Monday, December 30, 2013


One of the more interesting assignments I had this year required me to mediate a dispute between two mediators. In preparing for this mediation, I wondered whether my usual conflict resolution techniques would work. These two experts were already wise to all of the usual mediators' tricks. What could I possibly suggest that they had not thought of already?

During the course of a couple of conference calls it took to resolve the problem, these two mediators showed that they were way ahead of me with respect to understanding the stages of the mediation process and the techniques we were using to reach a resolution. At one point for example, one of the participants asked me if it was premature to be brainstorming solutions to the problem, before we had fully explored the sources of the conflict.

But even though the participants were well versed in the mediation process, they still acted in many ways no differently from the typical participants in mediation who have little experience with how the process works. Each had legitimate grievances against the other. Each had emotional responses to the other's proposals. And each had difficulty imagining constructive solutions because they were trapped in conflict.

It was gratifying, and also somewhat amusing to me, to find that some tried and true mediation techniques still worked, even though the participants were fully familiar with those techniques. It was also instructive to see that even experts in mediated conflict resolution are not immune from conflict themselves, and were wise enough to recognize that, just as doctors sometimes need their own doctor, they needed their own neutral to resolve their problem. The experience reminded me of growing up with parents from the mental health field (my father a psychiatrist and my mother a social worker). Even though my parents were experts in family therapy, they found themselves facing the same difficulties as any other parents, and from my perspective, repeatedly demonstrated that they did not understand me at all!

As mediation has become a more prevalent form of conflict resolution, mediators are finding the participants--especially attorneys who have attended lots of mediations, or who have taken mediation training themselves--more and more familiar with the stages and techniques of the mediation process. This familiarity should not make these techniques less effective, however. Instead a deeper knowledge of the process saves some time, because the mediator does not have to explain as much to the participants. But the work of resolving the conflict remains essentially the same regardless of how well the participants understand the process.

Saturday, December 14, 2013

Managing unresolveable conflicts

This week, by passing a new budget agreement through the House (still waiting on the Senate), Congress finally seems to be learning how to get back to business. To do that requires managing truly unresolveable conflicts, instead of allowing those conflicts to gum up the works completely.

Positions on both sides have hardened to the point where Republicans will not accept even a penny of tax increases, and Democrats will not accept cuts to entitlement programs. That means the usual split-the-difference approaches no longer work. Meanwhile discretionary spending has already been cut more than both sides feel comfortable with. Support for restoring defense cuts in particular cuts across party lines. So how do you craft a budget agreement in this environment?

First you choose representatives who command trust from each side. In any negotiation it is vital that the parties' agents have full authority and the support of their principals. Conservative Paul Ryan and Liberal Patty Murray fit the bill perfectly. Next you send the two negotiators into a room together and make sure they understand they have to emerge with an agreement. (The reason everybody finally understands the need to make an agreement is that we have just seen what happens when the parties fail to reach an agreement before the deadline, which is that the government shuts down, and everybody suffers.) 

The negotiators also had to understand the need to respect the other side's most important interests. That meant conceding to the Republicans that taxes would not be raised, and conceding to the Democrats that entitlement spending would not be cut. (Instead it's federal employees' pensions that will be taking a hit.) Within that framework, the parties found room to restore some discretionary spending that both sides wanted, and also include spending cuts and revenue increases that won't take effect for some time, thus allowing both sides to say they achieved some important interim goals, and that the short term deal is better than no deal. 

Is there a lot of unhappiness with this agreement? Of course. The hard-line conservatives are bemoaning the spending increases, and complaining that the deal does not do enough to reduce government in the long term. Liberals remain frustrated with the spending levels to which the government has become constrained.

Many mediators would say that the test of a good settlement is that it leaves both sides feeling equally dissatisfied. I never like to tell parties in conflict that they should be unhappy with a negotiated outcome. If they achieved something better than the alternative that would come with the failure to reach agreement, they should view the agreement as a positive. (By alternative, I do not mean the best possible alternative outcome for each side, i.e., victory for their side, and surrender by the other side. I mean the most likely outcome, which in this case is continued conflict and paralysis.)

Still, one wishes that more could have been achieved by this negotiation process. Not more in the sense that either side could have obtained a larger share of its policy objectives at the expense of the other, but more in the sense that the parties failed to reach a more comprehensive agreement. In the past Democrats have sometimes recognized that reforms to entitlement programs might be necessary to keep those programs on a sound footing. Republicans have sometimes recognized that tax increases might be necessary to close budget gaps. A truly transformational agreement would have required both sides to cross lines that they are currently unwilling to cross, because they have defined those lines as matters of principle. To do that would require both sides to recognize more legitimacy to the others' point of view than they are currently willing to entertain. As a result, a more comprehensive, transformative agreement remains, at least for the time being, out of reach. 

Friday, December 6, 2013


During the 1980's, when South Africa was in the news all the time, when the divestment movement was in full swing on college campuses and countries around the world were imposing sanctions, when South Africa was being ripped apart by repression and terrible violence, I remember thinking that South Africa served in some ways as a microcosm of the whole world. In that country a small minority of European ancestry was imposing its will on the majority African population, consuming most of the wealth for itself, and adhering to the fiction that the majority population could be confined to a few artificial "homelands." It was an unsustainable system, but the leaders of South Africa seemed unwilling to yield.

I remember doubting during those times that South Africa would be able to resolve its terrible conflicts without prolonged and brutal civil war, which seemed almost inevitable, and that this country's likely fate did not portend well for the rest of the world's ability to resolve similar problems of discrimination, oppression and injustice.  On the other hand, if South Africa could somehow end the system of apartheid peacefully, maybe there was hope for the rest of us.

The fact that South Africa did manage to emerge from those dark days to find a more just system, and that it did not fall into civil war, was in large part due to the example of one man, Nelson Mandela. During the 1980's, Mandela was repeatedly offered release from prison, if he would agree to renounce violence, but he refused to accept his release on the government's terms. What Mandela did do, however, while still in prison, and in contrast to other political prisoners at the time, was to agree to enter into negotiations with the government. It took considerable courage to negotiate rather than continue to fight.

Gradually, Mandela was offered better conditions, and was treated with more dignity and respect, until he finally won release on his terms. After that it took years of additional negotiations before South Africa finally adopted a new constitutional system allowing for majority rule. Mandela showed the necessary patience and perseverance to see these negotiations through. And what was probably most remarkable, he treated his former captors magnanimously, and refused to give in to hate. In saving South Africa, he also gave hope to the rest of the world.