the parties uncomfortable enough that they would probably prefer a more conventional and perhaps less effective approach.

Mindful of stories like that, I try to make sure parties buy into whatever process we might be following in a mediation before proceeding. So I don't force participants into joint sessions. I also don't require people to share details of their private lives, or sit around the campfire and sing Kumbaya. But I do generally encourage parties and attorneys at least to think about doing a joint session at some point in the process. I also tell them we can retreat to separate rooms if they feel uncomfortable about continuing.

In Southern California, it's often an uphill battle to persuade parties and attorneys even to consider participating in a joint session. For some reason, joint sessions have a bad name here, unlike in a lot of other places where they are apparently still the norm. Maybe that is just the way the practice has evolved. Maybe it is because parties in mediation have somehow gotten the wrong idea about what is supposed to happen in a joint session. Or maybe it's because some of the mediators who still hold joint sessions are doing them wrong.

As an example of the common reluctance to engage in joint sessions, one of the attorneys in a case I mediated recently told me almost as soon as he walked into my office, that he disliked joint sessions and thought a joint session was out of the question in this case. That would exacerbate the conflict further, he told me. It would give each side an opportunity for chest-thumping that would only inflame passions on the other side. The parties were already angry enough with each other, and probably shouldn't be in the same room. This was far from the first time I've heard these perceptions expressed.

I responded that if we did decide to do a joint session, I didn't expect to see any chest-thumping. I had no desire to listen to each side's attorneys give a preview of their opening statement or their closing argument at trial. I don't think that is productive. Instead, what I suggested we might do in a joint session was to exchange information that might be helpful to resolution of the case. Information about the parties' respective future business plans, for example. Information supporting the parties' respective damage claims, to the extent that had not already been exchanged. Exchanging that kind of information directly across the table is often more efficient that requiring the mediator to go back and forth to convey questions and answers. It's also helpful to dispelling some of the suspicions and distrust that builds up between opposing parties in a lawsuit.

A second purpose is to allow the mediation to be conducted in a more transparent manner. Rather than wondering what is happening in the other room, each side can hear directly from the other side what is troubling them, and what is important to them. If mediation works by means of communication and understanding, that process is often facilitated by face-to-face contact. Not always, mind you. Sometimes parties are more receptive to having the mediator convey information indirectly. But you lose a lot of body language and emotional content that way.

Finally, in the ideal situation, a joint session can allow the parties to brainstorm together to design a solution to the conflict, rather than work at cross-purposes and in opposite directions. But it takes some time to break down the barriers of distrust and hostility that prevent parties from working together.

Eventually, the lawyer who adamantly told me at the beginning that he was opposed to joint sessions became so curious about what was going on in the other room, that he finally decided he wanted to go in and meet everyone, and convey to them some of the things that were motivating his client. And he did. And we eventually settled the case. With only a small amount of chest-thumping.


Thursday, June 26, 2014

Multi-tasking

Some interesting back-and-forth occurred during the last panel of the day yesterday at the 2014 ODR conference, when David Bilinsky, a legal practice consultant, described the high tech tools he uses in teaching law students. To oversimplify his presentation, these tools allow students to conduct side discussions during lectures in a chat feature that can be employed either during an online or even an in-person class. The theory is that these side chats can expand on the lecture, and reinforce learning by facilitating more interactive participation.

This idea rubbed some people in the room the wrong way, especially those of us who pre-date the online revolution and went to school in the days when teachers constantly told us to stop chatting with our neighbors and pay attention. Even though multi-tasking is now the norm, a lot of us still wonder whether it can really done effectively. Texting while driving, for example, has been known to cause a lot of deadly accidents.

This was the point in the program where the ideas behind using technology to increase efficiency and do things that we are not capable of in the real world, came into direct collision with one of the fundamental ideas behind mediation, which is that active listening and understanding are key to the success of that process. Especially if we are trying to teach conflict resolution and negotiation skills, where we need to impart the importance of paying close attention to what others are saying, staying attuned to the moment, and reflecting empathetically on what is being communicated, does it make sense also to encourage the listeners of those lectures simultaneously to chat with their fellow students about whatever related or unrelated topics may come to mind during the lecture? Well, said some of the panelists, students these days are doing that anyway. I understand that, but wonder whether what we really need to be teaching is how to put down the cell phone and the laptop and just listen carefully to what somebody else is saying without letting your own activities get in the way.





ODR 2014

Attending the 13th International Online Dispute Resolution Forum, being held at Stanford Law School, the first time the conference has taken place in the United States, offers a glimpse into the future of conflict resolution.

Ethan Katsch, dubbed the "father" of online dispute resolution, started the day by telling us that while it began as an outgrowth of ADR, ODR is developing into a distinct field with its own expectations, assumptions and values. I think this might be true, but I'm skeptical based on the evidence so far. Online tools are still mostly applied to allow us to conduct traditional litigation, arbitration, mediation, or negotiation, in more efficient ways.

As a number of speakers told the group, traditional practitioners are often highly resistant to online dispute resolution. John Pardun from JAMS said that about 80 or 90% of their clients are either unfamiliar with ODR or unwilling to use it. India Johnson, the CEO of the American Arbitration Association, mentioned that many of their panel arbitrators are highly resistant to technology. And Kent Walker, general counsel at Google, speaking about patent litigation, thinks that the difficulties of calculating the commercial value of patents, as well as the likelihood that they will be upheld in court, make these cases unsuitable for ADR or ODR. (I wonder about that, since I often find that the great uncertainties of litigation are helpful to mediated resolution of complex commercial disputes: if neither side is sure what something is worth, that leaves a lot of room for potential agreement.)

These attitudes are bound to change, and the change seems to be occurring from the bottom up, rather than the top down. One of the themes of the day concerned the vast numbers of disputes that are too small to be resolved by the traditional justice system, and ODR's potential to efficiently serve this vast market. Services like Rocket Lawyer, Legal Zoom, Smartsettle, Modria, and eLance, all of whom had representatives at the conference, have developed efficient ways of delivering conflict resolution services to parties for whom the traditional court system makes no sense. Many of these consumers are not well served by traditional ADR either.

Potentially this enormous under-served market could even absorb a lot of the lawyers whose workloads have been affected by the shrinking market for traditional legal services. Maybe there is hope that the dawning new age of robot lawyers will create some new opportunities for human lawyers as well.


Sunday, June 22, 2014

Conflict resolution

Mediators often describe the process they lead as antithetical to the traditional justice system. I do it myself, sometimes explaining to the participants in a mediation that we do things in mediation the opposite way from court. For example, I might point out that in a courtroom, the judge is the most important person, and arguments in court are directed at the judge; while in mediation the parties are most important, and arguments are directed at each other.

Mediators also sometimes try to persuade parties that the process is much better than litigation. Litigation is "bad" because it's expensive; or because it's adversarial; or because it produces far from perfect results. Mediation is "good" because it's consensual; or because it's cathartic; or because the parties control the outcome. I use these arguments myself sometimes, in an effort to persuade parties to resolve disputes in a mediated setting to avoid the pain and expense of continued litigation.

Rather than think of litigation and mediation as two competing systems, however, it might be more accurate to consider that they are both aspects of a more complete whole. When we choose to litigate, for example, we might be surprised to find ourselves in a less than wholly-adversarial process. Disputes between the parties in litigation--from something as mundane as getting an extension of time to file a pleading, to discovery disputes, to more substantive disagreements--are usually best resolved by a process of negotiation. Indeed, many courts require that parties attempt to meet and confer to resolve such disputes before bringing them before a judge. Many judges get very involved in settlement negotiations, or at least encourage the use of settlement conferences, or face-to-face negotiation to settle cases. And the vast majority of contested cases in litigation end in settlement, through a process of negotiation, not by trial.

When we choose to mediate, we do it with the backdrop of the court system and the entire body of legal principles and court cases behind us. We can disregard that backdrop if we choose, allowing the parties to reach results very different from the way the legal system might resolve them. But more often parties, their attorneys, and the mediator, all treat the traditional justice system as a touchstone to guide their private attempts to resolve the dispute. So we often find ourselves in mediation attempting to predict how a judge or jury might decide the controversy before us, assigning weight to the probabilities of an outcome in favor of one side or the other. Or the parties might make the same legal arguments they would make in court, arguing that the result should favor one side or the other because that is the result the law demands. In that situation the legal system can serve as a measuring stick to assess the fairness of a proposed resolution. Some mediators function very much like judges, advising the parties on how the case should be resolved under the law. And parties sometimes look to the mediator for an authoritative-sounding resolution.

It seems that in nearly every dispute, parties use a combination of adversarial and non-adversarial means to reach resolution, and parties always retain the full spectrum of tools at their disposal. So even when parties find themselves in court, they know they will probably negotiate their way out of court. And when parties decide to mediate, they still keep the hammer of the litigation system in their back pockets if they cannot resolve the dispute through mediation. In other words, mediation never operates completely outside of the traditional legal system. Even when we try to ignore it, that system always intrudes, like an elephant in the mediation room.

One reason I decided to change the name of this website to "Conflict Resolution" is to recognize that the process of conflict resolution is all of a piece. Just as von Clausewitz recognized that war is the continuation of politics by other means, so litigation is merely a more adversarial form of conflict resolution. We need not view either litigation or mediation as "bad" or "good," nor see the two competing processes as in irreconcilable conflict with each. They are both tools, to be used as appropriate, to help resolve conflict.