Sunday, April 21, 2013


I heard a great story tonight from a college professor. Near the beginning of this professor's course on political philosophy, a student proclaimed that there was no such thing as justice. "I've read Nietzsche," the student said, "and so I know that there is only power. Justice does not exist."

The professor asked the student to give the course a little more time to test his assumptions. "But I'm warning you," the professor advised. "If you still think the way you do by the end of this semester, you are not going to get a very good grade."

"You can't do that," the student said.

"Why not?" asked the professor.

"Because it's not fair!"

The professor told us how pleased he felt that he had achieved that kind of rare teaching moment, the lesson being that even when people doubt that justice exists, our desire for justice remains strong; our appeals to justice are often the strongest arguments at our disposal.

Wednesday, April 17, 2013


This is eight year old Martin Richard, who has achieved immortality as an international symbol of peace. Martin was killed on Monday for being in the wrong place at the wrong time. His mother also suffered a brain injury and his sister lost her leg, when a bomb exploded near to where the family was standing while they were watching the finish of the Boston Marathon.

Friday, April 12, 2013

Budget Negotiations

Sometimes as an attorney representing a party in negotiations you might have an unreasonable client, who refuses to give any ground to the other side on a particular point, somehow failing to understand that it is impossible to make a deal without conceding something to your opponent. Sometimes you have an unreasonable adversary, who seems uninterested in making a deal except on their own terms. And sometimes you have both. That seems to describe the position of President Obama in current budget negotiations.

The president is facing outrage from his fair weather supporters on the left for suggesting that he is open to changing benefit formulas for Social Security as part of a budget deal with Congressional Republicans. The concept of "chained CPI," and other changes to entitlement formulas, is something Republicans have been demanding as part of the budget negotiations for months. Republicans promised that if the president was willing to make some concessions on entitlements, they would show interest in additional revenue increases. So it should be clear from the history of these budget negotiations that chained CPI was not the president's idea. It's probably not his preferred method of fixing Social Security. This administration, which pushed through a Social Security payroll tax holiday for the last couple of years, evidently doesn't even consider it very urgent to shore up Social Security at all right now. But they are willing to consider such a proposal from the other side in the interest of getting a budget deal. Those expressing outrage on the left are somehow failing to grasp this elementary principle of negotiation strategy.

And what about that unreasonable adversary I mentioned at the top? Now that the president has expressed willingness to consider agreeing to something that the other side has been demanding, something they told the president was one of their top priorities, the Republicans have moved the goalposts. Here is John Boehner's response to President Obama's budget proposals: "If the president believes these modest entitlement savings are needed to help shore up these programs, there's no reason they should be held hostage for more tax hikes." This statement might be smart politics, but Boehner knows it is disingenuous in the extreme. The president doesn't believe these savings are needed. That is something Speaker Boehner has been demanding. To suggest otherwise is to use the kind of bad faith negotiating tactic that kills deals.

So now we have the left and right (client and adversary) both attacking the president for advancing a proposal in negotiations over a budget. The left plays into Speaker Boehner's hands by perceiving chained CPI as President Obama's idea. And the right seems ready to play the same trick they played with Medicare in both the 2010 and 2012 election campaigns, trying to blame the Democrats for taking people's benefits away, when that was their demand in the first place.

What will protect the president, and perhaps allow a deal to be made, is the American people (the real client). The president's popularity remains strong, especially compared to the standing of Congress. People generally favor the balanced package of spending cuts and revenue increases the administration is suggesting. A bit of public pressure to stop fooling around might help get a deal done. Once the irrational actors on all sides are done scoring political points and blaming one another for failing to make a deal, one hopes that enough rational actors will be left in the room to identify the common interests that will permit us to move forward.

Sunday, April 7, 2013


There was talk around the ABA Dispute Resolution Conference this week that the demand for mediation services may be declining. If that's true, does that mean that mediation is falling out of favor, just as arbitration has somewhat fallen out of favor? Or is it a reflection of the economy and the decline in demand for dispute resolution services in general? Law firms have dramatically shrunk in recent years as clients are less willing to shell out gigantic sums for litigation. If litigation activity is declining, one would expect that fewer parties would use mediation as a stage in the litigation process.

I think there is a larger trend going on, one that actually points in the opposite direction. I see evidence that the values behind mediation--values such as collaboration, interest analysis, problem-solving, participation, self-determination--are starting to permeate the culture. That was evident from some of the panels I attended this week. For example, one panel discussed processes that local governments are developing that allow greater citizen participation in decision-making.  If all the affected groups participate in designing a project, fewer conflicts should prevent the completion of the project or deal with its impacts. In other words, if the project managers use a mediation-like process in the project development stage, they are less likely to need any kind of dispute resolution process at the end.

Civic collaboration

Another panel talked about how project design and management has changed in the construction industry, by changing contract incentives and using similar conflict-avoidance techniques. As a result, the construction industry is moving away from a culture in which all of the contractors and sub-contractors point fingers at one another when something goes wrong, to one in which all of the participants have the incentive to do what is best to allow the project to move forward.

Lawyers are talking about practicing in a less adversarial manner, introducing mediation into the litigation process, or avoiding litigation altogether. Concepts like collaborative law, integrative law, and planned early negotiations, are starting to seep into the legal profession, moving it away from the traditional adversarial model.

These cultural changes seem particularly pronounced in  the younger generation, which seems steeped in more collaborative values. Technology has also made people recognize the wisdom of crowd-sourcing, and has given everyone the tools to participate in every conversation.

If there is less formal conflict resolution going on, maybe that means that the values behind mediation have already succeeded to some extent in transforming a competitive culture into a more cooperative culture. That is not to say there aren't plenty of old-fashioned nasty and destructive conflicts still going on. Those are not going away completely or any time soon. Adversarial thinking still predominates. But if the values supporting mediation are truly taking hold, such that conflict management and avoidance are built into the system, then mediators might have to rethink the ways in which they practice their trade. Instead of thinking of mediation as an adjunct of or alternative to the court system, people trained in conflict resolution will instead end up employing their skills in a variety of roles in a more collaborative society.

Saturday, April 6, 2013

Peace is boring.

Yesterday at the ABA Dispute Resolution spring conference I heard former Senator George Mitchell talk about his five year effort to mediate a peace agreement in Northern Ireland. When the agreement was finally signed in 1998, Mitchell knew the work of making peace was not over, that implementation of the agreement was going to be even more difficult than the long effort to obtain the agreement, and that it would take some time before violence died down. He told people in Ireland at the time that although he knew they still had a lot of difficult days ahead, he hoped someday to return to Northern Ireland with his son, born only about six months before the Good Friday agreement, and sit in the visitors' gallery of the Northern Ireland Assembly, where there would no longer be talk of violence, and no talk of peace either. Neither would be worth mentioning, as peace would be taken for granted.

BBC photo
Mitchell finally got the chance to take that trip with his son last year. (Some google research disclosed that a documentary about the trip is going to be released this month.) Michell told our audience that after traveling a few days through the Northern Ireland countryside he had grown to love, he took his son to watch the debate in the Northern Ireland Assembly, where they sat and listened for about 45 minutes to a "dry as dust" presentation of a report from the European Parliament in Brussels. Finally, Mitchell's son turned to his father and begged to leave, complaining that the proceedings were really boring. Boring to his son maybe, but to Mitchell the mundane speeches in the Assembly were music to his ears.

Mitchell told us what every mediator already knows, that it takes lots of patience and perseverance to reach a peace agreement. He also emphasized the importance of holding out hope and economic opportunity, otherwise people without those essentials are likely to continue to engage in violence. Since the end result of this process is so boring, however, that probably explains why the peace process does not excite most of us--it explains why they make a lot of war movies, and not very many peace movies. Only dogged peacemakers like Mitchell get excited by the deadly dull reports of an uneventful legislative session in a more peaceful Northern Ireland.

Process and Outcomes

One of the panels I attended at the ABA Section on Dispute Resolution spring conference turned into something of a psychology experiment. The presenters asked the participants to sit around a series of circular tables, and assigned each table a role to play as groups interested in a proposed canal project for a hypothetical harbor. My table was assigned to play several environmental groups opposed to the project for differing reasons, another table represented shipping company owners concerned about the cost, another represented union interests favorable to the project, and another represented government representatives sponsoring the project. We were asked to discuss among ourselves our concerns about the process that was supposed to take into account all of these different views in the design of the proposed project.

What happened was that instead of focusing on how to design and manage the process for addressing all of these competing interests, most of the participants tended to focus on how to achieve their substantive goals. The shipping interests talked about diverting their cargoes to another port; we environmentalists argued among ourselves about our reasons for opposing the project and also threatened a lawsuit to stop it; the government interests figured they had the power to push the project through despite the opposing interests. Even after some prodding by the panelists, we found it difficult to talk about designing a process that would allow all of the competing interests to be heard and perhaps accommodated. Instead we distrusted the process and talked mostly about how to either win or opt out.

In the post mortem, the panelists reminded us that we were a group of dispute resolution professionals. And that this was only a simulation, in which we were arbitrarily assigned various roles, and were only pretending to favor them. Nevertheless, we became heavily invested in our assigned positions, distrustful of other parties, and distrustful of the process itself.

I often find that parties entering mediation show little interest in discussing procedural issues, with the exception that they frequently express a desire to retreat to a separate room and have no interaction whatsoever with the opposing side. Even when parties are willing to be guided by the mediator as to how to structure the process, they are a lot less interested in the process than in the result they are trying to achieve. And they are often eager to walk out if it does not appear to be heading toward the result they favor. The exercise I participated in shows how much resistance has to be overcome to induce parties even to discuss and participate in a process that tries to allow every voice to be heard and every legitimate interest to be accommodated.

It's somewhat disconcerting to realize that even conflict resolution experts need to be reminded to focus on the process before worrying about the result. But when we are asked to take the point of view of parties, it's only natural to be concerned about your client's goals more than how you arrive at those goals. Still, parties understand that process is important. I was reminded at another panel that research demonstrates that when people feel they have had a chance to tell their stories, and even more importantly, when they feel they have been heard; when participants are treated with respect; and when they have confidence in the neutral, they are more likely to be satisfied with the result, even it does not achieve all their goals. Those should be the values served by any dispute resolution process, including litigation as well as alternatives to litigation.