Sunday, March 24, 2013


We tell stories to make sense of experience. We need to organize the chaos of events in the form of stories, containing a beginning, a middle and and end. By doing that, events acquire meaning.

We tell stories to define who we are. Tomorrow night my family will gather to re-tell the Passover story, a defining story of the Jewish people, as it charts a journey from slavery to the promised land. Every culture defines itself by telling their own stories.

We also tell stories as a means of resolving conflict. One thing that trial has in common with mediation is that both forms of dispute resolution provide an opportunity for the parties to the conflict to tell their stories. In a trial, two conflicting accounts of the relevant events are laid side by side so that a neutral fact finder can try to decide what really happened, and which side should prevail. In mediation, parties have the chance to tell their stories to each other, and are allowed greater scope to describe how the conflict has affected them, all in an effort to promote reconciliation or compromise.

On Friday, I had a chance to hear Professor Lela Love at an SCMA program, talking about her recent book Stories Mediators Tell, which attempts to convey how the mediation process works by means of a series of stories. This seems a very effective way to explain what happens in mediation that can allow parties to let go of conflict: whether that comes from understanding the other side's point of view; recognizing the other side's humanity; discovering common interests; or finding acceptable middle ground. The stories in the book run the gamut from heartbreak to humor to common sense resolutions of practical problems.

Mediators themselves seem to enjoy and learn something from telling stories, as we discovered when members of the audience were invited to share our own experiences that to each of us seemed to capture the essence of the mediation process. When trial lawyers get together, they like to tell war stories. I guess you could call the stories this group of mediators told on Friday "peace stories." Thanks to Professor Love, the other participants in our discussion, and the indispensable Robyn Weinstein for organizing the program.

Saturday, March 23, 2013

The power of an apology

Critics who accused President Obama of leading an "apology tour" during his early foreign trips might claim some vindication from this week's presidential visit to Israel, which culminated in a spectacular apology that took place in a trailer at the airport as the president was about to depart for Jordan. But it wasn't President Obama who was apologizing. The president instead acted as a mediator in brokering a restoration of diplomatic relations between Israel and Turkey. In order for that to occur, it was necessary for Israel to apologize to Turkey for mistakes that occurred during the 2010 Israeli raid on a Turkish ship trying to run the blockade of Gaza. Clearly, both Israel and Turkey will greatly benefit from the restoration of normal relations. Improved relations will bolster the security of both countries in the face of violence in Syria and elsewhere. Israel also gains some international respect, as Turkey has already tempered some harsh criticism of Zionism, which may have laid the groundwork for this week's action. But some  Israeli hard-liners are already criticizing the apology. Are there any costs to Netanyahu and Israel in expressing regret and sorrow for the Israeli military action in 2010?

Those who resist making apologies rely on a couple of arguments. One is that the party being asked to apologize has nothing to apologize for. This view is often expressed by American conservatives, who seem to argue for a doctrine of American infallibility. Thus, no matter how much other countries might perceive us as a bully, no matter if we sometimes make strategic military mistakes, we should never apologize because we are always in the right and always a force for good in the world. That is an argument based on pure arrogance. Countries that do not acknowledge their mistakes only lend further support to negative perceptions. Israeli hard liners can argue that their country had every right to enforce a naval blockade, an action that every sovereign nation has the right to engage in when permitted under international law. But these same defenders of Israeli prerogatives should also take enough pride in the Israeli military to be able to claim that Israel tries to use force sparingly and to minimize unnecessary casualties. And no matter how precise and well-planned a military operation may be, it probably could have been even more well-planned and precise. That means there is almost always something to apologize for.

Another argument is that apologies make nations appear weak. That means that even if leaders recognize that they made some mistakes, they should still never acknowledge those mistakes, because that will cost them respect. Those who make this argument should have the burden of proving it. They must demonstrate that if Israel covers up or refuses to acknowledge any operational errors in its military missions, that will cause the country's enemies to respect it more. Even if they could make that case, which seems doubtful, it would be an odd position to take for a country that prides itself on democratic institutions, an independent judicial system, and the freedom of Israeli citizens to criticize their own government. That means that no matter how much leaders may wish to refuse to acknowledge their mistakes, other institutions are going to ferret them out anyway.

In private disputes, parties often resist apologizing for similar reasons. They are reluctant to admit they did anything wrong, and they are afraid of some potential adverse consequences in admitting fault. But so long as an apology is crafted in a way that it cannot be used in court as an admission of liability--which is usually the case if an apology instead becomes a tool to obtain a legally binding settlement which implies a discharge of liability--the costs of apologizing usually pale in comparison to the gains that can come from resolving the dispute.

The arguments against making apologies thus seem remarkably weak. They are mostly based on pride and a miscalculation of the party's real interests. When weighed against the remarkable gains that can come from openly acknowledging a mistake to a party that feels wronged by one's actions, the costs of apologizing seem trivial in comparison. Prime Minister Netanyahu acted wisely in recognizing that the benefits of restoring good relations with Turkey far outweighed any risks in making an apology for Israel's attack on a Turkish ship.

Thursday, March 14, 2013


Empathy is an essential tool in mediation, both for the mediator and hopefully a quality the participants develop as well. Mediators recognize, unless we want to act purely as evaluators (and even then the capacity for empathy is still important), that we need to try to empathize with the needs and feelings of both sides in every case, to build trust and encourage understanding.  But sometimes the actions of parties to a dispute seem so foreign or even repugnant to our own values that we find it difficult to empathize. And when we can't empathize, we tend to distance ourselves and condemn. Are there limits to the capacity to empathize? Are there actions so beyond the pale of acceptable human behavior that it would be almost immoral to empathize? According to a remarkable documentary I saw this past weekend, the answer to those questions would appear to be "no."

The Act of Killing takes as its subject the gangsters and paramilitary organizations used by the Indonesian government to kill perhaps a million supposed opponents of the regime after the country's military coup in 1965. There has been some democratization in Indonesia since that time, but the people who carried out these actions are still protected by the government, and can brag about these actions with impunity. The government's continued protection of these killers makes it difficult to achieve the kind of reconciliation that can sometimes be obtained by war crimes tribunals or memorials or compensation to victims. Because the government still supports the bad guys, the families of the victims of the purge still live in fear. So much fear that the filmmakers discovered they could not use the victims' families in their film at all. Therefore they made the decision to make a different kind of film, told from the point of view of the killers. They were somewhat surprised to find that these gangsters and leaders of paramilitary organizations involved in the 1965 killings were quite willing to cooperate.

One thing that makes the documentary unique is that its "stars," in addition to talking about their actions, were asked to re-enact them for the camera, as if they were making a movie depicting their methods of killing and torture. There was no trickery involved. No hidden cameras. The actors fully understood that they were being filmed for a documentary in which they were pretending to make a movie showing what they had done more than 40 years ago. They dyed their hair to look younger; they dressed up in gangster clothes; they took the filmmakers to some of the places where they had engaged in torture and killings; they demonstrated how they used wires to slit their victims' throats; they enlisted villagers to demonstrate how they dragged women and children from their homes. Some of these scenes are almost comical; others are harrowing. For the most part, the perpetrators  are not embarrassed to give matter-of-fact descriptions of torture and killing they committed.

What makes the film even more unique is that it does not allow the audience the easy escape of simply condemning the killers as evil. Instead it treats them with genuine empathy. The film's point of view forces us to recognize the essential humanity even of people who carried out despicable and horrible crimes. We need to understand that these crimes were committed by people, not by some sort of demons.

The film focuses in particular on one character, a gangster named Anwar Congo. Like others, Congo at first expresses no remorse for his actions. Since the killings were sanctioned by the government, and no one is being punished for them, he can make the argument that he has done nothing wrong. As the movie goes on, however, it becomes clear that at a deeper level, he realizes that what he has done is wrong. At one point Congo agrees to play a victim of torture being performed by others, and says after doing the scene that he understands how his own victims must have felt. The filmmakers do not let him off that easily, reminding him that he was only pretending to be tortured, while for his victims the torture was real. By the end of the movie, Congo is actually retching, physically sickened by his appreciation of the horror of his own actions.

Taking the point of view of people who committed horrific crimes in no way justifies these actions. Allowing these criminals to tell their own story instead causes at least some of them to condemn themselves, and may help victims' families viewing the film to achieve a degree of peace. We see how important re-enactment, a tool that is used in court proceedings and in mediation, is to achieving resolution of conflict. The film also proves that there are no limits to the type of behavior that can be treated with empathy. And how effective empathy is as a technique to bring about understanding and potentially reconciliation.

Saturday, March 2, 2013

New era

The official word came down yesterday from the LA Superior Court ADR program, in a notice sent to all members of the court's ADR panels. The entire department is shutting down by the end of June. No more cases will be sent to mediation after this week. All current cases are supposed to be set for hearings by May 10, 2013. It is truly the end of an era for court-related ADR in Los Angeles County.

Whatever gripes users and mediators may have had with this program, and I have heard lots of them, the size and scope of this program was still a truly impressive achievement for the court. The ADR department successfully helped resolve thousands of cases every year. Thousands. It is sad to see it simply shutting down, without any adequate plan having been put forward by the court to assist litigants in taking advantage of ADR. Instead, what we are about to see unfold is an experiment to find out to what extent private and non-profit organizations can pick up the slack, and whether litigants and attorneys have learned enough about the benefits of mediation and other forms of dispute resolution that they will seek out alternatives to court on their own.

Maybe the new era is going to be something like the Interstate Highway system. When the federal government set up that program in the 1950's, they had to decide whether to follow the model of some states that had already built limited access turnpikes or parkways, in which the rest stops and gas and food facilities were designed by the state and located in a way that did not require drivers to exit the highway. It cost the state a little more to design highways that way, but they could recoup that cost through concession fees from the operators of those facilities, and they were providing a service to drivers. The advantage was easy, controlled access to a reliable system of regularly-spaced facilities. The disadvantage was that those facilities all suffered from a certain boring uniformity, as they had to conform to the state's rules. Generally, they also offered a limited number of food options.

The designers of the Interstate system chose not to follow that example. The interstates generally have no tolls, but they also have very few facilities. The private market was supposed to spring up and provide convenient food and gas options off the exits of these new highways. And for the most part, the private market did supply the needed facilities, but in a somewhat chaotic and uncoordinated way. As a result, when you travel the interstate highway system, you might find it a little confusing to find the facilities you are looking for. They aren't always well marked, and they sometimes require you to take a little detour to locate a restaurant or gas station. You might face some uncertainty about whether to take the next exit, where you can see a sign for your less favorite fast food restaurant, or take a chance and travel a little further to find something better. Either way, you have to exit the system, go find what you are looking for, and then figure out how to get back on. You also frequently find two gas stations right next door to each other, and sometimes both go out of business due to the competition. But you have a lot of choices, as you are free to hunt among the many brands of gas, food and lodging that are usually located within easy access of the freeway exits.

Like the interstate highway system, the LA Superior Court system is about to ditch the convenience of a one-size-fits-all ADR service. That service gave thousands of litigants easy access to three hours of free mediation services, but if you went that route, you were randomly assigned a mediator, and you had to comply with court deadlines and other rules for using the service. Now everybody has to get off the freeway entirely. There will be a certain amount of chaos and confusion, as parties learn how to navigate the exits and entrances and find the kinds of services they like. And some people will just hold it in until they reach their destination because they find the whole process of locating and choosing a mediator too scary.