Friday, July 31, 2009

The Beer Summit

Once again we see the nation's mediator-in-chief at work in the White House, bringing together the two adversaries in a nasty little conflict, not necessarily to resolve the conflict, and definitely not to determine who was right and who was wrong, but simply to begin a dialogue and raise legitimate issues. I did a post on this today on my political blog, where I initially expressed annoyance that the Gates-Crowley incident was distracting our attention from the important policy issues that the nation needs to resolve this year, but then I ultimately decided that a conversation about racial profiling, police procedures, and whether the Gates arrest can be seen as a metaphor for changes happening in our society, might be a conversation worth having.

But here I think it's worth pointing out how the President's technique seems to have been effective in defusing a divisive situation. To do that, he first had to draw even more attention to an incident that was already distracting him and the nation from some important policy debates, which perhaps caused a slow-down in the progress of health insurance reform bills through Congress, and which perhaps allowed some commentators on both "sides" of the issue to make inflammatory statements that could have made the issue a little more heated. Then he gave the participants, and all of us, and himself, a chance to re-evaluate our initial judgments on this incident. Finally, he achieved reconciliation in the form of turning feuding parties arguing about who was right and who was wrong, into participants in a dialogue in which both are seriously trying to empathize with the other's point of view.

Ultimately, the value of mediation is not in assigning blame, and perhaps its highest value is not even in resolving disputes. Rather, mediation may sometimes be most valuable simply to provide an opportunity for participants in a conflict to try to understand the point of view of their adversaries. This seems to be the president's favorite technique for dealing with almost every situation, and it is irksome to a lot of people who are not interested in trying to understand opposing points of view, and who would prefer to fight and demolish their adversaries, whether foreign or domestic. But for more enlightened participants in the political process, the hope is that through mediation, we can at least have a civilized discourse, and perhaps achieve resolutions that all sides can at least understand.

I can't help but note, however, that at least some of the media's treatment of this incident, and even some of the participants' comments, reflect an unfair lack of appreciation of the important role of the mediator in facilitating these kinds of dialogues. From the New York Times report on the beer summit comes this quote from Officer Crowley:

"Asked about the president's contribution to the meeting, Crowley said: 'He provided the beer.'"

Saturday, July 18, 2009

Is mediation a profession?

I attended a well-organized series of panels sponsored by the Southern California Mediation Association designed to further an ongoing debate over whether certification of mediators should be encouraged. There seemed to be a consensus that the time has come to stop just talking about this issue and start doing something about it, but there are still a lot of questions about how to address certification. There is a strong and understandable desire to build some respectability into the field, and to make sure the people who call themselves mediators are qualified to practice. There also seem to be a lot of people who think that the marketplace and the courts and provider organizations seem to be doing an adequate job of determining the appropriate qualifications for mediators.

Representatives of dispute resolution provider agencies (the AAA and JAMS) seemed ambivalent about the idea, pointing out that if certification were required, they would simply comply with whatever requirements the state or their clients demanded, even if these imposed some additional bureaucratic costs. On the other hand, a representative of the Western Justice Center, which is more oriented to community issues such as gangs or police problems, thought that if mediator certification imposed requirements that were too onerous for their volunteers and staff to meet, they might simply have to invent a new title for these people.

One of the academics on the panel pointed out that there does not seem to be a direct correlation between the amount of training possessed by mediators and their effectiveness. Of course the same might be said of doctors and lawyers and accountants as well, but the comment highlights a dilemma in the mediation field. What does it take to be an effective mediator? Most mediators bring to the field a fair amount of experience in a recognized profession (whether that be law or social work or some other area of expertise) coupled with a fairly short course of training in the techniques and theory of mediation. That kind of background, plus the application of people skills, seems to allow someone to become an effective mediator. So if we certify people who have merely taken a short course in mediation techniques, without also requiring some kind of substantive knowledge and experience, and without also making sure that mediators have the necessary people skills, perhaps we would not be doing enough to insure that certified mediators possess the desired level of skill. On the other hand, if we were to require the kind of extended coursework, testing and internships required in other professions, we might be disqualifying a lot of people who have successfully stepped into mediation without much training, after a career as a judge or attorney or therapist.

One of the things that makes the mediation field exciting is that it is relatively new, even though peacemakers and diplomats have been around since ancient times. I think it is good that college students can now take courses in conflict resolution. That helps balance out the students in military academies who study war-making. I also think it is good that law schools teach classes in negotiation, because we all need to learn how to negotiate better. For the field of mediation to gain more respect, it probably needs to adopt the same accouterments of standards and practices and coursework and journals and tests and licensing that are common to other recognized professions. These are never a guarantee of quality, and they do sometimes function to protect the members of the guild more than the public, but they also help the field define itself and make itself more understandable to the public. By recognizing mediation as a profession or trade, we may help develop the science and practice of mediation so that we all have a better idea of what works and what doesn't work.

Tuesday, July 14, 2009

The Dynamics of Impasse

Often parties to a negotiation will make a certain amount of progress, then get stalled. Each side may have made what they feel are reasonable compromises in their positions, but have arrived at a point that is still distant from the other side's position. Mediators use various techniques to bridge this gap, which may be as simple as calling a break, or may require getting the parties to consider a mediator's proposal. I see it as a process of getting both sides to cross a line they did not want to cross before the mediation, and often the way to make them do that is to make them understand that the other side is making a similar leap of faith.

To break an impasse, it might also be helpful to consider what got the parties into the impasse in the first place. As an example, let's look at the biggest impasse that is facing the people of California right now: the stalemate in the state legislature between Democrats and Republicans over how to deal with a revenue shortfall of more than $20 billion. Although the Democrats control the legislature, there is a two-thirds requirement for raising taxes, giving the anti-tax Republicans approximate parity in power. The Democrats refuse to cut spending sufficiently to bridge the gap; the Republicans refuse to raise taxes. So the state has reached paralysis, and has even resorted to issuing IOUs instead of cash, which it does not have. To a mediator, the obvious solution is some combination of tax increases and spending cuts, and the question is what is keeping the parties from considering any sort of reasonable compromise solution.

One possibility is that each side actually believes its own rhetoric. The Democrats believe that drastic spending cuts would create a worse situation for the state than being unable to pay its bills; and the Republicans similarly believe that it would better for the state to fall off a cliff than to raise taxes by another penny. Of course, both sides can't be right, and they're probably both wrong, but it's difficult to talk them out of their positions. What they need to do is listen to each other more, which might make some people at least wonder a bit about whether all of the truth and right are on their side.

A second possibility is that the parties are so hung up on the past that they cannot address the future. This frequently happens to parties to a lawsuit as well. They are involved in a process that seems to reward them for making charges and counter-charges, for assessing blame and seeking penalties for past misdeeds They are trying to win the blame game, and are not interested in playing a different game, called solving the problem. I have been arguing about the California budget crisis on my political blog, one of the joys of blogging being the opportunity to trade jabs with people of differing views, and when I suggest that the state needs to solve this problem with a combination of tax increases and budget cuts, I am met with the counter-argument that it is all the Democrats' (and perhaps the governor's) fault for letting spending get out of control in the first place. The logic being that if it is all one side's fault, that side should pay. Why should the other side have to sacrifice its principles so as to solve the problem? You can never totally get past the blame game in a mediation, because considerations of fault must enter into the parties' assessments of a fair outcome, but sometimes you do have to point out that the only way to resolve the issue of fault is through a different process that carries its own substantial costs and risks, and doesn't always necessarily arrive at the result that the parties are expecting. The negotiated resolution has to move beyond the fault-finding stage.

A third and perhaps the most important reason for impasse is based on calculating the political pressures on each party. Right now both parties in the state legislature perceive some political gain from holding fast to their respective positions, and both would also face substantial political costs in surrendering their positions. Any Republican who votes for a tax increase is likely to be defeated in the next primary by a more strident anti-taxer. Similarly, Democrats who vote to allow drastic cuts in programs that benefit their constituents will face the wrath of the voters also. This dynamic is not going to change until these politicians perceive the political costs of failing to reach agreement as greater than the political costs of making an agreement. These kinds of pressures can also come into play in a private negotiation. Parties often have to explain a settlement to the powers that be, whether that is a spouse or the board of directors. Sometimes it is easier to keep the dispute alive and fight for your position, even in the face of mounting costs and possible defeat, than it is to explain how and why you gave in to make peace. As long as you keep fighting, you can continue to hold onto your own conception of the worth of your position. Only after you either settle or allow a neutral party (the judge for litigants, or the voters for politicians) to decide your case, do you have to face the reality of what your case is actually worth.
(photo from San Francisco Sentinel)