Saturday, October 20, 2012


I posted something on my political blog about two competing ballot propositions before California voters this November. Both aim to improve the state's financial condition and raise money for education, but each attacks the problem in a somewhat different way. One is sponsored by the governor and the other by a private organization. Polling has indicated majority support for the governor's proposition, but now there may be a real danger that both propositions go down to defeat. Why? Because the competition between the two measures has sparked negative messages by each side against the other.

As soon as we have two ideas before us on how to fix a problem, we naturally start comparing them to decide which one we like better. We might think one idea is good, but another is better. The human mind doesn't always support that kind of subtle distinction, however. Once we start advocating for the idea we prefer, we can't seem to keep from attacking the idea we don't like as well. Instead of arguing that one idea might be good, but the other one is better, the argument starts to sound like one idea is good, and the other idea is bad. Supporters of each idea form two different camps, and point fingers at the other. The resulting negativity may result in enough "no" votes for each proposition, even from voters who support the general idea of more money for schools, that will cause both propositions to go down to defeat. If that happens, both camps will probably blame the other for the defeat.

We see this tendency among groups in all kinds of conflicts. Members of my family might support the general idea of going out to eat, but then break into warring camps over whether we should choose a Chinese or Italian restaurant. Parties in business disputes come up with two different solutions to a problem, each of which might be more advantageous to one side, but both of which are better than the continued conflict. If they cannot agree on a solution, however, the conflict continues, and the problem does not get solved at all.

With regard to the ballot controversy, one solution for voters who support the general idea of more funding for education, is to vote yes on both propositions; alternatively to vote yes on the one they prefer and abstain on the other. If you support one idea, that doesn't necessarily require you to try to defeat a competing idea. That path can turn "win/lose" into "lose/lose." It's better to stay open-minded to allow an acceptable solution to succeed. To get to "win/win," the proponents of two competing visions should work together to craft a joint solution they can both live with.

Saturday, October 13, 2012

Joint Sessions

I had a chance a while back to attemd a training session with Gary Friedman, a mediator in Northern Calilfornia, who is known as one of the foremost practitioners of joint session mediation. In fact, Friedman insists on conducting mediations start to finish with all parties in the same room. He will not even read mediation briefs marked as confidential, and he refuses to hold any information discussed with him during a mediation in confidence with respect to the other parties. If the parties to a mediation run by Friedman want to hold a private caucus, Friedman allows that, but they have to do that without without the mediator present.

Since I am also a believer in joint sessions, I was very interested in learning how Friedman does it, and I followed up the training session with Friedman by buying his book, Challenging Conflict: Mediation Through Understanding, which I found very worthwhile. The key word in the title is "understanding," which Friedman repeatedly emphasizes is the essence of his technique. If you agree that the best means of resolving conflict is bringing the parties to a better understanding of both their own situation as well as the perspective of their adversary, then it makes a lot of sense to suggest that the best way to achieve that understanding is for parties to communicate directly with those with whom they are locked in conflict. If the mediator is shuttling back and forth from room to room, the parties are denied that direct communication.

But locking the parties up in the same room is not sufficient. If the parties just use that opportunity to reiterate their positions, and continue their argument, a joint session might devolve into a shouting match that does not bring them any closer together. The mediator's job is to prevent that from happening. We do that by making sure that what each side says is heard and understood. One way to do that is to use a technique Friedman calls "looping," where the mediator summarizes what a party has just said, and then checks to make sure he has it right. In an earlier post, I described an even more sophisticated technique called "affect labeling," where the mediator identifies the emotional state of the speaker.

I also find it helpful to coach both sides about the value of joint sessions before we start, and how to best use our time in that setting, explaining that the purpose is not to practice our opening statements and closing arguments on the other side, but rather to genuinely listen and try to understand the other side's perspective on the conflict. Often the parties, and especially the attorneys, are reluctant to participate in a joint session, as they have become comfortable with the prevalent caucus style of mediation. I often have to spend some time trying to persuade people of the value of getting all the parties in the same room. Usually, but not always, participants are willing to try it, despite their reservations.

Unlike Friedman, I rarely keep parties in the same room for the entirety of the mediation, nor do I consider that necessary, though I can appreciate the ideal of conducting the entire mediation in a transparent manner. So I might start the mediation with short caucuses with each side, then proceed to a joint session, and then back to caucuses or other groupings, and then perhaps back to a joint session. All the moving around keeps things lively. And when an attorney or party who starts out skeptical of the value of joint session, tells me at the end of a session that he or she now sees the value of trying it, I feel we have accomplished something important.

Friday, October 12, 2012


However shaky the European Union is today, whatever its deficiencies, it still deserved the Nobel Peace Prize, for its contributions to peace over decades.

As Thorbjorn Jagland, the former Norwegian prime minister stated in announcing the award: “The stabilizing part played by the E.U. has helped to transform most of Europe from a continent of war to a continent of peace.”

In my house, where my kids are studying the arguments over ratification of the U.S. Constitution in their government class, I remind them how lucky we are to have decided more than 200 years ago to adopt a strong federal government. The Europeans, by contrast, are still having that debate today. And to a lesser extent, we are still having it too, though it is interesting to note that American political parties have switched sides, with Jefferson's party (which started out as anti-federalists) now generally advocating a powerful federal government, and Lincoln's party (which started out as favoring a strong union) now more in favor of giving greater power to the states. (I wonder how surprised Lincoln and Jefferson would be to see that reversal.)

With the glaring exception of the Civil War, caused by failing to resolve the issue of slavery in our Constitution, our federal system has generally kept peace among the states for over 200 years. We can only hope for the continued success of the European Union in keeping the peace on that continent as well.