Wednesday, October 30, 2013

Seeds of Peace

At this year's fall conference on Saturday November 2, 2013, the Southern California Mediation Association will be presenting the Cloke-Millen Peacemaker of the Year award to Seeds of Peace, an organization that since 1993, has brought young people  from regions of conflict around the world to meet their historic enemies face-to-face at their International Camp in Maine. Seeds of Peace operates on the theory that while treaties are negotiated by governments, peace is made by people.

The Cloke-Millen Peacemaker Award will be accepted by Sarah Brajtbort, US-based Programs Manager for Seeds of Peace. Sarah was a Seed herself in 2006, and returned as a counselor 4 years later, which she did for two summers. She was hired full-time in 2012 as the US based program manager, and has been instrumental in expanding the reach of the organization from simply bringing young people from trouble spots around the world together to get to know one another on a personal basis, to extensive follow-up efforts building on the camp experience.

It's about forging personal relationships, but it's also about using techniques similar to those used in mediation to facilitate dialogue among groups of people who are not used to listening to one another.

I've been impressed with the people I've talked to from this organization, and am looking forward to meeting Sarah this weekend. It's not too late to register.

Sunday, October 27, 2013

Confirmation bias

Reading through some of the twitter comments that started popping up immediately after last night's unusual World Series game, it wasn't difficult to figure out which were written by Red Sox fans, and which by Cardinals fans. (For those who missed it, the Cardinals won in the bottom of the ninth when runner Allen Craig was called safe at home, even though he was clearly tagged out, because Craig had tripped over the legs of the Red Sox third baseman after rounding third base.) Obstruction is an obscure and complicated rule in the baseball rule book, but it didn't take long before hundreds of "experts" started offering their interpretations.

Everybody was pulling out the same rule book, but partisans on each side were relying on different parts of the rule to make their cases. So Red Sox fans were quick to point out that third baseman Will Middlebrooks, who was lying on the ground after missing the ball, might have been lying sufficiently away from from the base path to allow Craig to go around him. Red Sox fans were also quick to quick to question the viewpoint of umpire Jim Joyce, the same ump who three years ago infamously deprived pitcher Armando Galarraga of a perfect game by a safe call that Joyce later admitted was wrong. Meanwhile Cardinals fans pointed to the flailing legs of the fallen Red Sox third baseman, and relied on the rule's provision that obstruction need not be intentional to be called as such.

It was a good reminder that nearly everyone is biased to some extent, and that nearly all of us use our powers of rational thinking, not so much to arrive dispassionately at the correct result, but instead to justify the result we already favor. The controversy reminded me of the disputed 2000 Bush/Gore election, when people who previously had never concerned themselves with such abstruse questions as whether a punch card with a hanging chad should or should not count as a valid ballot, suddenly became vehement advocates of one side or the other of that question, depending on which candidate they supported.

While we all like to think we arrive at our conclusions through a rational process, at some level we must recognize that we don't do that very well at all. That's why we strive for strict neutrality from umpires or judges or arbitrators. Parties expect mediators to be neutral also, but since mediators aren't supposed to decide the case for the parties, their biases do not impact the result in the same way. What mediators can do, which judges and umpires do not, is expressly consider what the parties really care about. That is, they can push the discussion beyond the legal and factual issues that seem to be driving the case, understanding that the parties are only arguing about those issues because of the results they are each trying to obtain. What the parties care about, just like what baseball fans care about, is which side is going to win. They care about that more for emotional than rational reasons.

I'm not advocating that we mediate the calls in sports games. That seems unworkable. Instead I'm suggesting that we recognize that a lot of the supposedly rational arguments on both sides of most disputes are really the products of post hoc thinking. The beauty of mediation lies in our ability to delve into the passions that are motivating people's conclusions, rather than just skimming the surface by concentrating solely on issues that people only care about because of how those issues affect the outcome.

(Photo: Eileen Blass, USA TODAY)

Wednesday, October 23, 2013

Mediation advocacy

Organizations offering basic mediation training courses are probably turning out more graduates than can reasonably expect to earn a living as mediators. But those courses are beneficial in other ways than simply conveying the skills necessary to serve as a mediator, whether paid or volunteer. They are also helping advocates understand how the mediation process works, which should help those advocates better represent clients in mediation. I have heard a number of litigators say they were glad they took a mediation training course because it helped them learn how to negotiate better, and to better appreciate how mediation works. Since a lot more cases end up getting resolved by mediation than trial, no litigator can deny the importance of learning how to effectively represent clients in mediation and other forms of negotiated resolutions.

But if one of the purposes of mediation training is to help advocates better represent clients in negotiated resolution of their cases, why not just introduce more courses dedicated specifically to that purpose? There are lots of programs teaching trial advocacy and appellate advocacy and even discovery advocacy. Why not programs teaching advocates how to make the best use of the process that is increasingly taking over the resolution of litigated disputes?  SCMA is helping to fill that void by introducing an advocacy track at this year's fall conference (November 2 at Pepperdine University Law School). The program is being led by Hal Abramson, who wrote a textbook on representation in mediation, and Jeff Kichaven, an experienced mediator here in Southern California.

If trial lawyers think that all they need to do to prepare for mediation is cut a few paragraphs out of their summary judgment brief, and change the caption to “mediation brief;” if they believe that when they  arrive at the mediation, they should just practice their closing argument on the mediator, block their client from participating, and refuse to make any concessions to the other side; they are probably not getting the full benefits of the process. To make mediations most effective, litigators might need to think about doing the opposite of what they are accustomed to doing. That might include listening to what the other side has to say, acknowledging weaknesses in their own positions; sharing information freely and voluntarily; and cooperating with the other side to craft a solution to the conflict. None of these skills come naturally to trial attorneys!

The SCMA program intends to demonstrate to advocates how the pieces of the mediation fit together in a way that will make pre-mediation exchanges of information, opening sessions and caucuses more constructive.  The panelists will also address preparation for mediation, and closing the gap in the last stages of negotiations.The goal of mediation is not simply to settle the case, but also to strengthen the attorney-client relationship, to the benefit of both attorney and client. That's what mediators call a win-win outcome. Advocates, come on up to Malibu November 2 to learn how to achieve those goals.

Tuesday, October 22, 2013

Peer mediation

Last week SCMA put on a program organized by Jason Harper, about peer mediation programs in high schools. The stars of the program were undoubtedly the three high school students trained as mediators at University High School, who described how they spend every sixth period preventing fights and dealing with a whole range of other conflicts that break out among high school students. The adult mediators in the audience were struck by the maturity and poise of these students, and their obvious mastery of the fundamentals of the mediation process.

This program has become so entrenched in this particular school that students often try mediation before calling each other out into the schoolyard for a fight. But peer mediation can do more than reduce violence, reduce absenteeism, and lessen the need for suspensions and other more traditional forms of discipline. This system can also reach and deal with underlying causes of conflict that disciplinary programs often leave untouched.

Perhaps most importantly, peer mediation gets students thinking about conflict in a way that can usher in fundamental reforms in our whole system of justice. Peer mediation programs allow the next generation to explore more effective ways of dealing with violence, theft, slander, and other forms of inter-personal conflict than the authoritarian systems we have traditionally relied upon. Thus, the spread of peer mediation programs has potentially revolutionary potential. To achieve that potential, we don't need to eliminate established disciplinary systems in the schools, or by extension, the criminal justice system in the world these students will graduate into. We merely have to offer an alternative. 

Thursday, October 17, 2013


Should we be celebrating the fact that Congress finally voted yesterday to allow the federal government to re-open and pay its bills?  The bi-partisan agreement to re-open the government merely preserves the status quo for a short period, and leaves open the possibility of another round of brinksmanship very soon. And look what it took to achieve even that! Endless hours of meetings, sending home hundreds of thousands of federal employees,  protests, and warnings from business and political leaders around the world of the dire consequences of inaction. None of that gives much reason to celebrate.

Nevertheless, as a mediator I can find something positive about this result, and when I tweeted a message to that effect, another mediator correctly identified the process we were both cheering as incrementalism. The theory of incrementalism holds that getting parties to agree on the small and simple issues helps create movement toward larger agreements. Psychologically, the process works by building trust between warring parties, and also by conditioning parties to enjoy the rewards of small agreements so as to increase their desire to continue to work on more difficult issues. So if Democrats and Republicans in Congress both derive some satisfaction and other benefits from making this small agreement, they might have an easier time making a more lasting agreement in December. That's a pretty big "if" in this case, but that's the theory anyway.

Logically incrementalism also works by cutting the legs off of arguments that parties might make to justify continued fighting. If Republicans in this case have been forced to admit that the federal government performs some useful functions and that it would be disastrous to allow a default, that might take some steam out of arguments by the more belligerent members of that caucus that government is always the enemy, or that refusing to raise the debt ceiling is a legitimate tactic. If Democrats have been forced to live a little longer with reduced levels of government funding, that may make it harder for them to raise spending levels in the future.

In other words, it seems there is both a positive and a negative way that parties in conflict can work toward agreement in incremental steps. The positive aspect lies in the good feelings aroused among the participants from achieving even small agreements. The negative part allows each side to use concessions by the other side to foreclose them from continuing the conflict.

Wednesday, October 9, 2013

The conflict trap

The quote of the week might be from Republican Congressman Marlin Stutzman of Indiana who summed up his side's dilemma last Tuesday as follows: "We're not going to be disrespected. We have to get something out of this. And I don't know what that even is." How many mediators have heard parties make similar statements? I'm guessing most have.

The inability of Democrats and Republicans in Congress to reach an agreement that will allow the government to continue to operate and pay its bills, something both sides presumably want, serves as a good illustration of how conflict itself can paralyze the parties trapped in it, and can prevent parties even from accomplishing things they might be able to agree on. We could analyze this conflict in terms of the respective demands of each side. We could try to figure out who is to blame for the situation. But none of that analysis would truly capture the dynamic the way one Congressman's offhand remark has captured it.

It's a mistake to try to resolve conflict by focusing solely on what the conflict is ostensibly about. In legal disputes, that means mediators sometimes need to pay less attention to the legal and factual issues that might play an important role in resolving the case in court, and more attention to the interpersonal dynamics that are often driving the dispute. In the political dispute that is consuming the nation right now, that means we probably should pay less attention to the parties' respective positions on deficit reduction, changes to Obamacare, taxes, spending levels, etc., and more attention to the way the political process itself is working (i.e., not working) to frustrate and enrage participants on both sides.

One can mediate disputes by simply asking the parties to state their respective positions, and then trying to coax both sides to make concessions that will get them closer to agreement. But that is not the most effective or satisfying way to mediate disputes. A more effective way is suggested by Stutzman's offhand comment. Rather than ridiculing such a comment, let's see whether it suggests a better approach to resolving the conflict.

First, the Congressman is demanding respect: "We're not going to be disrespected."  What is the Congressman asking for? Simple: Pay attention to us. Listen to our concerns. Grant that we have a legitimate point of view. Include us in the process. One key to successful mediation is to recognize participants' deep-seated needs to express themselves, and to be heard and acknowledged and understood. Often, the other side is more reluctant to grant that kind of validation to the other side than to satisfy the other side's substantive demands. I've seen parties in mediations refuse even to listen to the other side, but then agree to meet their settlement demands anyway. They have thereby decided that it costs them more somehow to acknowledge the validity of what the other side is saying, even if they don't have to agree with it, than it costs them to pay the other side to go away. But if they listened more, they might have made a more favorable deal.

Second, he is expecting a tangible reward. "We have to get something out of this." Republicans pinned their hopes on obtaining substantive concessions on the healthcare law or the budget by making their demands at the point they perceived they had maximum leverage. But they have no clear exit strategy in response to Democrats' refusal to negotiate while a gun is being held to the American peoples' heads. What both sides need now is a face-saving way out. They need to be able to tell their constituents that they achieved some kind of result out of this struggle, and that it was all worthwhile for some reason. In recent days, the conflict has focused less on the issues that originally drove it than on process demands. Republicans seem ready to settle for an agreement by Democrats simply to negotiate, and the dispute right now seems to be about whether the negotiations will take place before or after the government gets up and running again. However the conflict is resolved, both sides are going to want to tell their constituents that they did not back down, but the other side did back down. In other words, what is at stake here is the ability of both sides to say that they achieved something important, that they held on to their principles, and that the other side gave up something of value.

Third, this statement reveals a confusion about goals. "I don't know what that even is." It's a good idea to enter negotiations with a strategy and a realistic appreciation of what can be achieved through negotiation. But the conflict itself inflames passions and clouds reason. Parties trapped in conflict are literally incapable of using the portion of their brains that engages in logical and rational thought. They have been taken over by more primitive instincts like their fears and their allegiances. Until those driving forces are acknowledged, they cannot move on to consider rationally any of the solutions that might achieve some of their goals.

So instead of ridiculing Congressman Stutzman's statement, it might make sense for Democrats in some fashion to address all of the needs and concerns that such a statement reveals. Democrats can do that without without conceding a single substantive point. They can do it without giving up their refusal to negotiate. What they would have to do, however, is agree to treat the other side with some respect, to acknowledge how strongly they feel, to listen to their concerns, and to suggest that some tangible rewards might come out of a process of continuing dialogue. That is the way out of conflict.

Friday, October 4, 2013

When not to negotiate

Mediators tend to believe practically every conflict can be resolved through negotiation, and that settlement is almost always better than the alternatives of continued conflict or an adversarial form of conflict resolution like trial. Mediators like to quote Abraham Lincoln's admonition to discourage litigation and persuade neighbors to compromise, because lawyers do the most good as peacemakers. But Lincoln went on as president to wage war as fiercely as the country had ever seen. Did he forget his own advice to try to reach a negotiated resolution of conflict? Or was he compelled by circumstances to fight, offering the other side only the option of surrender?

My prior post about hostage-taking brings to mind situations where it is impossible, or inadvisable, to negotiate with the terrorists on the other side of a conflict. Currently we are in day 4 of a federal government shutdown. President Obama, famous for always being willing to compromise to make a deal, is this time refusing to offer any deal at all to end the shutdown. The administration is leaving the House Republicans with no alternatives but capitulation or extending the current crisis. I'm not going to opine as to whether the White House strategy is right or wrong, but the current stalemate does raise the question whether some guidelines can be developed for helping parties decide when it might be appropriate to refuse to negotiate.

Here are some situations that might call for walking out of negotiations:

1. When the other side's demands are unreasonable. Tea Party Republicans probably understood that the Obama administration was never going to negotiate their demand to de-fund its signature legislative accomplishment, the Affordable Care Act. They were merely making a last ditch, desperate stand against the measure taking effect. In the absence of the popular uprising they were hoping to start, they are never going to be able to achieve their objective. Similarly, when a party in a business deal or a lawsuit makes a demand that they should know the other side is never going to agree to, and can only be achieved, if at all, through a miraculous court ruling or similar event, there is nothing to negotiate. For negotiations to proceed, parties have to communicate in some fashion that they are only setting forth an opening demand that they are willing to modify, or that they are not serious about their position.

2.  When the other side's methods are intolerable. The Obama administration has been trying to communicate the message that it's not ok to mess with the full faith and credit of the United States of America. When the president in 2011 negotiated a budget deal under the opposition's threat of refusing to raise the debt ceiling, the Treasury got so close to default that the whole nation's credit rating was downgraded. This time, President Obama has announced loudly and repeatedly that there will be no negotiations over raising the debt ceiling. It is just something that Congress must do whenever it has authorized spending levels that require additional borrowing. Similarly, when adversaries demand ransom for hostage-taking, or threaten acts of terrorism if their demands are not met, it seems legitimate to refuse to negotiate. Sometimes companies will continue to defend a case even where continued litigation will cost more than meeting the demand. They do that to discourage new potential claims. Parties who refuse to give in to tactics that they perceive as illegitimate are taking the risk that the other side will carry out their dangerous threats, but refusing to negotiate might sometimes be the only way to communicate to the other side that their tactics are unacceptable.

3.  When there is a matter of principle at stake. This might be the most dangerous situation, and a recipe for perpetual conflict, because everyone has the right to define their own principles, and one side's cherished principles sometimes conflict with the non-negotiable demands of the other side. Both sides in the budget wars have invoked their principles, and that is one reason the conflict is so intractable. Parties in lawsuits will also sometimes say they cannot settle as a matter of principle, and then it is necessary to explore whether there is a way of resolving the dispute while keeping their principles intact, or whether there are higher values at stake that allow the compromise of certain principles.

Understand that these are not rules for when parties SHOULD refuse to negotiate. Parties will sometimes continue to negotiate in all of these situations. I am only trying to identify situations in which it might be understandable for parties to refuse to negotiate. Not all wars can be avoided, and not all lawsuits should be settled. Just the vast majority of them. But when the conflict cannot be resolved by negotiation, the reasons above are usually in play.

Tuesday, October 1, 2013

The hostage-taker's dilemma

Last night I had a chance to see an early screening of the new movie, Captain Phillips, based on the true and well-known story of the ship captain freed by Navy Seals after being taken hostage by Somali pirates. While the manner in which the captain was freed has to be somewhat disappointing to mediators, the movie still provides a good illustration of the problem faced by hostage-takers who fail to get their prisoner to a safe location. If they give up the hostage, they risk being killed. If they kill the hostage, they will almost certainly be killed or captured. And if they try to bargain for the hostage's release, they still face the difficulty of making a clean escape. At some point in this story, the hostage takers begin to realize that they have only created a trap for themselves. That's when they can become most dangerous.

Also last night the deadline ran out for House Republicans to bring to the floor a bill that would continue to fund the federal government. Instead, they continued to insist on adding new conditions to achieve objectives they cannot achieve legislatively (because they will be blocked by the Senate and the President). Their chief objective: the delay or dismantling of Obamacare. House Republicans have failed to keep their hostage safe in these negotiations. They may be able (at least temporarily) to demonstrate their power by shutting down the government, but one thing they cannot do by these tactics is delay Obamacare, which is taking effect on October 1 even while the rest of the government is shut down. Republicans are thus shooting their own hostage without being able to achieve their principal objective, a strategy that seems about as defective as that employed by the failed group of Somali pirates in the movie.

Hostages can be taken in all kinds of conflict situations. If not an actual hostage, there might be a threat to blow up the process if one side doesn't get their way: Pay the ransom, or we'll shoot the hostage. Give up the health care law, or we'll shut down the government. Meet our settlement demands, or we'll take the case to trial. The trick is to avoid pulling the trigger, especially where pulling the trigger is probably going to defeat your objective.