Thursday, July 24, 2014


In the first episode of the second season of Orange is the New Black, the series presents a variation on the prisoner's dilemma problem that is often discussed in mediation programs and texts. Piper and her former girlfriend Alex both have to testify against the drug kingpin they used to work for. Alex persuades Piper to lie and say she had no contact with the guy, otherwise he might take reprisals against them both. After giving her testimony, Piper finds out that Alex in fact told the truth at the trial, leaving Piper exposed to a possible perjury prosecution and an increase in her sentence.

In the prisoner's dilemma scenario, an opportunity to communicate as well as familiarity with the other player's past moves is supposed to allow each player to learn whether or not they can trust the other, and if trust is established, to encourage greater cooperation and mutually beneficial decisions. In the show, the two players did have an opportunity to communicate and also had a long history together.  That is what leads Piper to trust what Alex was telling her and follow her advice. What she failed to consider, however, was that this long history should not have led to greater trust but instead to greater suspicion. In season 1 we found out that Alex had already played the defector card once, by betraying Piper and landing her in prison in the first place. In that situation, the parties' history and knowledge of each other's actions should have led Piper not to trust Alex again.

Piper seems to have such a strong need for love and acceptance that she trusts Alex even when she should not. I have seen it happen occasionally in mediation that a party develops (or previously had) warm enough feelings for the other side, that they make deals that they might later regret. Communication and trust are wonderful things , but nobody wants to be played for a sucker either. Sometimes it's a good idea to stay on your guard even while the other side is trying to play on your warm and fuzzy feelings. The way to test a deal is to consider not only whether the deal will work if the other side lives up to it, but also whether the deal makes sense even if the other side defaults.

That's a reminder that it is the lawyer's job to provide that kind of dispassionate advice. Piper's real mistake in this episode was failing to follow her lawyer's good advice, and instead listening to her untrustworthy friend.  

Saturday, July 19, 2014

War and peace

Conflicts that have recently erupted into violence in Gaza and in Ukraine raise the question of how to end the killing and lead the parties back to a less destructive process. President Obama yesterday, in his press conference following the tragic downing of a Malaysia Airlines passenger jet over the Ukraine, attempted to respond forcefully without further inflaming the situation. The president was careful not to jump to any more conclusions than are warranted by what we know so far. He was firm in condemning the responsible parties, yet careful to emphasize the goal of de-escalating tensions and violence so as to prevent further loss of life.

In short, it was just the sort of speech that was bound to infuriate hawks such as Senator McCain who called the president's response to the fighting in the Ukraine "cowardly." At the same time, it wasn't the kind of speech likely to inspire the president's supporters either. What would probably stir people more might be a Rooseveltian ("day that will live in infamy") or Churchillian ("fight on the beaches") type of response to the outrageous act of violence that appears to have been committed by Ukrainian separatists with the help of their Russian patrons.

But remember that both Roosevelt and Churchill made their stirring remarks in an effort to whip up national resolve to fight and defeat an enemy that had already brought war to their shores. Our side needed to be mobilized for all-out war. President Obama's much harder challenge is to stir up the desire for peace, not only to avoid a military confrontation with Russia, which no responsible person wants, but also to reduce tensions in the Ukraine. He faces a similar task dealing with the situation in Gaza.

Even though the United States supports the Ukrainian government in its struggle against the separatists, and supports Israel in its struggle with Hamas, the president was attempting to play the role of mediator. To do that you have to emphasize the goals of fairness and impartiality. You have to be careful not to exaggerate threats or to accuse the enemy of anything more than you can prove. You have to give your adversary a face-saving way out of a dangerous situation.

Laying out a path to peace in this way is far from easy. It's certainly not cowardly. The challenge for the president, as for any would-be mediator, is to persuade the parties that they can accomplish their goals more readily by peaceful means, and that further retaliation will only make the situation worse. Perhaps to make peace, we have to talk less about the grand designs and historical claims of the respective parties, and turn the talk toward such mundane topics as implementing a ceasefire, conducting an independent factual investigation of plane wreckage, restricting arms shipments to the combatants, and calculating the damage to lives and property inflicted by the scourge of war. If the parties can focus their effort on cleaning up the mess, maybe they will consider less destructive means of managing these conflicts.

Monday, July 14, 2014

Dawn of the Planet of the Apes

Surprisingly, the second in the new series of Planet of the Apes movies (Dawn of the Planet of the Apes) presents a pretty good illustration of the forces that drive groups into violent conflict, or provide opportunities for diplomacy. As the story begins, we find a rapidly-evolving colony of apes living in the woods, while a group of humans, perhaps all that is left of humanity (most people having been wiped out by a virus and the mass chaos caused by the virus) are struggling to survive in what's left of San Francisco. An exploring party makes contact with the apes, and both sides have to decide whether to go to war against the other, or find a way to co-exist peacefully.

On each side, there is an advocate for peace, and a counter-advocate for war. The apes' leader, Caesar, still has kindly feelings toward humans, and thinks they might be able to establish trust and respect each other's boundaries, while his rival Koba wants to keep humans away or destroy them. The two points of view on the human side are represented by Malcolm, who asks for a chance to negotiate with the apes to allow the human city to re-build, and Dreyfus, who is skeptical of this diplomatic mission, and makes preparations to fight.

What I liked about this set-up is that there is a logic to each of these four points of view. The dreamers on each side who hold out hopes for peace are correct in pointing out the awful toll that war would take. They recognize the risks, but only ask for a chance to test whether a means can be found for both groups to achieve their goals without threatening the other's. On the other hand, those who advocate for war are correct in suggesting that the other side cannot be fully trusted, and that peaceful coexistence might never be possible.

The movie also demonstrates the powerful roles that fear, distrust, selfishness and bias all play in leading both sides toward violent conflict. Peace is difficult to achieve, and fragile to maintain. It requires individuals to get to know and understand individuals on the other side. It requires trust, which can easily be broken. War seems natural for those not ready to shed their prejudices and fears.

An important lesson for conflict resolution is well illustrated in this film. That is that you generally can't use logic and reason to persuade people to avoid taking a confrontational approach. The hawks will not be persuaded by logic, and their arguments are just as strong as those of the doves. Instead you have to appeal to deeper emotional needs, such as self-preservation or brotherhood, in order to avoid destructive conflict.

(For those who prefer historical drama to science fiction, an even better movie with similar themes is Ridley Scott's Kingdom of Heaven, illustrating the forces that drove both sides to war leading up to the siege of Jerusalem in 1187.)

Sunday, July 6, 2014

Joint sessions

I heard about a mediator who started a session by asking all the participants to spend some time talking about their personal histories and interests, presumably in an effort to get the parties to see each other as human beings and establish connections that might help them resolve the dispute. Lo and behold, these parties did resolve the dispute to each side's great satisfaction, but at least one side later reported that they disliked this touchy-feely aspect of that mediation. So even though this technique was proven to work well, it still made one of the parties uncomfortable enough that they would probably prefer a more conventional and perhaps less effective approach.

Mindful of stories like that, I try to make sure parties buy into whatever process we might be following in a mediation before proceeding. So I don't force participants into joint sessions. I also don't require people to share details of their private lives, or sit around the campfire and sing Kumbaya. But I do generally encourage parties and attorneys at least to think about doing a joint session at some point in the process. I also tell them we can retreat to separate rooms if they feel uncomfortable about continuing.

In Southern California, it's often an uphill battle to persuade parties and attorneys even to consider participating in a joint session. For some reason, joint sessions have a bad name here, unlike in a lot of other places where they are apparently still the norm. Maybe that is just the way the practice has evolved. Maybe it is because parties in mediation have somehow gotten the wrong idea about what is supposed to happen in a joint session. Or maybe it's because some of the mediators who still hold joint sessions are doing them wrong.

As an example of the common reluctance to engage in joint sessions, one of the attorneys in a case I mediated recently told me almost as soon as he walked into my office, that he disliked joint sessions and thought a joint session was out of the question in this case. That would exacerbate the conflict further, he told me. It would give each side an opportunity for chest-thumping that would only inflame passions on the other side. The parties were already angry enough with each other, and probably shouldn't be in the same room. This was far from the first time I've heard these perceptions expressed.

I responded that if we did decide to do a joint session, I didn't expect to see any chest-thumping. I had no desire to listen to each side's attorneys give a preview of their opening statement or their closing argument at trial. I don't think that is productive. Instead, what I suggested we might do in a joint session was to exchange information that might be helpful to resolution of the case. Information about the parties' respective future business plans, for example. Information supporting the parties' respective damage claims, to the extent that had not already been exchanged. Exchanging that kind of information directly across the table is often more efficient that requiring the mediator to go back and forth to convey questions and answers. It's also helpful to dispelling some of the suspicions and distrust that builds up between opposing parties in a lawsuit.

A second purpose is to allow the mediation to be conducted in a more transparent manner. Rather than wondering what is happening in the other room, each side can hear directly from the other side what is troubling them, and what is important to them. If mediation works by means of communication and understanding, that process is often facilitated by face-to-face contact. Not always, mind you. Sometimes parties are more receptive to having the mediator convey information indirectly. But you lose a lot of body language and emotional content that way.

Finally, in the ideal situation, a joint session can allow the parties to brainstorm together to design a solution to the conflict, rather than work at cross-purposes and in opposite directions. But it takes some time to break down the barriers of distrust and hostility that prevent parties from working together.

Eventually, the lawyer who adamantly told me at the beginning that he was opposed to joint sessions became so curious about what was going on in the other room, that he finally decided he wanted to go in and meet everyone, and convey to them some of the things that were motivating his client. And he did. And we eventually settled the case. With only a small amount of chest-thumping.