Thursday, September 25, 2014

When to fight

President Obama's speech to the United Nations this week is worth reading to study the evolution of the president's foreign policy views in response to new and continuing conflicts around the world. With respect to such crises as Russian aggression toward Ukraine, preventing a nuclear Iran, and the Israeli-Palestinian conflict, the president reiterated his belief in finding cooperative, negotiated solutions:
This speaks to a central question of our global age: whether we will solve our problems together, in a spirit of mutual interests and mutual respect, or whether we descend into destructive rivalries of the past. When nations find common ground, not simply based on power, but on principle, then we can make enormous progress. And I stand before you today committed to investing American strength in working with nations to address the problems we face in the 21st century.
But when it comes to the latest threat presented by the surge of ISIL in Syria and Iraq, President Obama took a different tack:
There can be no reasoning – no negotiation – with this brand of evil. The only language understood by killers like this is the language of force. So the United States of America will work with a broad coalition to dismantle this network of death.
So what puts this group beyond the pale? Surely they are still human beings, and many of their followers are motivated by the same concerns as the rest of us. Is there no possibility of accommodating whatever legitimate interests they may have, and involving them in the political process? Not while their murderous actions disqualify them from the benefit of more civilized solutions, is President Obama's answer.

While a lot of mediators and other peace advocates might find this answer disconcerting, many of us realize that not all problems are susceptible to a negotiated resolution, and that sometimes you do have to fight. (See Robert Mnookin's book Bargaining with the Devil, which provides some case histories of when to fight and when to negotiate.)

Even though pressing forward with a military solution to this problem, President Obama was still careful to stress that he was not advocating war with Islam.
So we reject any suggestion of a clash of civilizations. Belief in permanent religious war is the misguided refuge of extremists who cannot build or create anything, and therefore peddle only fanaticism and hate. And it is no exaggeration to say that humanity’s future depends on us uniting against those who would divide us along fault lines of tribe or sect; race or religion.
The president took particular care to invite other Arab and Muslim nations to join in condemning the violent and extremist actions of groups like ISIL. The message: Choose sides not based on ethnic or religious identities, but based on whether you are willing to adhere to principles of human rights, self-determination and peaceful resolution of conflict. If you're not willing to adhere to those basic principles, then you must expect the rest of the world to respond with force.

This message will not appeal to those who would divide us by ideology or ethnicity or nationality or religion. It rejects the world view that on one side are arrayed the forces of good (white, Christian, capitalist, or whatever other traits one wants to associate with that side) vs. on the other hand the mighty forces of evil (whether fascists, Communists, Muslims, dark, etc.) Instead the president is suggesting that we assemble from all regions and ideologies those who respect the ideals of peace and freedom, and together that far larger force will defeat the small and weak enemies of civilization.

Friday, September 12, 2014

LA Court Update

More than a year after closing most of the LA Superior Court's ADR program, in conjunction with consolidating and closing courtrooms around the county and other cutbacks, how is the court faring? For all the predictions of disaster, it seems this court system is managing surprisingly well. The courts have been able to maintain most trial dates, in the administrators' view probably the most important requirement for keeping the court processing its workload. Local rules have been modified to decrease the number of court appearances, especially in personal injury cases. Judges are figuring out how to muddle through with fewer staff positions, and parties are coping with a system that has significantly reduced their ability to interact with court personnel.  In other words, cases are still moving through the system, but they are getting less attention along the way.

Cases that used to be resolved with the aid of the ADR department's mediation are still being resolved somehow--presumably either through private mediation, or through negotiation by the parties' attorneys themselves, or through the court's expanded settlement judge program. What has slipped somewhat is the court's ability to resolve motions. In contested cases where the parties feel the need to file discovery motions or summary judgment motions or other motions, the courts cannot set those motions for hearing as quickly as they used to, and that has resulted in significant delays.

As a result, the court is still looking for help in processing its large caseload. Meanwhile there are still lots of mediators out there who would be willing to help. It's frustrating that we can't seem to figure out a way to put them back to work. In the court's view, what is lacking is an administrative structure. In the mediators' view, what is lacking is a push from trial judges to send cases out to mediation.

Perhaps we need to stop looking at mediation programs merely as a means of helping the courts clear their dockets. Mediation's true value is instead providing a means for parties to have their concerns heard and perhaps understood. That is something the courts are simply unable to provide for the vast majority of cases passing through the system. Most litigants experience the court system as a maze where they hardly ever find a chance to interact with the judge, and never have an opportunity to tell their stories. Finding a way to steer more cases to mediation would reduce the court's workload to some extent, but would also have the chance of increasing litigants' satisfaction with the justice system.

Sunday, September 7, 2014

Truth, justice and peace

It being a weak weekend for new movies, we decided to settle for The November Man, a grade B thriller starring Pierce Brosnan. Brosnan plays Peter Devereaux, a retired CIA agent who is lured out of his comfortable life in Lausanne to perform another mission that takes him first to Moscow and then to Belgrade. He's a cold-blooded killer, but eventually we learn that he might have some soft spots. I'm not going to summarize the convoluted and somewhat predictable plot, but will jump right to the moral dilemma at the heart of the story. It involves a Russian politician, Arkady Federov, who is on the verge of being elected the next Russian president. The CIA is interested in helping Federov out, since he is pro-American and might even lead Russia to join NATO. Now there's a tempting prospect in this time of increasing tensions with Russia over Ukraine and elsewhere. Think of it: finally a true end to the Cold War conflict that has been hanging over the world's head all our lives.

But it turns out that Federov is hiding some dark secrets, in which the CIA is also complicit. And Devereaux has to decide whether to help bury the dirty past in order to bring about peace in the world, or to expose Federov's crimes and cause his downfall, which will keep the US-Russia conflict alive. It's the age-old philosophical question of whether the ends justify the means, a common theme in spy stories. Naturally there is a beautiful woman involved who may have to be sacrificed in order to bury the scandal. Should he let her die, and thereby help realize the goals for which he played the spy game for so many years? Or should he help her reveal the secrets that will destroy Federov, tarnish the agency, and threaten world peace? Devereaux gives a rather cavalier response to this question when it is posed to him, but it actually represents a serious dilemma that is frequently encountered in attempting to resolve conflict.

One of the top reasons people advance for being reluctant to agree to a negotiated resolution of conflict is that they cannot abandon the quest for truth and justice. I just heard this feeling expressed recently in a mediation between two former business partners who each felt betrayed by the other.   World peace was not at stake in that case. Still peace between these two parties, possibly even forgiveness and reconciliation, might be achievable, perhaps only at the expense of pursuing justice. At first neither side was quite ready to let go of the conflict. Each still wanted to punish the other side and vindicate their positions in court. Eventually each conceded some ground to the other, making resolution possible.

I'm not sure we should ever try to talk people into sacrificing truth and justice in the name of peace. Instead we might talk about how difficult (and costly) it is to obtain truth and justice in our imperfect system. Or even better to help people appreciate at least a little bit of the other side's conception of truth and justice. That way people will sometimes realize that a negotiated resolution might represent the fairest possible solution.

What they won't be happy being told is that they should give up on the quest for truth and justice. That goes against the grain, not only of nearly every story Hollywood has ever told us, but probably of human nature.