Getting the Parties to the Bargaining Table, Part I
Is negotiation a political issue?
You bet.
Qureshi: Pakistan Won't Negotiate With Terrorists
(RTTNews) - Pakistan's Foreign Minister Shah Mehmood Qureshi said Monday that his government would not negotiate with "terrorists" even as it seeks open dialogue with some militant groups.
WASHINGTON TIMES EDITORIAL
April 16, 2008Jimmy Carter's decision to meet with the terrorist organization Hamas is turning the former president into something of a political pariah.
New York Times "On the Issues" Foreign Policy Terrorism and Iraq
John Edwards
On North Korea: "We should negotiate with the North Koreans. We should be tough. We should require that they stop their nuclear development program. We should have the absolute ability to verify that that has occurred."
On the Middle East: Has said that he believes "a two-state solution is ultimately the answer" but would not negotiate with Yasir Arafat. (before Arafat's death, obviously) Would send an envoy to the region.
Glenn Greenwald in Salon
Wednesday Feb. 27, 2008
Majority of Israelis want to negotiate with HamasSixty-four percent of Israelis say the government must hold direct talks with the Hamas government in Gaza toward a cease-fire and the release of captive soldier Gilad Shalit. Less than one-third (28 percent) still opposes such talks.
I could go on but you get the point. The first decision any negotiator must make is whether he's willing to negotiate with the "opposition." And the second is on what terms.
That decision -- and the many ways in which you can bring your opponent to the bargaining table any time you wish -- with the expectation that your negotiations will either successfully resolve your dispute or drastically limit the amount of time you spend litigating it before settlement will be the subject of this week's posts.
Along the way, we'll talk about the many ways in which the masters of international diplomacy manage to take advantage of favorable negotiation conditions and to finesse unfavorable political climates for the purpose of getting warring parties to meet in an attempt to reach accord..
Stay tuned!
Mediation as Leadership in the Eye of the Storm
This morning's guest blog -- Eye of the Storm Leadership: Mediation as Leadership and Leadership as Mediation -- is by Peter Adler, PhD, President of The Keystone Center and author of Eye-of-the-Storm leadership: 150 Ideas, Stories, Quotes, and Exercises on the Art and Politics of Managing Human Conflicts.
Not long ago, Bob Benjamin and I offered a session at the ABA meeting in Seattle called “Beyond Orthodoxy: The Adaptive Mediator in a Perpetually Changing Marketplace of Clients, Needs, and Ideas.” The session, surprisingly packed to the gills, focused on new and alternative frameworks for mediation.
We began with three assumptions.
First, we posited that mediators have become much too self-absorbed with rules, laws, titles, professional issues, and organizational matters.
Second, we noted that there is insufficient attention being paid to ongoing core negotiation issues and intervention dilemmas, as well as to the tensions surrounding competition, cooperation, and the deep human needs that attend conflict resolution.
Third, we stressed that it is time to take mediation to the next level in our popular and political cultures.
At the end of the session, one very thoughtful gentleman came up to me and said: “I like what you guys are saying but I really need to make a living. Much as I want to move our work to the next level, I have to focus on professionalization issues.”
But are the two incompatible? Not at all!
Certainly mediators need to be concerned about fees, markets, specialties, certifications, associations, and affiliations. But there is a more important challenge, one that, if we meet it capably, will help advance our professional goals and simultaneously take our work to its zenith.
Quite simply, we must make our core mediation values part and parcel of the way leaders in the public and private sectors lead. The creation of a widespread cultural mediation “pull” would necessarily both overtake and serve as the engine of our much narrower efforts at “pushing” settlement, resolution, and agreement in legal markets.
Mediators like to talk about “the field” or “the profession.” But let's remember that our work is, at core, a passion. It is a shared calling that links us to millions of people worldwide who do not have the word "mediator" engraved on their business cards.
Most of people with whom we are so aligned have never been formally trained and don’t know what we are talking about when we slip into technical mediator-babble. Nonetheless they share the same passionate impulses and intellectual creativity as we do when they talk about the power of beneficial negotiation processes, the inclusion of diverse voices in our communities, and the ability of ordinary people to forge wise, effective, and tractable solutions to seemingly intractable problems.
In my work at The Keystone Center, I see these people all the time. Many of them are at the table grappling with the energy, environment, and public health cases and consensus building projects we work on. They come to assert their positions on reformulating food products, realigning the I-70 highway, or stabilizing greenhouse gas emissions and are stunned by their own progress. They open lines of genuinely new communication, form improbable alliances, and craft smart deals.
Tough as nails as negotiators, they also see the enormous value of collaborative problem solving. These same people are in positions to change our political and popular cultures. They hold influential positions in their companies, government agencies, and NGOs. They sit on library boards, church councils, and education commissions. They volunteer time to the PTA and sit on the boards of the local United Way. Some of them occupy elected or appointed to public offices. Others coach basketball teams, lead Rotary Clubs, or run neighborhood farmers' markets. .
We need to connect with these people, learn from them, pass our knowledge and experience to them, and help foster a new generation who can make the obvious links between the mediation skills we have learned and the native leadership work they are doing.
If we do that well, our political culture will flourish in new ways and business will boom.
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Peter S. Adler, Ph.D. is President of The Keystone Center, which applies consensus-building and cutting-edge scientific information to energy, environmental, and health-related policy problems. The Keystone Center also offers extensive training and professional education programs to educators and business leaders and runs the Keystone Science School in the Rocky Mountains.
Adler's specialty is multi-party negotiation and problem solving. He has worked extensively on water management and resource planning problems and mediates, writes, trains, and teaches in diverse areas of conflict management. He has worked on cases ranging from the siting of a 25-megawatt geothermal energy production facility to the resolution of construction and product liability claims involving a multi-million dollar stadium. He has extensive experience in land planning issues, water problems, marine and coastal affairs, and strategic resource management.
Adler has written extensively in the field of mediation and conflict resolution. He is the co-author of Managing Scientific & Technical Information in Environmental Cases (1999); Building Trust: 20 Things You Can Do to Help Environmental Stakeholder Groups Talk More Effectively About Science, Culture, Professional Knowledge, and Community Wisdom (National Policy Consensus Center, 2002); the author of Beyond Paradise and Oxtail Soup (Ox Bow Press, 1993 and 2000) and numerous other articles and monographs.
Negotiating with Terrorists: Choosing Your Bargaining Partners
I do try not to stray into foreign affairs. Heck, negotiating with (not always rational) attorneys is difficult enough! Yet, occasionally, I mention negotiation in the context of international relations, as in my recent post -- Al Qaeda, Understanding the Bean-Counter Next Door -- which I knew might get some irritable comments.
Many (like Christopher Annunziata of the CKA Mediation and Arbitration Blog) will question my sanity or my patriotism (a word so "spun" by current political realities that it has nearly lost its meaning /*) if I say without citation to some legitimate authority that governments can and do negotiate with terrorists. /**
Therefore, I'm providing my readers with an excerpt from a Foreign Affairs article -- Negotiating with Terrorists -- by Peter R. Neumann, Director of the International Centre for the Study of Radicalisation and Political Violence.
Before moving on to the excerpt, I want to share an experience with you. While studying at the Straus Institute I took part in a mock mediation among principals of Hamas, Israel and the PLO. The first thing the mediator said was, "there's a party missing from this meeting." He pulled an empty chair into the circle and said, "the children of Hamas, Israel and the PLO are missing. This chair serves as a reminder to everyone that any agreement we reach must serve the interests of the children and that our failure to reach agreement will harm them."
It was a powerful moment and although the mediation was "mock," everyone assumed their roles with great stridency as to the virtue of their respective positions. When the discussion started to wheel out of control, as it did many times during the day, all the mediator had to do was to put his hand on the "childrens'" chair to restore collaborative purpose.
Excerpt from Peter Neumann's article Negotiating with Terrorists below. If this topic interests you, also see attorney Adir Waldman's book Arbitrating Armed Conflict here.
The argument against negotiating with terrorists is simple: Democracies must never give in to violence, and terrorists must never be rewarded for using it. Negotiations give legitimacy to terrorists and their methods and undermine actors who have pursued political change through peaceful means. Talks can destabilize the negotiating governments' political systems, undercut international efforts to outlaw terrorism, and set a dangerous precedent.
Yet in practice, democratic governments often negotiate with terrorists. The British government maintained a secret back channel to the Irish Republican Army even after the IRA had launched a mortar attack on 10 Downing Street that nearly eliminated the entire British cabinet in 1991. In 1988, the Spanish government sat down with the separatist group Basque Homeland and Freedom (known by its Basque acronym ETA) only six months after the group had killed 21 shoppers in a supermarket bombing. Even the government of Israel -- which is not known to be soft on terrorism -- has strayed from the supposed ban: in 1993, it secretly negotiated the Oslo accords even though the Palestine Liberation Organization (PLO) continued its terrorist campaign and refused to recognize Israel's right to exist.
When it comes to negotiating with terrorists, there is a clear disconnect between what governments profess and what they actually do. But the rigidity of the "no negotiations" stance has prevented any systematic exploration of how best to conduct such negotiations. How can a democratic government talk to terrorists without jeopardizing the integrity of its political system? What kinds of terrorists are susceptible to negotiations? When should negotiations be opened?The key objective for any government contemplating negotiations with terrorists is not simply to end violence but to do so in a way that minimizes the risk of setting dangerous precedents and destabilizing its political system. Given this dual goal, a number of conditions must be met in order for talks to have even a chance of success. Assuming that negotiations are appropriate in all cases would be no more valid a theory than one that assumes they never are.
The first and most obvious question for any government considering negotiations is whether the terrorists it faces can make good negotiating partners. Bruce Hoffman, of Georgetown University; William Zartman, of Johns Hopkins University; and other experts believe that terrorists' stated aims and ideology should be the decisive factor in determining whether they might be willing to compromise. Hence, these experts draw a distinction between nihilistic terrorists, who have "absolute" or even "apocalyptic" goals (often religiously inspired) and for whom violence has become a perverted form of self-realization, and more "traditional" terrorists, who are believed to be "instrumental" or "political" in their aspirations and so have the potential to become constructive interlocutors.
This distinction between supposedly rational terrorists and irrational ones, however, is often in the eye of the beholder. If the IRA and ETA appear to be more rational than, say, al Qaeda, it is because their goals -- nationalism and separatism -- have a long ...
The remainder of this article will unfortunately cost you $5.95 here (emphases my own).
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**/ If you use the simplest definition of "patriotism" -- pride in one's own country -- I, like 90% of Americans, am extremely "patriotic." I am proud of our Constitutional form of government, the American Enlightenment from which it drew its wisdom, and the rule of law. I am particularly proud of the Bill of Rights, a document guaranteeing the liberties of the minority against the potential tyrannies of the majority. My own favorite amendments are the First, the Fourth through Eighth, the Thirteenth through Fifteenth, and, of course, the Nineteenth.
I'm proud to be descended from immigrants, both externally -- England, Sweden, Ireland, Scotland -- and internally -- an escape from the Dust Bowl to California. I'm proud of our unique social and economic mobility though not blinded to the fact that many are stuck in a cycle of poverty from which they have not been able to escape. I'm proud of the public education system that provided me with the ability to go to University and Law School at a very minimal cost.
I am proud to be a part of a culture and political system that values and protects dissent and supports a "free marketplace of ideas" as the best means of distinguishing between the better and the worse; the good and the bad, the moderate and the radical, the useful and the not so much.
There is also much about America of which I am not proud. Just as there is much in myself that does not stir pride. Because we are all dual natured, our political, social, and economic systems naturally follow -- greedy as well as generous; empowering as well as stifling; peaceful as well as war-mongering; forgiving as well as retributive. In a democracy that encourages dissent, my criticims of American institutions and activities should never be taken for a lack of patriotism. In fact, I consider it my patriotic duty to engage in the political process with the intention of making what is good better and diminishing that which is bad.
**/ Here's a useful wikipedia definition of terrorism:
As terrorism ultimately involves the use or threat of violence with the aim of creating fear not only to the victims but among a wide audience, it is fear which distinguishes terrorism from both conventional and guerrilla warfare. While both conventional military forces may engage in psychological warfare and guerrilla forces may engage in acts of terror and other forms of propaganda, they both aim at military victory. Terrorism on the other hand aims to achieve political or other goals, when direct military victory is not possible. This has resulted in some social scientists referring to guerrilla warfare as the "weapon of the weak" and terrorism as the "weapon of the weakest."
Al Qaeda: Understanding the Bean-Counter Next Door
(pi
ctured: papyrus scroll)
It was with more than a little relief that I read today's L.A. Times article on Al Queda's internal organizational memoranda -- Penalty for Crossing an Al Qaeda Boss? A Nasty Memo.
They are, after all, not so different from us as people, however far their ideologies radically depart from our own. And if they are not so different from us, we might be able to negotiate -- or at least have a conversation with --them -- rather than, say, torture their members to obtain the information we seek.
Why? Because conversation reveals interests which can then be served, traded, haggled over, bargained for and, for the peace-niks among us, actually understood. (See Negotiating with Terrorists here).
As the Times article reports this morning, Mohammed Atef, who died in the raid on Osama bin Laden's Afghan refuge in 2001, wrote many memos to the militants under his command, including one that accused a member of "misappropriating cash, a car, sick leave, research papers and an air conditioner during 'an austerity situation' for the network [and] demanded a detailed letter of explanation." As Atef wrote:
I obtained 75,000 rupees for you and your family's trip to Egypt. I learned that you did not submit the voucher to the accountant, and that you made reservations for 40,000 rupees and kept the remainder claiming you have a right to do so. . . . Also with respect to the air-conditioning unit, . . . furniture used by brothers in Al Qaeda is not considered private property. . . . I would like to remind you and myself of the punishment for any violation.
The Times reports that a study of the captured documents issued by the Combating Terrorism Center at West Point paints a
picture of internal strife that . . . highlights not only Al Qaeda's past failures but also -- and more importantly -- . . . offers insight into its present weaknesses[.] Al Qaeda today is beset by challenges that surfaced in leadership disputes at the beginning of the organization's history.
The documents reveal Al Qaeda as having an "egalitarian veneer" that
coexisted with the bureaucratic mentality of the chiefs, mostly Egyptians with experience in the military and highly structured extremist groups.
"They may have imposed the blindingly obdurate nature of Egyptian bureaucracy," said a senior British anti-terrorism official who asked to remain anonymous for security reasons. "You see that in the retirement packages they offered, the lists of members in Iraq, the insecure attitude about their membership, the rifts among leaders and factions."
For the full Times article click here.
Post from Washington D.C.; Lincoln on Right, Wrong, War, Peace and Yes, It's Sunday, God
I read this on the wall of the Lincoln Memorial yesterday, after standing on the steps and imagining Dr. Martin Luther King Junior's "I Have a Dream Speech" (video and text here) forty years after his assassination and said to my husband -- "don't you long for leadership like this again?"
See what Lincoln has to say about "God being on our side" and the end of negotiations in this short but stirring speech.
At this second appearing to take the oath of the presidential office, there is less occasion for an extended address than there was at the first. Then a statement, somewhat in detail, of a course to be pursued, seemed fitting and proper. Now, at the expiration of four years, during which public declarations have been constantly called forth on every point and phase of the great contest which still absorbs the attention, and engrosses the energies of the nation, little that is new could be presented. The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself; and it is, I trust, reasonably satisfactory and encouraging to all. With high hope for the future, no prediction in regard to it is ventured.
On the occasion corresponding to this four years ago, all thoughts were anxiously directed to an impending civil war. All dreaded it--all sought to avert it. While the inaugeral [sic] address was being delivered from this place, devoted altogether to saving the Union without war, insurgent agents were in the city seeking to destroy it without war--seeking to dissole [sic] the Union, and divide effects, by negotiation. Both parties deprecated war; but one of them would make war rather than let the nation survive; and the other would accept war rather than let it perish. And the war came.
One eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the Southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union, even by war; while the government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war, the magnitude, or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible, and pray to the same God; and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces; but let us judge not that we be not judged. The prayers of both could not be answered; that of neither has been answered fully. The Almighty has his own purposes. "Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!" If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him? Fondly do we hope--fervently do we pray--that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether"
With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations.
Conflict Revolution, Mediating Evil, War, Injustice and Terrorism or How Mediators Can Save the Planet
Yes you CAN pre order this book now!! Right here.
Not ready for the revolution? Read this review by clicking on the upper right hand corner and hitting "view full screen" at the bottom of the menu.
Book Review of Conflict Revolution; Mediating Evil, War, Injustice and Terrorism: How Mediators Can Help Save the Planet by Kenneth Cloke reviewed by Victoria Pynchon - Get more free documents
John Adams and Ken Cloke's new Book Conflict Revolution
(image from Fixing Australia, the Blog)
My husband and I were watching part II of the John Adams series on HBO last night -- the part where Benjamin Franklin gives Adams (Paul Giamatti) some OJT on international diplomacy, beginning with -- and I paraphrase -- "you can't get a man to do what you want him to do by publicly humiliating him."
Later, Abigail Adams (Laura Linney) gives essentially the same advice in a womanly way.
"A man likes to make his own decisions," she says as she sends John off to the Continental Congress to seek men and arms (and help from the French) in Massachusetts' recent violent confrontations with the British Army.
Abigail takes a breath to make sure her head-strong husband can hear her.
"Men," she concludes, "do not like to have their decisions made for them."
Still, it wasn't until we reached the movie's scenes dramatizing the delegates' after-hours meetings in the local public house that my husband finally turned to me and said "they're mediating in separate caucus."
The Unity Necessary for Political Change Requires Mutual Self-Interest and Common Ground
The unity necessary to make the agonizingly difficult 1776 decision for independence, revolution and war was not achieved by persuasive argumentation, but by the alignment of each state's self-interest with the self-interest of each other state. This was Franklin's brilliance as international ambassador and as one of the founders of our unprecedented and improbable political enterprise - the united states.
All of which takes me to Ken Cloke's new book Conflict Revolution -- Mediating Evil, War, Injustice, and Terrorism -- which I've been reading in draft but that you'll soon be reading in print -- pre-order now -- courtesy of Janis Publications.
I want to tell you all about Ken's revolutionary shift from rights and power on the one hand to mutually beneficial interests on the other, but I've got work to do. For now, I'll leave you with a snippet from his last chapter which should whet your appetite for more.
Political theorist John Schaar wrote:
“The future is not some place we are going, but one we are creating. The paths are not to be found, but made. And the activity of making them changes both the maker and their destination.”
Ultimately, we are the social, economic, political, and environmental impediments we are seeking to overcome. All the problems and conflicts we want others to resolve are already present within us. The systems, paradigms, cultures, and environments we regard as dysfunctional exist not just around and between, but within each of us. They are us, even if we have devoted our lives to changing them, and must be transformed both within and without.
Systemic, paradigmatic, transformational, revolutionary changes therefore require personal as well as social revolutions. These revolutions do not happen merely by participating in recycling efforts to reduce environmental pollution. At their deepest level, they require us to actually experience ourselves as no different from the plants and animals we are destroying and, more problematically, from the people who are doing the destroying. Only by accepting personal responsibility for global problems on this scale can we discover where they begin inside us, and identify the practical steps we can take to stop them at their source.
Consequently, we not only need to transform the dominating and coercive nature of social, economic, political, and environmental power, and dismantle them at their systemic source by expanding the use of interest-based alternatives and increasing the ability of civil society to solve problems collaboratively. We also need to refuse to participate in them personally, even when they are dedicated to achieving “good” ends. This is no easy matter, both because a great deal is at stake and because domination and coercion are not just large-scale events, but small, barely noticeable everyday behaviors whose origin lies in all of us.
"Your Dreams Do Not Have to Come at the Expense of My Dreams"
If this YouTube Video Doesn't Work, Click Here for the Entire Speech
Let's Just Go Ahead and Assume that, Torture or Not, Waterboarding is A-O.K. The Very Bottom Line? "Torture is Essentially Useless"
I don't make this stuff up. Read Pray and Tell from the American Prospect Online Edition by Jason Vest, excerpt below and full article here.
ON MAY 13, 2004, AS THE WORLD MEDIA WERE IN full serum over Abu Ghraib, an FBI agent who had spent time interviewing terrorism suspects at the U.S. detention facility at Guantanamo Bay, Cuba, fired off a gloomy e-mail to a colleague. Venting about what had happened in Iraq and expressing his fears that, despite the scandal's coverage, nothing would change, much of the agent's angst had to do with post-September 11 notions that treating terrorism suspects as human beings was neither necessary nor useful.
"From what CNN reports, [General Janis] Karpinski at Abu Ghraib said that [General Geoffrey] Miller came to the prison several months ago and told her they wanted to 'gitmoize' Abu Ghraib," he wrote. "If this refers to [intelligence] gathering as I suspect, it suggests that he has continued to support interrogation strategies we not only advised against, but questioned in terms of effectiveness ... we were surprised to read an article in Stars and Stripes, in which [General] Miller is quoted as saying that he believes in the rapport-building approach. This is not what he was saying at [Guantanamo Bay] when I was there."
One among tens of thousands of official documents pried out of government hands under the Freedom of Information Act (thanks to the American Civil Liberties Union), this one, like so many others, never found its way into anyone's story. But from a review of thousands of documents--e-mails, still-unreported communiqu6s, and other pieces of paper--certain themes have become increasingly apparent. Among the most consistent: FBI agents issued repeated objections to the use of torture against foreign terrorism suspects. And from this theme emerges a conclusion that future presidential administrations, and all American citizens, would do well to remember: For the purpose of prying actionable information from suspects, torture is essentially useless.
A Dark Day in America: Torture Veto Vetoed
Being "neutral" does not mean we check our common human decency at the door.
Do understand this however. When we are feeling frightened and disoriented, anger and its explosive cousin rage, consolidates our sense of self. This is one of the main reasons why aggression is so emotionally satisfying. /**
Let's do continue to talk with one another about these matters -- whether we agree about them or not. Understanding our own fallible human nature and forgiving ourselves for our momentary failures to rise above our baser instincts is the critical first step in living our values.
Today, this morning, I must admit that my response to the headlines is anger. My own fear and anger, however, have not been transmogrified into national and international policy and practice. I am sorry, very sorry, to say that the American administration's fear and anger has been.
Bush vetoes interrogation limits
US President George Bush says he has vetoed legislation that would stop the CIA using interrogation methods such as simulated drowning or "water-boarding".
He said he rejected the intelligence bill, passed by Senate and Congress, as it took "away one of the most valuable tools in the war on terror". The president said the CIA needed "specialised interrogation procedures" that the military did not. Water-boarding is condemned as torture by rights groups and many governments. It is an interrogation method that puts the detainee in fear of drowning.
Despite the advice of mothers everywhere -- "you get more with honey than with vinegar" -- that renegade of international law, George Bush, has once again contravened this country's aspirational goal of serving as a model of human rights and liberties.
Why mother was right -- and Bush wrong -- in my next post.
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/** Because our earliest experiences of helplessness relate to our size, strength and intelligence, only anger and its explosive cousin, rage, allow us to prove to ourselves and others that we are powerful instead of weak, competent rather than stupid, large rather than small. See See D.L. NATHANSON, SHAME AND PRIDE: AFFECT, SEX AND THE BIRTH OF THE SELF 209 (1992).
Thus do people who feel humiliated by another's aggression (such as the 9/11 attacks) respond in an attack mode, particularly those who feel "endangered" by the depths to which their self-esteem has been reduced by the assault on their sense of safety and self-determination. Id. Such individuals experience humiliation as a threat to their physical well-being and lack the ability to trust and rely upon others. Id.
The Peace Symbol Turns Fifty
Thanks to Dominique Foucart at Réseau Médiation for directing us to the web site of the 50th Anniversary of the Peace Symbol here -- which we picked up in Dominique's weekly column -- this week in the anglophone blogosphère.
Take a look. Not only will you find a world of peace symbol images, but also other Peace Sign memorabilia. Yes, I'm nostalgic and yes, it's not as easy as flashing the "peace sign" at the on-lookers from a 1969 Viet Nam War protest rally, but it is what we all want and it is possible.
Why do I continue to believe in peace despite having lived a sufficient number of years to become weary and cynical?
Because it was only a few hundred years ago that our very British ancestors (well, my very British ancestors) were beheading traitors and putting their heads on spikes on the London Bridge.
You've got to admit, things have gotten better over time!
The peace symbol used here was contributed to the Peace Symbol Anniversary site by Kirsten Joost of Toronto Canada. Thanks Kirsten!
Diane Levin and Jim Melamed on Presidential Negotiation Styles
There is no golden age, nor any "right" candidate (I'm still hoping for a Clinton-Obama ticket and no I don't care whose name is above the title; I'm for marrying vision with experience instead of wasting everyone's considerable contributions on a Democratic firing squad -- a CIRCLE).
Still, it's good to hear mediators talking about the Presidential race, particularly Diane Levin and Jim Melamed, the latter who published Obama's Message - Mediation's Political Triumph -- at mediate.com and the former who warns us all against One Trick Ponies here.
Melamed's citation of Obama's "mediative" debating points below:
- “ . . . it is important for the United States to not just to talk to its friends but also to talk to its enemies. In fact, that's where diplomacy makes the biggest difference.”
- “I recall what John F. Kennedy once said, that we should never negotiate out of fear, but we should never fear to negotiate. And this moment, this opportunity when Fidel Castro has finally stepped down, I think is one that we should try to take advantage of.”
- “But I do think it is important, precisely because the Bush administration has done so much damage to American foreign relations, that the president take a more active role in diplomacy than might have been true 20 or 30 years ago. I think that it's important for us, in undoing the damage that has been done over the last seven years, for the president to be willing to take that extra step.”
- “We are a nation of laws and we are a nation of immigrants, and we can reconcile those two things.”
- “And the Bush administration is not real good at listening. That's not what they do well. (Laughter.) And so I will reverse that policy.”
- “. . . And what they see is that if we don't bring the country together, stop the endless bickering, actually focus on solutions and reduce the special interests that have dominated Washington, then we will not get anything done. And the reason that this campaign has done so well -- (applause) -- the reason that this campaign has done so well is because people understand that it is not just a matter of putting forward policy positions.
- Senator Clinton and I share a lot of policy positions. But if we can't inspire the American people to get involved in their government, and if we can't inspire them to go beyond the racial divisions and the religious divisions and the regional divisions, that have plagued our politics for so long, then we will continue to see the kind of gridlock and non-performance in Washington that is resulting in families suffering in very real ways.”
- “And I've said that I'm going to do things differently. I think we have to open up the process, everybody has to have a seat the table, and most importantly, the American people have to be involved and educated about how this change is going to be brought about.”
Cross-Cultural Negotiation Insights from the Kellogg School of Management
When you mediate disputes in a major urban center like Los Angeles, you do a lot of cross-cultural negotiation as a matter of course. I've relied in the past upon the Kellogg School of Management's Leigh Thompson and am happy to report that one of her fellow professors, Jeanne Brett has devoted an entire book to the intricacies of negotiating across cultural lines.
Excerpt below from the Wall Street Journal's LiveMint article on Professor Brett's book The Negotiation Dance below. I link to Professor Brett's book Negotiating Globally because I haven't been able to find a link to the cited tome mentioned here.
For full article, click here. And there's an entire page of Kellogg Negotiation Books here!
In The Negotiation Dance: Time, Culture, and Behavioral Sequences in Negotiation, Kellogg School of Management professor Jeanne Brett (with Wendi Adair, assistant professor at the University of Waterloo) presents the intricate patterns of international negotiation, providing insights designed to encourage sure-footedness.
“Negotiating cross-culturally presents many challenges,” says Brett, the DeWitt W Buchanan Jr professor of dispute resolution, “but one of the most important is how people communicate information about their preferences and priorities”.
Brett notes that negotiators from low-context cultures—those that tend to take spoken words at face value, as in the US—typically gain information about the other’s preferences by asking and answering questions. In contrast, negotiators from high-context cultures—those in which people infer additional meaning that may be implied but not directly stated—frequently keep mental tallies of offers throughout the process. This type of behaviour is common in China, India and Japan, among other places.
“It’s important for negotiators from low-context cultures to learn to read information from the offer patterns of the other side, so as not to be at a disadvantage when a negotiator is reluctant to share information directly,” notes the professor, who has authored more than 50 articles and four books, including Negotiating Globally, which won the International Association for Conflict Management’s Outstanding Book Award in 2002.
The Negotiation Dance, published in Organization Science in 2005, presents a model that Brett teaches her students to facilitate tracking offers, infer preferences and priorities and record a visual picture of the progress of the negotiation.
Off-Shoring Dispute Resolution to India?
The Hindu News Update Service reports on the emergence of online dispute resolution in India here.
Let me just say this. There cannot be too many people practicing mediation.
There can only be too few.
Excerpt below.
Online Dispute Resolution involving mediation and arbitration with the help of technology, was emerging as a branch of dispute resolution, Chief Justice of Kerala, H L Dattu said on Saturday.
In India, this method is in its infancy stage and is gaining prominence day by day, he said after inaugurating the National Conference on 'court annexed mediation and role of institutional arbitration' here.
With the enactment of Information Technology Act, 2000, e-commerce and e-governance have been given a formal and legal recognition. Even the traditional arbitration law of India has been reformulated and 'Arbitration and Conciliation Act, 1996' was enacted, he said.
For remainder of article, click here.
Negotiating a Culture Inimical to Emotional and Physical Abuse
I saw Athol Fugard's disturbing play Victory tonight at the Fountain Theatre (local L.A. Weekly Review here). As the Weekly writes, "[w]here and how to direct one's rage is the drama's unanswerable, theological question."
I returned home to a reader comment on my Zimbardo post Avoiding Evil and Promoting Good, directing my readers to the Situationist which recently posted a Zimbardo lecture: Genocide to Abu Ghraib: How Good People Turn Evil.
As yesterday's post suggested, we are continually negotiating law and culture with one another, sometimes consciously and sometimes not. The more we understand our own human frailtiies, the better chance we have of avoiding their enactment and the better opportunity all of us have to negotiate self-determination, independence and inter-dependence for all of us.
Upcoming International Dispute Resolution Conferences
These items come unsolicited in my email box. I'm not recommending, but simply sharing, them with you.
The Australasian Forum for International Arbitration (AFIA) will hold its 13th Symposium in Hong Kong, on Saturday, 8 March 2008. Attendance is free of charge. Please see the attachment for the invitation letter as well as the registration form. You may also visit AFIA’s website - www.afia.net.au for more information.
Juris Conferences LLLC presents RESOLVING BUSINESS DISPUTES IN TODAY’S CHINA on Friday, 18 April 2008 at the Sheraton Hotel in Stockholm, Sweden. The Singapore International Arbitration Centre is a supporting organisation for this event.
How to Make Your Opponent Do What You Want Him to Do: Public Dialogue
"Even if your intention is to bring people together, you have to let them decide whether they want to be together." Ken Cloke
You already know the answer to the question posed in this series of posts but I'll say it anyway.
You can't possibly know what you want your opponent to do until you have the opportunity to sit down together to determine what would benefit the two of you the most.
With that in mind, I give you three questions and one process suggested by Ken Cloke at the MBB Conference in a break-out section this past weekend.
FIRST QUESTION: What life experiences have led you to feel so passionately about this issue?
- telling life stories induces empathy
- the story-teller reveals the person behind the spokesperson
- the story reveals the secret meanings underlying the public positions as well as the motivations directing and informing behavior that might otherwise appear evil or irrational
SECOND QUESTION: Is there anything about the position you've taken that you're not 100% certain of and that you'd be open and willing to have a conversation about?
THIRD QUESTION: Is there anything you have in common with your conversational partner or anything that you both believe in?
PROCESS:
- send each side out of the room to list all of the things their side did in their last exchange that undermined communication and partnership.
- when they return, ask whether they are willing to commit to not doing that again
Paternalism, Self-Determination and the Rule of Law
I return from the Mediators Beyond Borders Founding Congress in Colorado with much to think, and write, about.
Let me begin today by telling you a story drawn from my community mediation practice.
The Parties vs. The Lawyers
Crystal and Keith /* are the unmarried parents of a seven year old girl, Taniyah. They have sought the services of the West Hollywood community mediation center because they want to discuss the resolution of their custody dispute outside the presence of their attorneys.
After introductions, Keith and Crystal push a proposed settlement agreement across the conference table. They are shy with one another but united in their desire to reach agreement without any pressure from "The Attorneys."
Two hours later, we are at item no. 23 -- "neither Parent nor either set of grandparents shall physically strike The Child at any time."
"Is this a provision you agree with?" I ask. "It means you can never slap Taniyah's hand," I add. "Is that something you want to agree to?"
"We don't have a choice," says Crystal. Keith nods in assent.
I let the word "choice" hang in the air for a moment as I begin to understand why these two bright, well-educated and articulate young parents have so reluctantly given their meek and mutual approval to every previous item they said they came to the mediation center to discuss.
The Shadow Conflict
I put the "proposed" agreement aside.
"Why don't you have a choice?"
"Because Taniyah's attorney put this into the agreement," says Keith as Crystal nods in agreement, repeating Keith's remark "we don't have any choice."
Taniyah has an attorney, I learn, because Keith's mother -- one of Taniyah's primary caretakers -- left Taniyah at home with her nine-year old cousin, Arabelle to run an errand. Arabelle, a curious child, led Taniyah on an expedition to her grandparents' bedroom where the two found a stash of light porn -- Playboy and the like. That, I'm told, is the only reason Taniyah has an attorney.
It quickly becomes apparent that Crystal and Keith simply assume that Taniyah's attorney is a decision-maker. I'm still considering how to approach this problem when Keith asks the question that leads to the resolution of the "shadow" dispute between the parents and Taniyah's attorney.
"How do we get our power back?"
Justice, Mediation and the Rule of Law
I tell this lengthy story as preface to another from this weekend's Mediators Beyond Borders Founding Congress. Yesterday, someone suggested from the podium that we should include mediation and arbitration agreements in our own contracts with our own clients.
I raised my hand.
"Why," I asked, "do you want to restrict our clients' access to the justice system?" once again demonstrating a fractious lack of diplomacy that makes some people wonder how I could possibly be an effective mediator. /**
It wasn't a well-placed question but it is of a type I often find myself more or less compelled to shoe-horn into any conversation that assumes mediation is best for other people.
Here's what I wish I could have said in a more diplomatic way at some more appropriate time -- taken from Conflict Resolution, Enforcement of Social Link and Substantive Justice.
I invite comment!!!
A number of scholars have pointed out the danger lying in an ideology of harmony related to ADR where agreement is seen as the panacea in every conflict.
They have argued that mediation was essentially supported by [the] middle upper class and social scientists whereas people . . . involved in conflicts[, including the] working class were expecting law and rights to protect them.
Emphasizing free choice, individualism, autonomy and advantage, and assuming instrumental rather than normative and religious orientations of social action, the concept [of mediation as an ideal form of dispute resolution] seems to describe the culture of professional elites rather than of residents of these urban/ethnic neighborhoods.
As Abel has stated, "there is considerable evidence that people want authority rather than informality. They want the leverage of state power to obtain the redress they believe is theirs by right, not a compromise that purports to restore a social peace that never existed."
According to those scholars, ADR could serve as a means of control and domination in keeping and reinforcing power relations. For instance, Milner Ball has defined ADR as "another form of the deregulation movement, one that permits private actors with powerful economic interests to pursue self-interest free of community norms. "
They argue that in traditional societies . . . mediation is used [when] there is no danger of retaliation from the weaker party. The[] . . . focus on relationships [diminishes the parties' focus on] justice[;] individual satisfaction has become the main purpose of conflict resolution.
Although they are conscious of the paradoxes of Law which can either "symbolize justice or conceal repression, reduce exploitation or facilitate it, prohibit the abuse of power or disguise abuse in procedural forms, promote equality, or sustain inequality, they argue that "Without legal power, the imbalance between aggrieved individuals and corporations or government agencies cannot be redressed".
_______________________
* I have changed the parents' names and merged two separate mediations in the interest of confidentiality.
** The answer to this question is as follows: I am not mediating when I am engaged in discussion with friends and colleagues. Just as I do not observe the rules nor use the language of the courtroom at a dinner party, I do not observe the niceties of mediation in public discourse. It would be better if I did. I know that. I'm working on it and will post some insights about constructive public conversations on difficult and divisive topics in my next post.
The Paradox of Power: Trying to Get Your Opponent to Do What You Want: Another Interlude
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Minor wisdom from today's break-out session at the Mediators Beyond Borders Founding Congress.
You give others power over you by attempting to get them to do what you want them to do. Ask any parent in a supermarket with a two-year old. The only power the 2-year old has is not to do what you want him to do.
-- Ken Cloke
How to Make Your Opponent Do What You Want Him to Do: Part I
I'm blogging from the Stanley Hotel -- hence the Stanley Steamer -- in the Rocky Mountains -- hence the snow.
Stephen King wrote the Shining here, not in my room, but right down the hall. The book was Inspired by the Stanley. Hence the picture of Jack.
What's most exciting, however, is that I'm attending the Founding Congress of Mediators Beyond Borders; seeing old friends and meeting for the first time people I've long known at a distance; and getting to know an incredibly diverse and fascinating group of people dedicated to bringning conflict resolution techniques to international conflict.
More of that later.
Before getting to the "money shot" about changing the other guy's mind, I want to share with you Ken Cloke's 12 Ways Systems Resist Change from his lecture yesterday: Mediators as Global Citizens: How Mediators Can Change the Planet.
I start with resistance because you can't even begin to think about change until you understand why it is you're not getting past opposition's door. You might most readily notice in the following list the ways in which your workplace (or your government!) supports its dysfunction.
You'll also recognize your opponent's opposition to you and perhaps even yours to him.
- Marginalization: Making ideas, people, perspectives, or insights that could threaten the system appear unimportant, irrelevant, irrational, or impossible to achieve.
- Negative Framing: Using language that frames new ideas and critics negatively so that nothing that threatens the system can be thought or communicated successfully.
- Exaggeration: Stereotyping or exaggerating one part of an idea in order to discredit the other parts and the whole.
- Personalization. Reducing ideas to individual people, then discrediting or lionizing them.
- Sentimentalization: Using sentimental occasions, ideas, emotions and language to enforce conformity and silence criticism.
- Seduction. Describing the potential of the existing system in ways that unrealistically promise to fulfill people's deepest dreams and desires and blame the failure to achieve them on others.
- Alignment: Communicating that in order to exist, succeed, be happy or achieve influence, it is necessary to conform to the system regardless of its faults.
- Legitimization. Considering only existing practices as legitimate an all others as illegitimate.
- Simplification. Reducing disparate, complex, subtle, multi-faceted ideas to uniform, simplistic, superficial, emotionally charged beliefs.
- False Polarization: Limiting people's ability to choose by falsely characterizing issues as good or evil, right or wrong, either/or.
- Selective Repression. Selecting individual critics as examples, bullying them for disagreeing or failing to conform and ostracizing them.
- Double Binds: Creating double standards that require people to live divided lives, or make it difficult for them to act with integrity.
Change strategies tomorrow.
Our Man in Iraq on the State of the Union
The Negotiation Law Blog's dear good friend, Mark Robbins, pauses in his work to make sure we didn't miss the President's reference -- in his State of the Union address -- to the work Mark is doing in Al-Hillah, Iraq.
And they saw our troops, along with Provincial Reconstruction Teams that include Foreign Service officers and other skilled public servants, coming in to ensure that improved security was followed by improvements in daily life. Our military and civilians in Iraq are performing with courage and distinction, and they have the gratitude of our whole nation.
MARK A. ROBBINS
Rule of Law Advisor
Babil PRT, Al-Hillah, Iraq
File this post in 101-Things-to-Do-with-Your-Law-Degree and Restoring-the-Rule-of-Law-Everywhere!
Thanks, Mark. God Speed!
DIY Dispute Resolution: Accountability, Apology, Forgiveness and Reconciliation
When I was mediating the resolution of litigation on my local court-annexed ADR panel, I used to help attorneys, their insurance adjusters and physician clients resolve medical malpractice cases.
Some of my most profound human interactions occurred in these mediations. One surgeon said to me, with burning passion in his gaze, "you do not understand. The operating room is my church."
Another told me he could not consent to the settlement of a lawsuit because the sum the carrier was offering "would mean that I killed my patient."
Though I do not mediate malpractice cases anymore, I have been given a taste of the trauma that physicians experience when they are sued for malpractice.
What Does This Have to Do with Do It Yourself Dispute Resolution?
Research on the reasons patients sue their doctors suggest that malpractice litigation could be avoided if: (1) the patient understood the reason for an unexpectably bad result; and, (2) the physician were able to express to the patient responsibility for the outcome. See e.g. this Lancet study reporting that patients expressed the following reasons for suing their physicians:
[1] concern with standards of care--both patients and relatives wanted to prevent similar incidents in the future;
[2] the need for an explanation--to know how the injury happened and why; compensation--for actual losses, pain and suffering or to provide care in the future for an injured person;
[3] accountability--a belief that the staff or organisation should have to account for their actions; [and]
[4] [p]atients taking legal action wanted greater honesty, an appreciation of the severity of the trauma they had suffered, and assurances that lessons had been learnt from their experiences.
Which Brings Us to Transplant Surgeon Pauline Chen's Book Final Exam
Chen tells us that surgeons, who expect themselves and their colleagues to be infallible, have ritualized their response to error in Morbidity and Mortality -- M