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By Kenneth Cloke

The Copenhagen Climate Change Conference -- What You Can Do

In December 2009, delegates from around the world will meet in Copenhagen, Denmark for the 15th Conference of the Parties (COP 15) to the United Nations Framework Convention on Climate Change (UNFCCC).  Copenhagen will provide a critical opportunity for the world’s nations to reach a comprehensive agreement before the commitments set out in the Kyoto Protocol expire in 2012. 
A recent report by the UN Intergovernmental Panel on Climate Change points to COP 15 as the focal point for decisive action by the world’s nations, in the effort to avoid a growing number of potentially disastrous environmental changes. 

Yet a discussion of conflict prevention and resolution mechanisms is missing from the COP 15 Provisional Agenda, and the range and power of environmental mediation and similar techniques is not widely understood or agreed to by the parties who will be expected to sign the agreement that will replace the one adopted in Kyoto. 

Article 14 of the 1992 UNFCCC negotiated in New York and Rio de Janeiro, which is reaffirmed in Article 19 of the Kyoto Protocol, states:

“… in the event of a dispute between any two or more Parties concerning the interpretation or application of the Convention, the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice.” 

However, the International Crisis Group, a nonpartisan conflict analysis advisory organization, has pointed out:

“[A] key challenge today is to better understand the relationship between climate change, environmental degradation and conflict and to effectively manage associated risks through appropriate conflict prevention and resolution mechanisms.” 

It is clear to experienced conflict resolution professionals everywhere that conflict prevention and resolution mechanisms need to be a core part of the Copenhagen climate change negotiations and an indispensible element in international efforts to implement them afterwards.  Without these mechanisms, global solutions will be much more difficult to negotiate and implement effectively and the time available to us to implement effective solutions is running out. 

It is therefore incumbent on conflict resolution professionals to join together, travel to Copenhagen if possible, and if not, initiate a set of local and international dialogues on how conflict resolution methods can be used to effectively resolve climate change disputes. 

What You Can Do

MBB has been provisionally accepted as an observer organization at the COP 15 meeting, and to my knowledge is the only mediation organization that will be present. We have a simple message: we want to convince the delegates that mediation is a viable option for resolving climate change disputes. 

To achieve this goal, we will bring mediators from around the world to Copenhagen to inform delegates of the advantages of conflict resolution in resolving environmental and climate change issues, and encourage and support all parties in using it. 

For those who are unable to attend the meeting, we will need justifications, explanatory materials and resources on environmental dispute resolution that can be passed out to delegates, and will need lots of local support.  Here, for example, are ten things you can do: 

1. Come to Copenhagen and participate in the Mediation Seminar on December 10 and 11;
2. Attend the COP 15 meeting as a MBB Observer and speak directly to national representatives who are attending the Conference;
3. Email delegates and opinion leaders in your area and encourage them to support ADR;
4. Help fund travel scholarships for mediators in countries affected by climate change who do not have the resources to come to Copenhagen;
5. Contribute blogs to the Forum, a MBB website where people can discuss environmental issues;
6. Contribute articles on environmental conflicts and mediation to “Conflictpedia;”
7. Film brief interviews with knowledgeable people in your area on the value of mediating climate change issues to put on Youtube and the MBB webpage;
8. Collect training materials, stories and case studies on environmental mediation, especially regarding climate change;
9. Contribute names and contact information to a referral list of mediators around the world who are able to mediate environmental disputes;
10. Form an MBB Chapter in your area and help organize dialogues on climate change and ways of resolving environmental conflicts. 

Whether you can attend or not, Copenhagen represents a unique opportunity for mediators to contribute to solving global environmental problems.  The time to act is now.  Please join us and help save the planet. 

Ken Cloke
President,
Mediators Beyond Borders
 

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Copenhagen DK, Corvallis and Santa Monica USA – 22 May 2009

by Gregg Walker, Tina Monberg, and Kenneth Cloke of Mediators Beyond Borders, 
Jens Emborg, Mie Marcussen, Lone Clausen, and Vibeke Vindeløv of Nordic Mediators

Place: Glyptoteket, Copenhagen

Date: The 10th and 11th December 2009

During eleven days in December 2009 delegates from throughout the world will meet in Copenhagen for the 15th Conference of the Parties – COP15 – to the United Nations Framework Convention on Climate Change, UNFCCC. The Denmark meeting is crucial for the international climate change negotiations. The climate change crisis challenges people throughout the world to invent and implement innovative ways to mitigate and thwart climate changing causes and effects. The crisis calls for new methods for nations and people to overcome differences and work together with the objective of preventing and resolving conflict arising because of limited resources and/or the effects of climate change.

In a Manifesto from 9th July 1955 issued in London, Albert Einstein and other leading scientists urged humanity to find peaceful means for the settlement of all matters based on new ways of thinking. An important new way of thinking features the use of the collaborative, participatory, and pluralistic conflict resolution processes like mediation and facilitation. Construction of a new global conflict prevention and resolution infrastructure is critical to a comprehensive international climate change policy. Such construction will be a major part of the Copenhagen Mediation Seminar, with discussions of conflict prevention and resolution. Our aim is to gather 100 mediators to create a new Manifesto showing the infrastructure to peaceful conflict resolution.

Please reserve this important seminar for 100 mediators attending from all parts of the world. More information will come shortly.

Gregg Walker, Tina Monberg, and Kenneth Cloke of Mediators Beyond Borders – Jens Emborg, Mie Marcussen, Lone Clausen, and Vibeke Vindelov of Nordic Mediators

During eleven days in December 2009 delegates from throughout the world will meet in Copenhagen for the 15th Conference of the Parties (COP 15) to the United Nations Framework Convention on Climate Change (UNFCCC). The Denmark meeting is crucial for the international climate change negotiations. In December 2007 the parties to the UNFCCC agreed at Bali, Indonesia that negotiations on a future agreement have to be concluded at COP 15. The decision reflected the increased emphasis on the need for swift action made in the latest report by the UN Intergovernmental Panel on Climate Change. The Bali delegates also recognized that 2009 would be a critical opportunity for an agreement before the commitments set in the Kyoto Protocol expire in 2012.

A Critical Issue

The International Crisis Group, one of the world’s leading independent, non-partisan conflict analysis advisory organizations, stresses that “a key challenge today is to better understand the relationship between climate change, environmental degradation and conflict and to effectively manage associated risks through appropriate conflict prevention and resolution mechanisms.” Conflict preventive measures and resolution mechanisms need to be part of the climate change negotiations, both in Copenhagen and beyond.

At the December 2007 United Nations Conference on Climate Change in Bali, Indonesia, the German Advisory Council on Climate Change presented a report, World in Transition – Climate Change as a Security Risk. Based on research into environmental conflicts, the causes of war, and climate impacts, the report states that climate changes could “overstretch many societies’ adaptive capacities within the coming decades. This could result in destabilization and violence, jeopardizing national and international security to a new degree.”

Drawing on the work of international experts and organizations including the United Nations Environmental Programme (UNEP), the report notes, though, that “climate change could also unite the international community, provided that it recognizes climate change as a threat to humankind” and adopts “a dynamic and globally coordinated climate policy.” If the international community “fails to do so,” the report emphasizes, “climate change will draw ever-deeper lines of division and conflict in international relations, triggering numerous conflicts between and within countries over the distribution of resources, especially water and land, over the management of migration, or over compensation payments between the countries mainly responsible for climate change and those countries most affected by its destructive effects.” In its introduction to the report, the UNEP website states that “combating climate change will be a central peace policy of the 21st century.” Conflict preventive measures and resolution mechanisms should be part of the climate change negotiations, both in Copenhagen and beyond.

Scientists See the Need


In addition, the scientific community recognizes that global climate change issues challenge our ability to deal with a changing environment containing huge potential for conflict. In March 2009 over 2500 delegates from nearly 80 countries participated in the International Scientific Congress on Climate Change: Global Risks, Challenges & Decisions in Copenhagen, Denmark. At the end of the conference the delegates presented a set of key messages that included cautions about conflict and climate change.

Key Message 2: Social Disruption stated that “recent observations show that societies are highly vulnerable to even modest levels of climate change, with poor nations and communities particularly at risk. Temperature rises above 2C will be very difficult for contemporary societies to cope with.”

Key Message 3: Long Term Strategy stressed that “rapid, sustained, and effective mitigation based on coordinated global and regional action is required to avoid ‘dangerous climate change’ regardless of how it is defined. Delay in initiating effective mitigation actions increases significantly the long-term social and economic costs of both adaptation and mitigation.”

Key Message 4: Equity Dimensions emphasized that “climate change is having, and will have, strongly differential effects on people within and between countries and regions, on this generation and future generations, and on human societies and the natural world.”

The delegates recommended the use of tools and governance practices to address these fundamental concerns. Conflict preventive measures, conflict transformation and resolution are essential to meet climate change challenges.

Rio and Kyoto Precedents


The COP 15 Provisional Agenda, reviewed in Bonn, Germany in early June, lists a range of essential issues, from emission reduction to technology transfer. Conflict prevention and resolution mechanisms are missing from the Agenda despite the fact that Article 14 of the 1992 UNFCCC (negotiated in New York and Rio de Janeiro and reaffirmed in Article 19 of the Kyoto Protocol) states that “in the event of a dispute between any two or more Parties concerning the interpretation or application of the Convention, the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice.” This article, though, is not sufficient to address the complex conflicts between nations and peoples likely to emerge as climate change impacts accelerate. Conflict preventive measures and resolution mechanisms should be part of the talks in Bonn, Copenhagen, and beyond.

Beyond Rio and Kyoto, there is precedent for putting conflict resolution on the Climate Change Conference agenda. A number of UN treaties and conventions that deal with environmental issues include conflict or dispute resolution mechanisms. For example, the UN Convention on the Non-Navigational Uses of International Watercourses, adopted in 1997 by the UN General Assembly, specifies conflict resolution methods. Agenda 21, the Environment and Development Agenda administered by the United Nations Environmental Program (UNEP) emphasizes conflict resolution.

Article 39.3 specifies the need:

g) To identify and prevent actual or potential conflicts, particularly between environmental and social/economic agreements or instruments, with a view to ensuring that such agreements or instruments are consistent. Where conflicts arise, they should be appropriately resolved;

    h) To study and consider the broadening and strengthening of the capacity of mechanisms, inter alia in the United Nations system, to facilitate, where appropriate and agreed by the parties concerned, the identification, avoidance and settlement of international disputes in the field of sustainable development, duly taking into account existing bilateral and multilateral agreements for the settlement of such disputes.

An Important Commitment


Climate change negotiators and decision-makers should affirm the commitment that people, communities, and nations will not be in violent situations due to conflicts that arise as a consequence of climate change. Politicians, diplomats, and specialists who attend the Climate Change meetings should consider conflict prevention measures and resolution mechanisms.

The climate change crisis challenges people throughout the world to invent and implement innovative ways to mitigate and thwart climate changing causes and effects. The crisis calls for new methods for nations and people to overcome differences and work together with the objective of preventing, minimizing and resolving conflict arising because of limited resources and/or the effects of climate change.

Construction of a new global conflict prevention and resolution infrastructure is critical to a comprehensive international climate change policy. Such construction can start with the Copenhagen conference, with discussions of conflict prevention and resolution along side the negotiations of scientific and technical issues of climate change.

The authors’ affiliations:


Gregg Walker, Ph.D., Professor of Speech Communication, Oregon State University, USA (gwalker@orst.edu)


Tina Monberg, Mediator, exam. psychotherapist and lawyer, Mediationcenter Ltd., Denmark (tm@mediationcenter.dk)


Kenneth Cloke, Mediator, President of Mediators Beyond Borders, California, USA (kcloke@aol.com)


Jens Emborg, Ph.d. MMCR, Associate Professor of Environmental Conflict, University of Copenhagen, Denmark (jee@life.ku.dk)


Mie Marcussen, M.Sc., MMCR, Mediator, President of Nordic Mediators, Private Consultant, Denmark (kontakt@miemarcussen.dk)


Lone Clausen, MMCR, Developing Aid and Crises Expert, Private Consultant, Danmark (lc@direkte.org)


Vibeke Vindeløv, Dr., Professor of Mediation and Conflict Resolution, University of Copenhagen, Denmark (Vibeke.Vindelov@jur.ku.dk)
 

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Check out today's ADR Prof Blog post What are their interests?  Negotiating with North Korea.  Excerpt below.

North Korea recently sentenced two U.S. journalists, Laura Ling and Euna Lee, to 12 years of hard labor for illegally crossing the North Korean border.  By all accounts imprisonment in North Korea, especially in a labor camp, is horrible and potentially life-threatening.  The question now is whether their early release can be negotiated. 

 

This situation poses an extreme example of a difficult negotiation.  Power and culture are key factors.  The challenge in this negotiation is to understand what matters to the North Koreans and to use that understanding to work towards an agreement to release Ling and Lee.  But gaining this understanding is complicated because the North Korean government keeps the country closed to most foreigners which means that few U.S. citizens have experience in North Korea, much less experience negotiating with the government.  Reportedly the State Department is engaged on Ling and Lee’s behalf—but without full diplomatic representation that engagement is limited (particularly when the North Koreans prevent the U.S. Envoy for North Korea from even entering the country).  Potential candidates to act as negotiators include New Mexico Governor Bill Richardson (who has successfully negotiated with the North Koreans in the past) and former Vice-President Al Gore (who owns Current TV, the company the journalists were working for).

Continue reading here.

Time to Revisit the Resolution of the Cuban Missile Crisis

the president [Kennedy] recognized that, for Chairman Khrushchev to withdraw the missiles from Cuba, it would be undoubtedly helpful to him if he could say at the same time to his colleagues on the Presidium, "And we have been assured that the missiles will be coming out of Turkey." And so, after the ExComm meeting [on the evening of 27 October 1962], as I'm sure almost all of you know, a small group met in President Kennedy's office, and he instructed Robert Kennedy—at the suggestion of Secretary of State [Dean] Rusk—to deliver the letter to Ambassador Dobrynin for referral to Chairman Khrushchev, but to add orally what was not in the letter: that the missiles would come out of Turkey.

Ambassador Dobrynin felt that Robert Kennedy's book did not adequately express that the "deal" on the Turkish missiles was part of the resolution of the crisis. And here I have a confession to make to my colleagues on the American side, as well as to others who are present. I was the editor of Robert Kennedy's book. It was, in fact, a diary of those thirteen days. And his diary was very explicit that this was part of the deal; but at that time it was still a secret even on the American side, except for the six of us who had been present at that meeting. So I took it upon myself to edit that out of his diaries, and that is why the Ambassador is somewhat justified in saying that the diaries are not as explicit as his conversation.

From Sorensen comments, in Bruce J. Allyn, James G. Blight, and David A. Welch, eds., Back to the Brink: Proceedings of the Moscow Conference on the Cuban Missile Crisis, January 27-28, 1989 (Lanham, MD: University Press of America, 1992), pp. 92-93.

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I was reading a great article in the New York Times this morning about "blue sky" transparent diplomacy in light of Obama's Cairo speech and was intrigued by the phrase "constructive ambiguity" in international diplomacy.

The full Obama-Cairo Speech below:

Check out Experts Say Full Disclosure May Not Always Be Best Tactic in Diplomacy.  While citing the importance of back channel communications, the author quotes "one of the nation's most experienced career diplomats and former under secretary of state"  as identifying the two "home truths" in international diplomacy:

One is, don’t tell lies. The other is, you can say more in private than you can in public, but they have to be consistent.

This brought to mind not simply the one or two memorable instances in which I caught mediators in deception during my litigation practice, but a recent experience communicated to me by a friend about one of those $15/K a day mediators.  I ask for the full 411 on these mediations because I'm intrigued by the value $15K/day buys.  Here's the story.

My friend called me during a recent mediation to tell me that his mediator had just left the room after leaving this message with his "team."

Your opponents just asked me to make a mediator's proposal of $X.Y million.

Assuming that this disclosure was not a breach of confidence, I had to ask myself whether it was simply a (manipulative) hypothetical "offer" approved by the other side in form and content that the other side could safely disown.  In either case, I felt it was (a) unethical - i.e., a breach of confidence; or, (b) partial (not neutral, which is also unethical).

Someone could likely talk me down off the ledge on this one but I'm having trouble seeing it as permissible mediator behavior.   Assuming it wasn't a breach of confidence, it raises the question whose ox is being gored here?  How much manipulation by the mediator is acceptable - is ANY manipulation acceptable and if the mediator is manipulating, is it POSSIBLE for him/her to do so without also being PARTIAL?

I have "caught" mediators in deception during my practice (and have not been quiet about my experience).  In case mediators do not recall legal practice, let me remind them that counsel talk to one another and despite our differences usually trust one another more than we trust our mediator.  If you lie to one of us or disclose something you shouldn't be disclosing, don't let the separate caucuses in which the mediation is taking place mislead you about the state of "play" in the litigation.  If the mediator is dishonest, will be found out.

If we do not hold ourselves to the absolute HIGHEST POSSIBLE ethical standards, our credibility, and our careers, are seriously at risk.

Would any of my fellow mediate.com bloggers like to weigh in on this?  Geoff Sharp, Jeff Thompson, Phyllis Pollack, Stephanie West Allen, Nancy Hudgins, Colin Rule, Tammy Lenski, Josh Weiss, Jan Frankel Schau, Jeff Krivis, Mariam Zadeh, John DeGroote, Steve Mehta, Arnold Zeman?

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Announcement: MBB Seeks Acting Executive Director

Mediators Beyond Borders (MBB) is a non-profit, humanitarian organization established to partner with communities worldwide to build their conflict resolution capacity for preventing, resolving and healing from conflict.

MBB is accepting applications for the position of Acting Executive Director to assist the organization with strategic planning, fund development, project coordination and operations. The position is unpaid and for a 6 month term. Location is flexible. The position will commence by September 1, 2009.

To apply, please send the following materials by June 30, 2009 to melissambb@gmail.com:

1. Letter of Interest (indicating qualifications, interest and availability)
2. CV or Resume
3. References List (should contain three professional references)

Applications will be reviewed on a rolling basis. Selection will be made by the MBB Board of Directors and all applicants will receive notification by August 1, 2009.
 

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The most stunning presentation at the recent ABA DRS conference, about which I will write much more very very soon. For the web site, click here!

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Whenever I read about restorative justice (my paper on the topic here) I am somewhat ashamed that I cannot put aside my own grievances when others resolve harms of such major magnitudes such as the murder of children and genocide.  I am reminded of this today because of Paul and Rebecca Mosley's blog on the work they are doing in Burundi.

What relevance does this bear to my attempt to settle "pure money" litigation you ask.  First, I must say that there is no such thing as "pure money" litigation (see my paper on this topic here starting on page 60).  Second, the conflict of litigation is nothing compared to the matters resolved in a restorative justice session -- matters such as the murder of one's child and rape by one's own brother at knife-point (in the tragically mesmerizing Beyond Conviction). And in the unfortunately common outbreak of genocide such as that occurred in Rwanda. 

There is something for all of us to learn about the power of reconciliation of these matters of far greater import than the value of a breach of contract or even the infringement of a patent, trade mark, trade name or copyright.  In my own personal life I am forced to ask myself, in light of the courage displayed by these people, who I am not to forgive.

So today I bring you a recent post from Paul and Rebecca Mosley's blog Holy Week and Transitional Justice about their work in Barundi with the Mennonite Central Committee. These are the modest international heroes of the modern peace movement.  I will let them explain their work in their own words below.

I was invited to represent MCC at a meeting of Peace Church organizations working in Burundi. Representatives from The American Friends Service Committee, Quaker Peace Network, as well as others were in attendance. When asked what the AFSC saw as ‘flashpoints’ of conflict—anticipating and trying to prevent potential conflict flashpoints is an important part of peace work— they identified several problems. First, there is the continued problem of repatriated refugees coming back to land they had abandoned that is now occupied. There have been many ongoing land disputes that have often turned violent and even murderous. Secondly, there are the upcoming 2010 elections. There will be many political parties, including some fairly radical ones formed by recently demobilized rebel groups. Peaceful transfer of power is historically almost non-existent in sub-Saharan African nations and there is considerable anxiety about what will happen in the next 12 months. However, the biggest concern identified by AFSC was ‘transitional justice’. This is really a serious problem here and speaks to the greater problem of trying to bring to ‘justice’ those who have been guilty of past war crimes.

Here’s the problem: how do you persuade a government to pursue justice for those who are guilty of committing crimes in the past 14 years of civil war, when many perpetrators are now occupying seats of power in the government itself? Also, there is the ongoing undercurrent of ethnic conflict. Any attempt by one ethnic group to pursue ‘justice’ against another looks like retribution and not impartial arbitration. Add the complication of a highly politicized election, and this becomes a real conflict tinderbox. Doing nothing (letting sleeping dogs lie), however, is not an option as it fuels growing resentment in the population, as they see many known war criminals ‘getting away with murder.’

At the local level, MCC partners—particularly MiPAREC—have set up ‘peace committees’ in communities all over the country to try to introduce concepts of ‘restorative justice’ to resolve conflicts. This involves providing a forum for grievances to be aired, victims’ stories to be heard, and an opportunity for perpetrators to ask for forgiveness and make amends. They have had a great deal of success at the local level, but whether this type of reconciliation can be accomplished at the national level is an open question.

As I said, the problem is that there is no impartial arbitrator. Everyone is on some side, and many who would need to implement justice have blood on their own hands.

I am learning that justice is not a simple matter of getting the facts and making a ruling. Those in power can decide which facts are relevant and can largely determine who is tried and the outcome of any legal process.

What human beings are capable of—even at their best—is only a shadow of what I believe divine justice will look like. I am considering in a new way that passage in 2 Corinthians (5:17-21) that says we have been given “the ministry of reconciliation.” – which is the gospel! We may never be divine judges, but we have, in Jesus, the capacity for divine forgiveness. I pray this capacity will be shared in Burundi by those who follow him.

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Please join the Los Angeles Chapter of Mediators Beyond Borders on May 30, 2009 (.pdf) at the home of Ken Cloke and Joan Goldsmith in Santa Monica for conversation on global conflicts.  Contribute your  ideas, expertise, donations and support, in building conflict resolution capacity around the world.

May 30, 2009
2 PM ‐ 5 PM
At the home of:
Ken Cloke and Joan Goldsmith
2411 18th Street
Santa Monica, CA 90405
310‐396‐4664

Mediators Beyond Borders is a nonprofit network of volunteer mediators, arbitrators, trainers, facilitators, coaches, and experts in dialogue and similarskills. We are actively engaged in organizing projects to develop conflict resolution skills in the Middle East, Ghana, Liberia, Zimbabwe, Kenya,Nigeria, New Orleans, Colombia, Ecuador, Nepal, Yemen, Thailand, Cambodia, Kosovo, and other communities worldwide.

If you are unable to attend, please mail a tax deductible donation to Mediators Beyond Borders, a nonprofit 501 (c) (3) organization, c/o Ken Cloke and Joan Goldsmith, 2411 18th Street, Santa Monica, CA 90405.

RSVP to kenclokembb@gmail.com

This event is sponsored by MBB founding members Nan Waller Burnett, Ken Cloke, Dorit
Cypis, Joan Goldsmith, Woody and Jody Mosten, Susan Mullins, Anna Spain, Ron Supancic,
and the Los Angeles Chapter of Mediators Beyond Borders.

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In Hijacked on the High Seas When Somali Pirates Attacked, They Kicked Off 56 Days of Drama Over the Fate of a Ship and 28 Crewmen, The Wall Street Journal details the negotiation strategy and tactics that resulted in the release of the hijacked ship and its crew.

(pirate photo from the cat dirl sez blog)

Excerpt below - "Mr. Christodoulou," the shipping company's negotiator, called himself "Gus."

Mr. Christodoulou made an initial offer, which he declines to reveal. The Somali negotiators -- first a man named Hussein, then another who called himself Abbas -- took the offer to the pirates. They called back the next day with a response.

"Hey Mr. Gus, the Somali gentlemen say the money is very less," Abbas said, according to Mr. Christodoulou. "They need more money."

Mr. Christodoulou didn't budge. The Somalis needed to feel they had squeezed every dollar out of the ship's owners, he had been advised, so he shouldn't increase his offer early.

"We want you to get the money and move onto another project," Mr. Christodoulou recalls saying. "But you have to understand, we have our limitations."

The conversations continued daily through December, with little progress. By the end of the month, the families in India were feeling desperate...

Tom Rozycki, Mr. Christodoulou's public-relations adviser, says he decided a new approach was needed to keep the families hopeful -- and away from the media. Publicity could empower the captors and delay the hostages' release, he believed. It would also be embarrassing for the company, making it even more difficult to face the families.

On Jan. 6, at the Hyatt Regency Hotel near Mumbai's international airport, Mr. Christodoulou met with the families of the crewmen.

Seeing Mr. Sharma's hunger-striking grandmother in the front row, he knelt beside her and held her hand. "Granny, your grandson is going to get out. And we want him to get out and come back to the healthy loving family that he left," he said, according to Mrs. Sharma and Mr. Christodoulou. That night, Mrs. Sharma ate some strawberry ice cream, her son recalls.

By mid-January, the pirates on the Biscaglia were growing frustrated. "They told us they were going to take us off the ship and hide us in the mountains," Mr. Khan, the crewman, says. The pirates gave him and the others a mobile phone to call home. "We all told our families that unless the company gave more money, we would be killed," Mr. Khan says.

Mr. Kapade, the chief engineer, says he realized the pirates were trying to pressure the company by terrifying the crew. When he spoke to his wife on Jan. 14, he lowered his voice and spoke in Hindi. "Pass on to others that we're fine," he whispered.

By then, Mr. Christodoulou says, he thought it was time to raise his offer. He declines to say what he offered, but says it was close to what he thought the Somalis would accept based on the range provided to him by experts: $700,000 to $3 million.

He set about trying to raise the money. He approached his own company's biggest investor, Regent Private Capital LLC, a private-equity firm based in Tulsa, Okla. Lawrence Field, Regent Private Capital's managing director, declined to discuss the conversation with Mr. Christodoulou. "Regent does not negotiate with terrorists or pirates or any kind of criminal," he said on Friday.

That evening, Mr. Christodoulou called Per Gullestrup, the Danish chief executive officer of Clipper A/S, a larger competitor in the chemical-transport industry. The two men hadn't known one another until both had vessels hijacked by Somalis. They had often commiserated.

Mr. Christodoulou told Mr. Gullestrup he was struggling to raise the funds. A few days later, Mr. Gullestrup called back. "We'd be happy to advance the money if that's what it takes," he said. That promise allowed Mr. Christodoulou to secure a loan for the purpose.

Buoyed by that success, Mr. Christodoulou decided to apply some pressure. He raised his offer slightly, he says, and told the negotiator: "You have 24 hours to accept this offer, or we have to retract it."

Over the next 24 hours, the two sides exchanged at least 20 phone calls. "Mr. Gus, this isn't enough money for the Somali gentlemen," the negotiator said several times, according to Mr. Christodoulou.

The next day, Mr. Christodoulou went a little higher, he says. At 12:30 p.m. on Jan. 16, Abbas called back: "The Somalis accept your offer. Thank you very much. It's really been a pleasure to work with you on this project."

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I've directed my readers to Adir Waldman's fine book Arbitrating Armed Conflict before.  Now that there is pitched battle in the Middle East with significant civilian casualties, I once again recommend Adir's book to anyone who wishes to look beyond taking sides. 

The following summary is from Juris Publishing where the book remains available for purchase. 

In Arbitrating Armed Conflict Adir Waldman examines a previously unstudied, yet critically important, experiment in international law.

In April of 1996, Israel and Lebanon reached an extraordinary written Agreement: armed conflict between the Israel Defense Forces and the Lebanese terrorist militia Hesbollah would continue, but both forces would be bound to an explicitly agreed upon set of rules intended to protect civilians.

To support this unique international pact, the parties established an equally unique arbitral institution—the Israel-Lebanon Monitoring Group—to hear and resolve complaints regarding breaches of the Agreement.

Through a series of confidential interviews with highly informed participants, Mr. Waldman casts the first light on this exceptional system of international and military law. In addition, this volume presents a complete collection of decisions rendered by the Israel-Lebanon Monitoring Group, a true gold mine of previously unpublished material, as well as a highly confidential internal memorandum obtained by the author. In a day and age of seemingly unbounded conflict, the lessons of this system, with both its pitfalls and its virtues, will prove crucial, and this book an indispensable guidebook to that system.

Accessible to the lay reader, this book is sure to be of interest to a wide audience — scholars, practitioners of international and military law, students of political science and foreign relations, observers of the Middle East and the wider public in general.

Now more than ever the international community should consider potential solutions to the Orwellian term "collateral damage" as a product of  inevitable border wars, solutions that will, at a minimum, make an effort to protect the innocent.

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Must read:  Embracing Conflict's analysis of Dueling Banjoes in Deliverance written by  Niel Denny, a Collaborative family solicitor working in the South West of England who is a member of my twitter network here: @nieldenny.

Excerpt and video below but a reading of the entire post is a must for anyone looking for reasons to believe that we can reach one another across political, cultural, religious, social and economic divides.

The music develops by a process of answer and call. One of them plays a riff, or a short section of music, which is then followed by the other. They react to one another responding to and developing upon the riff they have just heard. By doing so they produce this amazing music in a memorable scene that is part of cinema folklore.

It represents a rare moment of optimism in what is an otherwise unbearably dark, oppressive film.

In the process of exchanging these riffs the protagonists are effectively collaborating. They are communicating. We can see their riffs as an analogy for talking. The riffs work where the spoken word does not. Drew and the Banjo boy clearly develop and enjoy a relationship while they are playing.

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Excerpts from Kullar v. Foot Locker Retail, Inc. below.  Comment will follow.

[T]he fact that the settlement was reached during mediation to which Evidence Code section 1119 applies does not eliminate the court’s obligation to evaluate the terms of the settlement and to ensure that they are fair, adequate and reasonable. If some relevant information is subject to a privilege that the court must respect, other data must be provided that will enable the court to make an independent assessment of the adequacy of the settlement terms.

[T]he fact that communications were made during the mediation and writings prepared for use in the mediation that are inadmissible and not subject to compulsory production does not mean that the underlying data, not otherwise privileged, is also immune from production. (Evid. Code, § 1120 [“Evidence otherwise admissible or subject to discovery outside of a mediation . . . shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation . . .]; Rojas v. Superior Court (2004) 33 Cal.4th 407, 417; Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 157-158.)

Foot Locker’s payroll records, for example, if relevant to the quantification of the claims being settled, are subject to discovery and may be introduced in opposition to the settlement even if they were disclosed to class counsel during the mediation, and even if class counsel was shown only a summary or analysis of those records that is not itself subject to production because prepared for use in the mediation.

                           *                           *                      *

Following the opportunity for limited discovery, the trial court should redetermine whether the proposed settlement is fair, adequate and reasonable. The court may and undoubtedly should continue to place reliance on the competence and integrity of counsel, the involvement of a qualified mediator, and the paucity of objectors to the settlement. But the court must also receive and consider enough information about the nature and magnitude of the claims being settled, as well as the impediments to recovery, to make an independent assessment of the reasonableness of the terms to which the parties have agreed.

We do not suggest that the court should attempt to decide the merits of the case or to substitute its evaluation of the most appropriate settlement for that of the attorneys. However, as the court does when it approves a settlement as in good faith under Code of Civil Procedure section 877.6, the court must at least satisfy itself that the class settlement is within the “ballpark” of reasonableness. (See Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499-500.)

While the court is not to try the case, it is “ ‘called upon to consider and weigh the nature of the claim, the possible defenses, the situation of the parties, and the exercise of business judgment in determining whether the proposed settlement is reasonable.’ ” (City of Detroit v. Grinnell Corp., supra, 495 F.2d at p. 462, italics added.) This the court cannot do if it is not provided with basic information about the nature and magnitude of the claims in question and the basis for concluding that the consideration being paid for the release of those claims represents a reasonable compromise.

By remanding we do not suggest that the proposed settlement ultimately may not pass muster. We hold only that the trial court may not finally approve the settlement agreement until provided with sufficient information to assure itself that the terms of the agreement are indeed fair, adequate and reasonable.

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UPDATE:  Courtesy of Blawg Review #184 over at The Faculty Lounge is a link to the Voter Suppression Wiki Home Page.

CNN was reporting yesterday that in early voting the elderly gave up waiting to vote because they couldn't stand in line for 3+ hours.

Let's do what our mothers taught us to do when we were young:  stand up and give our seat to our elders!

Other suggestions for Tuesday:

• bring water, food to distribute to those in need on election lines
• bring as many folding chairs as you can carry for those in need
• engage the line by suggesting that it be organized according to need:
  • frail/eldery
  • those who MUST get to work
  • those with children or sick relatives at home
  • anyone else with a special need to vote quickly
• if the weather's bad, bring extra umbrellas; rain ponchos
• offer to drive people who cannot drive or walk to the polls
• knock on doors in your neighborhood, making sure that everyone who wants to vote:
  • knows where their polling place is
  • is able to get to their polling place
• for anyone who "can't leave home" for any reason (caretakers, primarily) offer to spell that person by "sitting" for them while they go to vote

If you have other suggestions to help our friends and neighbors participate in the democratic process that makes our nation great and guarantees our freedom to negotiate, please leave comments here!

I just learned the new issue of The Complete Lawyer is up!  Read co-columnist Diane Levin's

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There's nothing like getting a new Harpers in the mail to upset my idealistic dreams of a new America flourishing under an Obama administration.  Here's the opening November '08 Harpers slap-in-the-face for dreamy liberals like me:

After eight years of catastrophic Republican misrule—in the midst of economic crisis and rising unemployment, in a nation plagued by ruinous energy costs and inflation, bank failures, and staggering public and private corruption—an eloquent, charismatic, intelligent Democratic candidate was locked in a statistical tie with a doddering old hack whose primary argument for his claim to the most powerful office on earth is that he was shot down over Vietnam and tortured for five years. Indeed, this remained the case even after McCain demonstrated beyond all doubt, in his impetuous selection of a ludicrously unsuitable vice- presidential candidate, that he lacked the good judgment that is the primary qualification for the job. If the Democratic Party loses this election, then it should forever concede the presidency.

Ouch!  I read this magazine for the same reason I watch Fox News.  To upset my own comfortable ideologies.  That's the trouble with us liberals -- we're always fretting about being fair, when, according to Harper's Roger Hodge we're just a big bunch of conflict-avoidant pussies.  

Conflict in politics is not a metaphor, and as with any fight, the audience is likely to get involved. That is the essence of politics. A campaign that decides in advance that voters are tired of negative campaigning, that they are sick of partisan attacks and will respond only to positive messages, has stupidly left the field of battle. The people who truly dislike political combat are presumably among the 95 million who do not vote. Senator Barack Obama, a sophisticated and intelligent man with sophisticated and intelligent advisers, promises to change Washington, to eliminate the tone of partisan rancor, to foster a new spirit of brotherhood and cooperation. Poor lamb, he wishes to lie down with lions. But the Kingdom has not come.

The answer? 

Attack!!

Unfortunately, the sovereign voter can do little, on his own, to remedy the situation, especially if he happens not to live in Florida or Ohio. Yes, he can make a campaign contribution, a slightly more effective form of voting, but unless the Obama campaign decides to wage a more creative and destructive war, casting monetary ballots remains an empty gesture. (Of course one can also join the battle personally, perhaps by repeating the rumors about John McCain’s Alz heimer’s meds or the Sarah Palin sex tape.) Ultimately, we return to the problem of political will, to the Democratic Party, to the commitment of its party bosses to prevail, finally, in this election.

We can hope for change, that the Republicans will make some fatal error, or that Obama’s party will fight hard enough to persuade a decisive number of “low information” voters that John McCain is not only a liar but a menace to our children’s future. Recent precedents, however, are not encouraging. The Republican Party lied its way through eight years of criminal misrule while Democrats mostly just cowered in a back room. Now, faced with a clumsy deception about whether Sarah Palin sought an earmark for a small town in Alaska, Obama exclaims, “Come on! I mean, words mean something, you can’t just make stuff up.” Oh, yes, Barack, we can.

In the same issue that suggests we dirty our hands by calling John McCain a liar and the Bush administration's "misrule" criminal, we read that Obama is a detached blank screen upon which voters can project any quality they like (or dislike) because . . . well . . . his mother was lonely and so is he:

Obama wants to believe in the common good as a way of providing a fullness to experience that avoids the slide into nihilism. But sometimes I don’tknow if he knows what belief is and what it would be to hold such a belief. It all seems so distant and opaque. The persistent presence of the mother’s dilemma—the sense of loneliness,doubt, and abandonment—seems palpable and ineliminable. We must believe, but we can’t believe. Perhaps this is the tragedy that some of us see in Obama: a change we can believe in and the crushing realization that nothing will change.

See The American Void by Simon Critchley

This is usually the point at which my own McCain-supporting mother breaks in with "honey, you know, you can think too much."  And after years, decades really, of finding this refrain irritating, I finally agree with her about the thinking part if not about her taste in Presidential candidates.

Like the Obama caricatured in this month's Harpers as an ineffective dreamer as intent on replacing his deceased mother's lack of faith with liberal-Christian-do-gooding as Oliver Stone suggests "W" was intent on finally pleasing Daddy, I simply choose to have faith in the stated values of the Democratic party.  I continue to believe that over time, we can do better as a nation through consensus and problem-solving, collaboration and compromise, than we can by adopting the tactics of the world's strong-arm leaders and disciples of discord. 

The Good News

Assuming that the guy I think Obama is -- highly educated, articulate, and idealistically dedicated to serving the common welfare -- actually exist on the political scene (and I will not give up this faith any more readily that others would renounce their own religions) I believe them to be riding the bow-wave of transformation.  I have staked my professional life on this faith in my fellows' ability to work toward the common good, abandoning the extremely lucrative practice of legal battle in exchange for the far less financially rewarding practice of collaborative negotiated conflict resolution. 

Who are the real cowards here and who the heroes?  People who refuse to negotiate face-to-face "without pre-condition" ("we won't discuss settlement unless they're willing to put $10 million on the table first") and without the protection of several layers of legal counsel?  Or those who are willing to test the rectitude of their "position" by sitting across a table with their opponent to frankly discuss their mutual role in whatever commercial or personal catastrophe flowed from the intersection at which their (mis)fortunes collided? 

The social psychologists tell us that we live on the razor's edge of individual survival (me, me, me, me, me) and the collective good.  It is our great challenge as a species to live that which we cannot refuse to understand -- "we" cannot drill a hole in "their" side of the boat without sinking all of us.

So I will continue to brave reading Harpers (which discourages me) and risk the challenge to my world view of Fox News commentary (which so often enrages me) on the off-chance that my religion -- tolerance; compassion; collective effort; empathy and the like, has more staying power than the religion of hate; discord; and, denial. 

And I will also continue to believe that none of us could ever possibly be right.  

Only that we could potentially be happy.

Ending on a positive gaping void note with Hugh McLeod's greatest to date contribution to humanity:  How to Be Creative.  You can catch him on Twitter here.

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Bertolt Brecht wrote, "what times are these/when a poem about trees is almost a crime/because it contains silence/against so many outrages."

The same can be said for a post about negotiation strategy and tactics.

My friend and colleague, mediator and AAA arbitrator Deborah Rothman just returned from a very short vacation to Paris and the view from Europe is one of fear and growing alarm about the manner in which our political process has degenerated into hate-filled cries from the crowds at Republican rallies (see Rage Rising on the McCain Campaign Trail).

A waiter at a small bistro near the Champs-Élysées confided his fear that the  "nuclear code" could fall into the hands of a short-tempered or vindictive occupant of the Oval Office, a concern that I admit had been absent from my own consciousness before that moment.  Other Europeans with whom we spoke were mystified that more Americans did not exercise the right to vote, particularly in an election as important to the future of the world economy as this one is.

I returned from Europe more worried more about unruly mobs fueled by anger and fear than about the "smears" on Obama (against which you can take action here if you're so inclined - Truth Fights Back).

If the 20th Century taught us anything, it is this: we are all capable of genocide, and its lesser form, hate crime.

The Holocaust of European Jews

The Armenian Genocide

Lynching in the United States

Ethiopia's Genocide of the Anuak (21st century)

The Genocide of Native Americans in the United States (17th-19th Century)

The Cambodian Genocide

The Rawandan Genocide

The My Lai Massacre (Viet Nam War)

Bosnia-Herzegovina "Ethnic Cleansing"

The "Arab"/"African" Violence in Darfur

. . . . too many more to catalogue

WE ARE ALL CAPABLE

The Stanley Milgram Experiments (response to authority)

The Stanford Prison Experiment ("guards" abusing "prisoners")

RESOURCES

See The War Against Despair is Up to You New Media at Awaken Your Superhero thanks to Susan Carter Liebel on Twitter here.

(right:  my own blurry iPhone St. Chapelle photo where we heard a string sextet play Bach, Vivaldi and Mozart  this past week - sublime) 

Theodore Roosevelt on Mob Violence, Campaign Speech and the Rule of Law (9/28/1900 NYTimes report of "Governor" Roosevelt's response to mob violence in Roosevelt-Bryan campaign)

Tips on Avoiding Inflammatory Language from beyondintractability.org

Convention on the Prevention and Punishment of the Crime of Genocide here

Genocide Prevention Task Force (U.S. Institute of Peace)

United Nations Action Plan to Prevent Genocide

Genocide Prevention (U.K.)

Hate Crime Prevention Tips

The Nature of Hate (.pdf excerpt here) or buy the book here

Constructive responses to extremism from beyondIntractability.org

Mediating Evil, War and Terrorism:  The Politics of Conflict (by Ken Cloke)

Conflict Revolution by Ken Cloke and my review here

Constructive responses to terrorism from beyondintractability.org

Hate Crimes Research Network

PLEASE ADD YOUR OWN RESOURCES

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Sending this in complete from Paris, noting that women, who hold civil society together in the course of armed conflict, are rarely at the table when peace is being negotiated.  As this lengthy piece asserts, we cannot ignore the sexual assaults that continue after "peace" has been achieved.  I've been told by the evolutionary biology squad that the "flight/fight" mechanism in the face of terror trends toward freezing in women because a woman who freezes in the course of attack is more likely to survive to protect her existing off-spring and give birth to more children.  She will be raped. Not killed.  This piece reminds me that when men resort to savagery, women are savaged.  Thanks to Dorit Cypis for passing this along to Ken Cloke for passing it along to me.

Peace is a mere illusion when rape continues
Stephen Lewis (2008-09-10)
http://www.pambazuka.org/en/category/comment/50445

Here is an unassailable truth: if sexual violence is not addressed during the course of a conflict, then sexual violence will haunt the post-conflict period, and make of the ostensible peace a mockery for half the population.

Three days ago, I returned from Liberia . While in the country, I met with President Ellen Johnson-Sirleaf, with senior officials of the Ministry of Health, with the Minister of Gender, with the leadership of the Clinton Foundation, with the consultant who drafted the legislation for the special court to try sexual offences, with the UNICEF Representative and significant numbers of the UNICEF staff. Unfortunately, I did not have the opportunity to meet with UNMIL, but the UN Mission in Liberia and its peacekeeping forces were inevitably a part of every conversation.

She was speaking about the contagion of sexual violence that currently engulfs the country and causes such intense concern. The statistics are horrifying: a recent study by UNICEF indicated that more than fifty per cent of all reported rapes are brutal assaults on young girls between the ages of ten and fourteen. The gender advisor in UNICEF felt that the percentage was probably on the rise, and it’s feared that increases in the HIV rates among female youth will not be far behind. The Minister of Gender showed me figures for March, 2008, indicating that the majority of reported rapes in that month were committed against girls under the age of twelve, some under the age of five, and she narrated stories of gang rape so insensate and so depraved that it reminded me of exhibits in a Holocaust museum. A further survey, of all fifteen counties in the country, found that girls and boys were united in their conviction that young girls were the most endangered group in Liberia, and incredibly enough, that there was no place and no time of day or night where adolescent girls could be considered safe.

The context of my discussions is encapsulated in the words of the Deputy UN Envoy for the Rule of Law in Liberia when she said, as recently as May 20th: We cannot expect the future leaders of Liberia, the doctors, nurses, and engineers of Liberia to be brought up amongst men who are rapists and women who are angry, degraded, frightened, depressed, embarrassed and confused.
Predictably, President Johnson-Sirleaf is thunderstruck by the force of the sexual violence. In a very real sense she is staking the integrity of her tenure on her ability to confront and subdue the war on women.

But how did it come to this? UNMIL has been in the country since 2003 it has a large contingent of women peacekeepers: it has an Office of the Gender Advisor and of the Advisor on HIV/AIDS; it has gender mainstreaming built into the mandate; both the UN Envoy and the Deputy UN Envoy are women; and the resolution of 2003 which constituted UNMIL incorporated Security Council Resolution 1325 which --- you will agree --- was supposed to guarantee the involvement of women in the peace-keeping processes, but more important, guarantee women protection and security from gender-based violence and violations of human rights. Clearly all that hasn’t worked in Liberia , where things for women and girls are getting worse. Where did we go wrong?

My own view, and the view of the organization to which I belong --- AIDS-Free World --- is that peacekeepers and force commanders alike have to take sexual violence much more seriously. It is simply untenable to argue that the responsibility to keep the warring parties at bay transcends every other human imperative. It doesn’t. You may succeed in manufacturing a semblance of peace, but for the women of the country, the conflict continues in the most painful and eviscerating of ways.

In the case of Liberia , it isn’t a matter of a contentious mandate: as I said, Resolution 1325 is built into the obligations of peacekeeping. Anyone would argue that when a peacekeeper in the field knows of acts of sexual violence having been committed, or has reason to believe that acts of sexual violence have been or will be committed, then he or she has the obligation to intervene or, to use the language of the day, the responsibility to protect. But let me be even clearer about this. Peacekeepers aren’t mere passive observers of the human family. Peacekeepers move into a country; they learn its social architecture; they watch the roiling political terrain on a day-to-day basis. They come to know the foibles, to know the extremes, to know the anomalies. More often than not, they can tell when trouble is brewing. They can intuit when men might hurtle out of control. They have the pulse of the culture. When it unravels, they’re there to bear witness. I’m saying that when patterns of sexual violence emerge, peacekeepers are rarely surprised. In some cases, they alone have anticipated the atrocities in the offing. And with that knowledge comes obligation. With that insight comes responsibility. It isn’t enough to stop the shooting when the raping continues apace. The only worthwhile armistice restores peace for the entire population, male and female. There can be no satisfaction in claiming a truce or a peace treaty which is soaked in the carnage of the women of the land.

Conventional wisdom says that it is the Security Councils job to set policy, and the peacekeepers job to follow it. But that’s too easy. The Department of Peacekeeping Operations, and its military contingents in-country, should be hollering from the rooftops whenever they feel that their role is somehow constrained. If you need more troops, ask for them. If you need more training, ask for it. If you require a larger contingent of police officers, insist on it. If, in the field, you see sexual mayhem in place, then after intervening, take the names of individual soldiers and witnesses and seek investigation and indictments from the International Criminal Court. If the UN’s Member States wont comply, then call a press conference and tell the world that women are being sacrificed on the altar of myopic parsimony, or perhaps more accurately, on the altar of Pavlovian sexism.

There is nothing facetious in this; I’m absolutely serious. The United Nations cannot allow the terrible assault on women to continue, while crouching behind the ambiguity of mandate. That, I remind you, is what the Department of Peacekeeping Operations did between January and April of 1994, in the perverse struggle with UN Force Commander General Romeo Dallaire over rules of engagement. And there followed the deaths of eight hundred thousand Rwandans and the start of the war in the Congo .

In the DR Congo, it is now estimated that 5.4 million people have died since the end of the Rwandan genocide. That conflict was finally supposed to have been resolved by a peace engagement of January last. To some extent, the battles stopped. But as always, just as in Liberia , the war never ends for women. In the case of DR Congo, the role of peacekeepers could not be clearer. The words of the Security Council resolution of December 21st, 2007, extending the mandate of the UN Mission in the Congo, MONUC, were absolutely unequivocal: Paragraph 18 Requests MONUC, in view of the scale and severity of sexual violence committed especially by armed elements in the Democratic Republic of the Congo, to undertake a thorough review of its efforts to prevent and respond to sexual violence, and to pursue a mission-wide strategy, in close cooperation with the United Nations Country Team and other partners, to strengthen prevention, protection, and response to sexual violence, including through training of Congolese security forces in accordance with its mandate, and to regularly report, including in a separate annex if necessary, on actions taken in this regard, including factual data and trend analyses of the problem . That sounds very much to me as though the Security Council knew full well that things were off the rails where sexual violence was concerned, and this was an explicit instruction to MONUC to get its act together. In that regard, it’s significant that the Security Council went even further: the final clause of the resolution requires the Secretary-General himself to report on the issues covered in Paragraph 18.

To be sure, I can’t pretend to know exactly what lay in the minds of the Security Council members, but these things I do know: Dr. Denis Mukwege, who heads the Panzi Hospital for survivors of rape and sexual violence in the Eastern city of Bukavu, told me when we met in New Orleans three weeks ago, that although the steady flow of raped women has slowed somewhat since the January accord, it continues in shocking numbers; the UNICEF staff in the field agree that things are still in the realm of nightmare for women, who live lives haunted by the fear of being violated, tortured, mutilated, infected with HIV. And who expected anything different, when the countless women who have suffered such demonic sexual violence were not sitting at the peace table last January, and were not signatories to the agreement a direct violation of Resolution 1325? Who can claim to be surprised by reports from Congolese NGOs on the ground, who say that in the country’s so-called peacekeeping period, women are still too frightened to leave their homes?

When Under Secretary-General John Holmes said the Congo was the worst place in the world for women, he was right. When Eve Ensler, the noted author of the Vagina Monologues wrote of the Congo that she had just returned from hell, she was right. When my co-Director of AIDS-Free World, Paula Donovan, visited in November, and observed that the war being waged against women may well be the most savage display of misogyny ever orchestrated in a conflict zone, she was right.

Terrible, unspeakable things have been done to the women of DR Congo. I want simply to argue that MONUC has it within its mandate to end the reign of terror. If it so chooses, MONUC can also have it within its power to end the reign of terror. Whatever MONUC feels it lacks to protect the women of the Congo --- numbers, police, equipment, training, time, leadership, resources --- let them demand it. And if those demands aren’t met, let them tell the world that madness is at work and it knows no end.

Normally, one would turn to the Secretary-General of the United Nations for help in this difficult situation. But how can we have trust?

The Secretary-General gets commendably engaged when it comes to Burma or the price of food, but where is the same sense of throbbing agitation when it comes to sexual violence? This is a Secretary-General who should be insisting on the invocation of the Responsibility to Protect in the Congo , but fails to do so. The defense and protection of the rights of women do not come instinctively to him. This is, after all, a Secretary-General who granted immunity to the former High Commissioner for Refugees, when a claim of sexual harassment against him reached a New York court. I remember that when the Secretary-General was first appointed, he told a group of NGOs that his learning curve on gender was virtually vertical. A year and a half later, the upward climb appears to have stalled at the bottom of the graph.

No, if we are to turn things around, with or without the help of the Secretary-General, the peacekeepers must lie at the heart of the transformation. How excellent that would be. Resolution 1325 would finally be liberated from the dustbins of the Security Council, and women, without fear, could take hold of their collective destiny. You can be sure there would be no vacillation. If all the peacekeepers were women, and the men of a country were under pervasive sexual assault, do you think the women would simply observe the carnage? Not a chance. And they wouldn’t need a Security Council Resolution to tell them what to do.

* These remarks were delivered at the Wilton Park Conference: Women targeted or affected by armed conflict: What role for military peacekeepers? in May 27, 2008.

* Stephen Lewis, is the co-Director of AIDS-Free World (www.aids-freeworld.org).

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If you believe that law blogging is not only informative and entertaining, but capable of transforming our lives, our society, our culture and our legal system as well, run don't walk over to Peter Black's Freedom to Differ which not only rocks, it twitters, on One Web Day.  Surely this will be the BlawgReview of the year!

. . . .one recurring theme on this blog has always been a recognition of the value in a strong and free internet.  Therefore it is an honour to be able to host Blawg Review on Monday September 22, 2008, which is One Web Day 2008.  One Web Day was founded three years ago by Professor Susan Crawford from the University of Michigan, and she describes it as an "Earth Day for the internet".  The One Web Day website describes the day in the following terms:

The idea behind OneWebDay is to focus attention on a key internet value (this year, online participation in democracy), focus attention on local internet concerns (connectivity, censorship, individual skills), and create a global constituency that cares about protecting and defending the internet.  So, think of OneWebDay as an environmental movement for the Internet ecosystem. It’s a platform for people to educate and activate others about issues that are important for the Internet’s future.

If you'd like to host BlawgReview or submit to it, click here.  All future BlawgReview hosts please note -- THE BAR HAS BEEN RAISED!

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Let's be clear about one thing.  Mediators are not human Switzerlands. 

We have opinions, often strong ones, about issues like the rule of law in America, negotiated resolutions to intractable conflicts, the proper role of force against another sovereign nation and whether torture is a tool Americans ought to be using in the name of national security.  

Because we mediators spend so much time listening to litigants' competing stories of right and wrong, I don't think I'm going out on a limb to say that we "get" the great gray expanses that separate fear from understanding, anger from compassion and "the truth" from one's subjective experience of it.

What motivated this post was a recent challenge to a mediator's "right" to express his political beliefs in a mediation forum.  "You're supposed to be neutral," said the challenger.  "It's wrong and unprofessional to express your political beliefs here."

As the Presidential election nears, I want to clarify my own views on mediation neutrality, particularly my belief that we mediators do and should leave our neutrality when we close the mediation room door. Neither I, nor this blog, is "neutral" about the upcoming election.  I am actively campaigning to elect Barack Obama because I believe he is best suited to withdraw our troops from Iraq, reconcile ourselves with the world community, respond to conflict as a negotiator rather than as a conquerer would, and restore the damage done by the Bush administration to the rule of law in America.  If I cannot say this because I am fearful of offending some of my readers or concerned that some potential clients will choose not to use my services, I would count myself unworthy of the freedoms fought for by those who came before us.    

What it Means to Be an ADR "Neutral"   

Though there is disagreement among scholars about the precise nature of "mediation neutrality," a recent article on the subject at BeyondIntractability.com expresses my own view.  That article quotes negotiation gurus Kevin Gibson, Leigh Thompson, and Max Bazerman on the three distinct types of neutrality that mediators can and do practice.    

• Neutrality as impartiality, which holds that the mediator should be free of bias and should set aside his or her opinions, feelings, and agendas;

• Neutrality as equidistance, which focuses on the idea that mediators should try to give equal consideration to each side; and, 

• Neutrality as a practice in discourse.

These theorists believe, as do I, that it is part of a mediator's job to assist the parties in framing the problems and to lend guidance in expressing their tales of injustice to one another.   The mediator, say these scholars,  

gives each side a chance to talk about their positions and concerns, and then reframes these issues in a more neutral way so that parties are more likely to listen to and understand the other side's viewpoint[, t]hne helps the parties . . . explore settlement options and to move toward a solution that all can agree on.

Neutrality from this viewpoint "means that the mediator who facilitates this discussion should not have an interest in advancing the goals and positions of any party involved." 

Leaving One's Neutrality at the Mediation Room Door 

To help people resolve conflict requires a mediator to develop certain ways of listening; particular ways of communicating; and, specific ways of thinking about the malleability of "objective reality" in our subjectively experienced lives.  The practice of mediation is also revelatory of the raw power of people's affiliative desires -- their persistent urge to reconcile differences and settle accounts.  

When I leave the mediation room, I remain a mediator in spirit -- one who has seen the value of negotiated resolutions over the useof brute force and the power of collaboration over deference to an authoritarian decision-maker. 

I cannot express my preference for  Barack Obama any better than my friend and mentor Ken Cloke did in the electronic pages of mediate.com this spring.  As he concluded,

[c]apable international diplomacy requires open and committed listening, informal problem solving, prejudice reduction, collaborative negotiation, public dialogue, mediation, arbitration, ombudsmen’s offices, conflict resolution initiatives, and a panoply of proactive, adequately-funded resources that can be brought to bear on any problem. Positive examples can be found in every successful mediation and collaborative negotiation. Ideally, peace-making should receive the lion’s share of our national budget, allowing us to train every diplomat, and international representative in the most advanced mediation skills, include mediation in every treaty, and form an international corps of conflict resolvers, capable of building conflict resolution capacity globally, including in the US.

As mediators, we need to recognize that we also are global citizens, and responsible by virtue of our knowledge and experience for helping to save the planet. We need to weigh in on the important issues of the day that directly touch on our expertise, including not just who we negotiate with, but how we negotiate and why. Without it, Obama and the perspective he represents may succumb to those who think patriotism requires war and the slaughter of innocents. The time to speak up is now.

In electing a new President to lead us into a productive future, I believe, as do many of my mediator friends and colleagues, that Barack Obama is the clear choice.  If our political future is important to us, we will not hesitate to publicly lend him our support.

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Everyone who's interested in the state of the union and its internaional relationships should be glued to the Democratic National Convention tonight and the Republican National Convention next week.

They are negotiating the nation's future.

Let's listen to the speakers with a critical mind and an open heart.  To help us listen with a critical mind, I'm linking my readers to the Owl at Purdue on Persuasive Argumentation. 

The Barack campaign has been built on narrative or, as the Owl teaches us, pathos, a word that has come to mean sentimental but simply means appealing "to an audience's needs, values and emotional sensibilities." 

As the Owl Instructs, 

[e]motional appeals can use sources such as interviews and individual stories to paint a more legitimate and moving picture of reality or illuminate the truth. For example, telling the story of a single child who has been abused may make for a more persuasive argument than simply the number of children abused each year because it would give a human face to the numbers. Only use an emotional appeal if it truly supports the claim you are making, not as a way to distract from the real issues of debate. An argument should never use emotion to misrepresent the topic or frighten people.

Michele Obama is speaking now, telling the story of her childhood; her parents' values and Barack's political journey.  It's good. 

"Isn't that the great American story?" she asks half way through her speech. 

Pathos.

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In honor of which, I'm excerpting and directing you to mediator Ken Cloke's article Thoughts on Mediation, Barack Obama and Our Political Future.

[T]ere are four fundamental issues underlying this Presidential campaign, though they are somewhat broader in scope than what the candidates and pundits have been discussing:

1. What will the future relationship be between the United States and the rest of the world in addressing global problems, from global warming and environmental devastation to war, hunger, and disease?

2. Will it be possible for us to significantly reduce the worst forms of prejudice, based on race, gender, sexual orientation, and national origin?

3. Will it be possible to shift our economic priorities from maximizing corporate profitability to universal health care, debt relief, and taking care of people?

4. Can we shift the political process away from character assassination, domination of campaign financing by the wealthy, dirty tricks, and the posturing, greed, ambition, and dishonesty that undermine its democratic purposes?

What do these issues have to do with conflict resolution? My view, [elaborated in my new book, Conflict Revolution: Mediating Evil, War, Injustice and Terrorism – How Mediators Can Help Save the Planet (Janis Publications, 2008)], is that these issues reveal an underlying source of chronic conflict that not only impacts each of us as individuals, but is perpetuated by social, economic and political systems that form the invisible backdrop, context, and environment within which all of our conflicts take place.

The Meta-Sources of Chronic Conflict

Over the broad sweep of history, we can identify three over-arching “meta-sources” of chronic conflict. These, in my view, are social inequality, economic inequity, and political autocracy. To these we can add a fourth, which is the environment within which they occur, be it natural selection, organizational systems, or the political institutions that reinforce these chronic meta-sources of conflict and constrict our ability to resolve them.

These meta-sources of chronic conflict, in combination, generate a “culture” of conflict, which consists of the ways we think about, address, and resolve our conflicts. This allows us to combine the four issues outlined above, naturally giving rise to a fifth:

5. Will we be able to transform our culture of conflict from one that is destructive and adversarial to one that is creative and collaborative?

These are obviously questions of enormous importance. Why should we think that mediators could have an impact on how they are decided? As an illustration, consider a key element in the Obama campaign and one of the key questions for many voters – should the US negotiate with its enemies?

To read on, click here.

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Thanks to the Daily Kos for citing us to A Possible Mediation/Peace Proposal for Georgian Conflict from Mirror on America.

Here are the first four suggestions, click on the highlighted article for the full discussion.

Efforts Should Focus on the Following:

1. Establishing a ceasefire to allow for the treatment & evacuation of the wounded and to establish a safe humanitarian corridor for civilians to evacuate. Establish access for Red Cross & other NGO’s.

2. Get all military forces to pull back either completely or partially to establish a demilitarized buffer zone. Deweaponize the area. This will reduce the number of clashes.

3. Establish a more permanent ceasefire and begin negotiations on the long-term status of South Ossetia.

4. Make sure rebel groups stand down and are part of negotiations.

If you don't think armed conflict can be negotiated, check out Arbitrating Armed Conflict by Adir Waldman

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(image from Art Throb featuring the work of South African artist William Kentridge)

Just in case you're out on the beach, in the mountains, or spending a lazy July 4th week-end around your best friends' swimming pool, here are the ADR-worthy articles you've likely missed in today's Sunday New York Times.

From the Op-Ed page, Nicholas Kristof recommends an American "Truth Commission" for our treatment of "detainees."  Excerpt and link below:

When a distinguished American military commander accuses the United States of committing war crimes in its handling of detainees, you know that we need a new way forward. 

“There is no longer any doubt as to whether the current administration has committed war crimes,” Antonio Taguba, the retired major general who investigated abuses in Iraq, declares in a powerful new report on American torture from Physicians for Human Rights. “The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

The first step of accountability isn’t prosecutions. Rather, we need a national Truth Commission to lead a process of soul searching and national cleansing.

That was what South Africa did after apartheid, with its Truth and Reconciliation Commission, and it is what the United States did with the Kerner Commission on race and the 1980s commission that examined the internment of Japanese-Americans during World War II.

Today, we need a similar Truth Commission, with subpoena power, to investigate the abuses in the aftermath of 9/11.

We already know that the United States government has kept Nelson Mandela on a terrorism watch list and that the U.S. military taught interrogation techniques borrowed verbatim from records of Chinese methods used to break American prisoners in the Korean War — even though we knew that these torture techniques produced false confessions.

It’s a national disgrace that more than 100 inmates have died in American custody in Afghanistan, Iraq and Guantánamo. After two Afghan inmates were beaten to death by American soldiers, the American military investigator found that one of the men’s legs had been “pulpified.”

Read the rest of the column here, remembering that we're only as sick as our secrets.  For more on Truth Commissions, click here, here and here.

"We don't negotiate with terrorists or enemy states."  Really?  In Speaking with the Enemy, an NYT multi-media page gives a sampling of how modern American Presidents have made contact with our adversaries.

Here's the good news from the accompanying article, For Some Foes the Chat.  For Some the Cold Shoulder.

[T]he reality is that more times than not, American presidents sweep into office proclaiming black-and-white absolutes about their foes, and end up leaving office having used everything from secret talks and back-channel negotiations to full-fledged summit meetings.

Read the full article here.

While others surf and bar-b-que, I'm using the week-end to post the Summer 2008 issue of the r.kv.r.y. quarterly literary journal.  Here's the proof of the new cover!  A labor of love (and proof of my husband's enduring patience -- thanks honey! for putting up with my 10,000 projects). 

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I do hope you'll pick up Ken Cloke's new book Conflict Revolution.  Keep it on your night stand.  Dip into it when you feel angry, hopeless, and grief-stricken at a local, national, or international act of violence.  

Here's a little good news from Ken's book to cheer myself and my readers up after the last lengthy post on the Robert F. Kennedy assassination.  

It is possible, as has been demonstrated in Northern Ireland, for former combatants to recognize that nothing can be gained through military methods that is worth the cost; that their mutual slaughter has been a gigantic, tragic, absurd, pointless waste; and that they can reach out at any time to each other without glossing over their differences.

It is possible, even for the most battle-hardened opponents, to learn that there are no differences they cannot solve through dialogue, negotiation, and conflict resolution, or are worth the damage created by their assumptions of evil; that they can engage in open, honest, collaborative negotiations over ongoing issues of justice and equality; cooperate in strengthening their political, economic, and social democracies; develop interest-based conflict resolution skills; and elicit heartfelt communications that invite truth and reconciliation. To do so, they need to penetrate beneath the layer of moral rationalization they have erected to solidify and buttress these cycles of internecine conflict.

Remember Détente?  Take a Look at the June 2 NY Times "Backgrounder" on Negotiating with Hostile States.  Campaign rhetoric aside, all U.S. Presidents do it; the only questions being when and who and under what circumstances and how.  Excerpt below:  

Republican President Richard M. Nixon accelerated contacts with Soviet leaders in the early 1970s. Nixon and his national security adviser, Henry Kissinger, introduced a policy of détente that aimed to establish new linkages on issues ranging from arms control to improved trade terms. The goal was to lessen superpower tensions as well as induce positive changes in Soviet international behavior. Kissinger writes in his book Diplomacy that Nixon's advisers "saw no contradiction in treating the communist world as both adversary and collaborator: adversary in fundamental ideology and in the need to prevent communism from upsetting the global equilibrium; collaborator in keeping the ideological conflict from exploding into a nuclear war."

The new contacts bore fruit in the signing of the Strategic Arms Limitation Treaty (SALT I) in 1972 by Nixon and Soviet leader Leonid Brezhnev. But within a year, tensions related to the October 1973 Arab-Israeli War showed superpower competition remained vigorous, at one point prompting a heightened nuclear alert for U.S. forces. In 1974, congressional critics of détente, led by Democratic Sen. Henry M. Jackson, sidelined a U.S.-Soviet trade agreement with the Jackson-Vanik amendment, which linked trade to emigration of Soviet Jews. Writing in Foreign Affairs, historian John Lewis Gaddis called détente a "sophisticated and far-sighted strategy" that Nixon and Kissinger failed to put across to their "own bureaucracies, the Congress, or the public as a whole." Robert S. Litwak, director of international security studies at the Woodrow Wilson Center, writes in his book Rogue States and U.S. Foreign Policy that the détente policy was hampered by the "Soviet leadership's ability to compartmentalize relations and frustrate the Nixon administration's efforts to establish linkages."

Some Cold War analysts say more effective as a counterweight to Soviet ambitions was the Nixon administration's simultaneous diplomacy with China, which led to the formal establishment of a dialogue with the 1972 Shanghai Communique. While not posing the direct threat that the Soviet Union represented, Communist China was viewed as no less odious by critics of the Nixon negotiations due to its intervention on North Korea's side in the Korean War, and because of massive human rights abuses, especially in the 1966-1976 Cultural Revolution. Despite such concerns, Nixon saw value in ending China's isolation. He wrote in an October 1967 Foreign Affairs article: "We simply cannot afford to leave China forever outside the family of nations, there to nurture its fantasies, cherish its hates and threaten its neighbors."

In the years that followed, U.S. administrations held a number of adversarial states at arm's length, diplomatically. These states included Fidel Castro's Cuba, Vietnam, North Korea, Libya, Nicaragua, Syria, and Sudan. In some cases, like Vietnam, diplomatic ties have been fully restored. In others, such as North Korea, dialogue has resumed over the issue of the country's denuclearization. Relations with Iran were severed after the 1979 seizure of the U.S. embassy, and diplomatic contacts have occurred only sporadically since then. High-level contacts with Cuba remained a remote prospect in 2008 as an economic embargo continued over U.S. concern at political repression.

President Ronald Reagan took office signaling a tough posture toward the Soviet Union and an intention to stanch communist support for rebellions in Central America. But Reagan also stepped up negotiations on nuclear arms control and participated in summits with Soviet leader Mikhail Gorbachev, a practice continued by George H.W. Bush until the Soviet Union's collapse. In the 1990s, the Clinton administration pursued dialogue with Pyongyang and normalized relations with Vietnam, while seeking to contain and isolate Saddam Hussein's regime in Iraq, and Afghanistan's Taliban leadership.

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If you are of a certain age, you will vividly recall where you were forty years ago when you learned that the unthinkable had happend -- another Kennedy brother had been shot.

I was fifteen years old.   The insistent ring of the telephone broke into my sleep in the early morning hours of June 6, 1968.  It was my friend the [now] author and journalist Cathy Scott saying, "Kennedy's been shot."

"No he hasn't," I groggily responded.  "That was years ago."

"No, no," she insisted.  "That was John Kennedy.  This is Bobby.  Bobby's been shot."

Yesterday, the dreadful anniversary of Bobby Kennedy's death, I channel-surfed my way to the movie Bobby, depicting the world I was growing up in and in to.  I had only recently turned my political opinions away from my parents' -- opposing instead of supporting -- the Viet Nam War. 

McCarthy was my guy. 

I thought Bobby was late to the anti-war party. 

But what did I know?  I was passing notes to my friends in second year French class about boys and assassinations (Martin Luther King, Jr.'s).  Bhuddist monks were setting themselves aflame in public places. Race riots had only recently consumed the nation.  My friends and I were negotiating adolescence during the time when those things that were changing ("the times") continue to consume our nation's attention today -- the conflicting values of the "culture wars." 

The producers, director, writer and other creative forces behind "Bobby" chose to end their movie with the following speech -- On the Mindless Menace of Violence.  Hearing it play out over images of Kennedy's last moments on the floor of the kitchen in the old Los Angeles Ambassador Hotel, it was as if the forty years between the night I groggily rose from my bed to watch another Kennedy brother's last moments and yesterday when I heard these words again as if for the first time had collapsed.  

Bobby speaks here as plainly as he spoke to the nation then.  Are we still not listening?

On the Mindless Menace of Violence
http://www.youtube.com/watch?v=WmRTAa4-QNc&feature=related

City Club of Cleveland, Cleveland, Ohio
April 5, 1968

This is a time of shame and sorrow. It is not a day for politics. I have saved this one opportunity, my only event of today, to speak briefly to you about the mindless menace of violence in America which again stains our land and every one of our lives.

It is not the concern of any one race. The victims of the violence are black and white, rich and poor, young and old, famous and unknown. They are, most important of all, human beings whom other human beings loved and needed. No one - no matter where he lives or what he does - can be certain who will suffer from some senseless act of bloodshed. And yet it goes on and on and on in this country of ours.

Why? What has violence ever accomplished? What has it ever created? No martyr's cause has ever been stilled by an assassin's bullet.

No wrongs have ever been righted by riots and civil disorders. A sniper is only a coward, not a hero; and an uncontrolled, uncontrollable mob is only the voice of madness, not the voice of reason.

Whenever any American's life is taken by another American unnecessarily - whether it is done in the name of the law or in the defiance of the law, by one man or a gang, in cold blood or in passion, in an attack of violence or in response to violence - whenever we tear at the fabric of the life which another man has painfully and clumsily woven for himself and his children, the whole nation is degraded.

"Among free men," said Abraham Lincoln, "there can be no successful appeal from the ballot to the bullet; and those who take such appeal are sure to lose their cause and pay the costs."

Yet we seemingly tolerate a rising level of violence that ignores our common humanity and our claims to civilization alike. We calmly accept newspaper reports of civilian slaughter in far-off lands. We glorify killing on movie and television screens and call it entertainment. We make it easy for men of all shades of sanity to acquire whatever weapons and ammunition they desire.

Too often we honor swagger and bluster and wielders of force; too often we excuse those who are willing to build their own lives on the shattered dreams of others. Some Americans who preach non-violence abroad fail to practice it here at home. Some who accuse others of inciting riots have by their own conduct invited them.

Some look for scapegoats, others look for conspiracies, but this much is clear: violence breeds violence, repression brings retaliation, and only a cleansing of our whole society can remove this sickness from our soul.

For there is another kind of violence, slower but just as deadly destructive as the shot or the bomb in the night. This is the violence of institutions; indifference and inaction and slow decay. This is the violence that afflicts the poor, that poisons relations between men because their skin has different colors. This is the slow destruction of a child by hunger, and schools without books and homes without heat in the winter.

This is the breaking of a man's spirit by denying him the chance to stand as a father and as a man among other men. And this too afflicts us all.

I have not come here to propose a set of specific remedies nor is there a single set. For a broad and adequate outline we know what must be done. When you teach a man to hate and fear his brother, when you teach that he is a lesser man because of his color or his beliefs or the policies he pursues, when you teach that those who differ from you threaten your freedom or your job or your family, then you also learn to confront others not as fellow citizens but as enemies, to be met not with cooperation but with conquest; to be subjugated and mastered.

We learn, at the last, to look at our brothers as aliens, men with whom we share a city, but not a community; men bound to us in common dwelling, but not in common effort. We learn to share only a common fear, only a common desire to retreat from each other, only a common impulse to meet disagreement with force. For all this, there are no final answers.

Yet we know what we must do. It is to achieve true justice among our fellow citizens. The question is not what programs we should seek to enact. The question is whether we can find in our own midst and in our own hearts that leadership of humane purpose that will recognize the terrible truths of our existence.

We must admit the vanity of our false distinctions among men and learn to find our own advancement in the search for the advancement of others. We must admit in ourselves that our own children's future cannot be built on the misfortunes of others. We must recognize that this short life can neither be ennobled or enriched by hatred or revenge.

Our lives on this planet are too short and the work to be done too great to let this spirit flourish any longer in our land. Of course we cannot vanquish it with a program, nor with a resolution.

But we can perhaps remember, if only for a time, that those who live with us are our brothers, that they share with us the same short moment of life; that they seek, as do we, nothing but the chance to live out their lives in purpose and in happiness, winning what satisfaction and fulfillment they can.

Surely, this bond of common faith, this bond of common goal, can begin to teach us something. Surely, we can learn, at least, to look at those around us as fellow men, and surely we can begin to work a little harder to bind up the wounds among us and to become in our own hearts brothers and countrymen once again.

Kennedy recited these lines by Aeschylus on announcing the death of Martin Luther King, Jr.

"He who learns must suffer. Even in our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, and against our will, comes wisdom by the awful grace of God."

Must read:  NYT Columnist Bob Herbert's Savor the Moment, brief excerpt below:

Racism and sexism have not taken their leave. But the fact that Barack Obama is the presumptive nominee of the Democratic Party, and that the two finalists for that prize were a black man and a white woman, are historical events of the highest importance. We should not allow ourselves to overlook the wonder of this moment.

Blog entries of note on the RFK assassination and, more particularly, on the hope and action  "Bobby" inspired below:

Robert F. Kennedy:  What if He Had Lived, A Golden Age that Never Was by Blake Fleetwood in The Democratic Daily

A note on the Robert F. Kennedy Memorial from UCC Rev. Chuck Currie's Blog

NEW YORK STATE ASSEMBLY RENAMES TRIBOROUGH BRIDGE THE ROBERT F. KENNEDY BRIDGE from the Robert F. Kennedy, Jr. for President Blog.

A personal remembrance and link to another from Comments from Left Field

An RFK-Inspired Thought for the Day from the Law Consulting Blog

A Tiny Ripple of Hope from the Rainbow Law Blog

And this terrific compilation from Wednesday Night

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(right:  enemy?  ally?  victim? victimizer?)

Everyone's been talking about negotiating with our enemies and appeasement lately.  I've written several posts on it here and here, for instance.  I've also read dozens of news and magazine articles on the topic in the past few weeks, here and here, for instance.

Today, I highly recommend Ken Cloke's new article on the issue -- Thoughts on Mediation, Barack Obama and Our Political Future. 

Excerpt below.  Full article well worth reading.

[C]onsider . . . one of the key questions for many voters – should the US negotiate with its enemies?

Most mediators, I think, would immediately answer, “Yes.” We understand that negotiation is based on differences; that negotiating doesn’t mean agreeing; that negotiating draws people away from violent alternatives; and that negotiation is preferable to power-based solutions such as war and terrorism.

Notice, however, how use of the word “enemy” automatically builds into the question an assumption of implacable hostility and an implication that negotiation must fail. To reverse this assumption and consider not just whether, but how we should negotiate with our opponents, we need to answer a number of questions, posed nicely in an email I recently received from Jim Melamed. These include:

How does effective diplomacy and negotiation differ from "appeasement?"

The principal difference between constructive diplomacy, collaborative negotiation and conflict resolution on the one hand, and appeasement on the other, is that the former seek to satisfy both parties legitimate interests, i.e., those that do not refuse or deny the legitimate interests of others. What made the Munich meeting between Chamberlin and Hitler history’s classic case of appeasement were, among other elements:

• The absence of Czechoslovakia and other allies from the bargaining table and inability to participate in deciding their fate
• The lack of representation of Jews, Gypsies, homosexuals, and opposition parties, including socialists and communists, in a full negotiation of the chronic, systemic sources of conflict. 
• Reaching an agreement in spite of clear advance indication that Hitler had no intention whatsoever of abiding by it
• The absence of an unbiased mediator and assignment of that task to Mussolini who was an ally of Hitler
• Cowardice in avoiding principled, albeit unpleasant consequences by failing to reach an agreement A failure to address the earlier injustice and inequity of the Versaille Treaty on Germany

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Is your litigation particularly contentious? 

Take a page from theBarbie- Bratz litigation which the AmLaw Daily reports was partially settled with the assistance of Pierre-Richard Prosper, a former ambassador-at-large for war crimes issues in the Bush administration. 

(Photo from the San Diego Union Tribune article Doll Wars)

The AmLaw Daily reports that Prosper was "brought into the case by federal district court Judge Stephen Larson to oversee settlement negotiations among all three parties because (according to Prosper) the "judge and the parties thought [his] international experience mediating and negotiating armed conflicts would translate here."  See Barbie and Bratz Head to Trial here (emphasis mine).  

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In an Op-Ed piece in today's New York Times -- Kennedy Talked, Khrushchev Triumphed -- Nathan Thrall and Jesse James Wilkins suggest that John F. Kennedy's worst two days negotiating should be a lesson to Barack Obama. 

The lesson? 

That "sometimes there is good reason to fear to negotiate." 

Agreed.  But only if we add the word "badly." 

The Op-Ed piece itself describes JFK's ill-fated negotiations as follows:

Although Kennedy was keenly aware of some of the risks of . . . . meetings [with one's adversaries] . . . he embarked on a summit meeting with Khrushchev in Vienna in June 1961, a move that would be recorded as one of the more self-destructive American actions of the cold war, and one that contributed to the most dangerous crisis of the nuclear age.

Senior American statesmen like George Kennan advised Kennedy not to rush into a high-level meeting, arguing that Khrushchev had engaged in anti-American propaganda and that the issues at hand could as well be addressed by lower-level diplomats. Kennedy’s own secretary of state, Dean Rusk, had argued much the same in a Foreign Affairs article the previous year: “Is it wise to gamble so heavily? Are not these two men who should be kept apart until others have found a sure meeting ground of accommodation between them?”

But Kennedy went ahead, and for two days he was pummeled by the Soviet leader. Despite his eloquence, Kennedy was no match as a sparring partner, and offered only token resistance as Khrushchev lectured him on the hypocrisy of American foreign policy . . .  Khrushchev used the opportunity of a face-to-face meeting to warn Kennedy that his country could not be intimidated and that it was “very unwise” for the United States to surround the Soviet Union with military bases.

. . . American diplomats in attendance, including the ambassador to the Soviet Union, later said they were shocked that Kennedy had taken so much abuse. Paul Nitze, the assistant secretary of defense, said the meeting was “just a disaster.” Khrushchev’s aide, after the first day, said the American president seemed “very inexperienced, even immature.” Khrushchev agreed, noting that the youthful Kennedy was “too intelligent and too weak.” The Soviet leader left Vienna elated — and with a very low opinion of the leader of the free world.

Kennedy’s assessment of his own performance was no less severe. Only a few minutes after parting with Khrushchev, Kennedy, a World War II veteran, told James Reston of The New York Times that the summit meeting had been the “roughest thing in my life.” Kennedy went on: “He just beat the hell out of me. I’ve got a terrible problem if he thinks I’m inexperienced and have no guts. Until we remove those ideas we won’t get anywhere with him.”

Flawed Setups Make Negotiation Tactics at the Table Irrelevant or Dangerous

As the Times article states, at least one seasoned diplomat expressly opined that the issues Khrushchev was raising at the time of Kennedy's first diplomatic mission could as well (or better) be addressed by lower-level diplomats as by the President.  Kennedy's own Secretary of State  suggested that ground work needed to be laid before the leaders of the "free" and the Communist worlds met for the first time.  Kennedy ignored this sage advice and learned one of the most important lessons of his presidency -- to seem weak was as bad as being weak.  

As Lax and Sebenius caution in their excellent treatise 3-D Negotiation, the negotiation 'setup"

means acting to ensure that the right parties have been involved, in the right sequence to deal with the right issues that engage the right set of interests at the right table or tables at the right time under the right expectations and facing the right consequences of walking away if there is no deal.  Before worrying too much about tactics, the 3-D setup architect works hard to optimize these elements -- the scope, sequence, and choices about the process itself -- in which interpersonal dealing will play out.

If the setup at the table isn't promising, the 3-D negotiator doesn't merely resort to bullying . . . or turning up the empathy and personal charm . .  . Instead, he or she takes action away from the table to reset the table more favorably.  The 3-D Negotiator understands that a bad setup makes tactics at the table more or less irrelevant -- and that a great setup, conversely, makes good tactics all the more effective.  In fact, it can help the tactician achieve otherwise impossible results.

3-D Negotiation at 12-13.

“Let us never negotiate out of fear. But let us never fear to negotiate.”

This is the sentiment -- from JFK's inaugural address -- that Thrall and Wilkins suggest we question in light of Kennedy's ill-fated initial encounter with the far more experienced and cannier Nikita Khrushchev.  This caution, however, would unnecessarily throw out diplomacy's baby with negotiation's bath water.  If these wise words need any amending whatsoever, let them be:  Let us never negotiate out of fear.  But let us fear to negotiate badly. 

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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.

Jimmy Carter and Hamas

WASHINGTON TIMES EDITORIAL
April 16, 2008

Jimmy 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 Hamas

Sixty-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!

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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.

______________________________

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.

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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).

_______________________

**/  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."

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(pictured:  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.

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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.

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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

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(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.

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If this YouTube Video Doesn't Work, Click Here for the Entire Speech

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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.

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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. 

From the BBC News 

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.

Continue reading here.

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.

_________________________

/** 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. 

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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!

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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.”

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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.

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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.

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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.

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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.

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"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 

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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. 

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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

See our blog here!

See our website here!

See our Peace and Reconciliation Project Application here!

Join Mediators Beyond Borders here!

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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.

1. Marginalization:  Making ideas, people, perspectives, or insights that could threaten the system appear unimportant, irrelevant, irrational, or impossible to achieve.
2. Negative Framing:  Using language that frames new ideas and critics negatively so that nothing that threatens the system can be thought or communicated successfully.
3. Exaggeration:  Stereotyping or exaggerating one part of an idea in order to discredit the other parts and the whole.
4. Personalization.  Reducing ideas to individual people, then discrediting or lionizing them.
5. Sentimentalization:  Using sentimental occasions, ideas, emotions and language to enforce conformity and silence criticism.
6. 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.
7. 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.
8. Legitimization.  Considering only existing practices as legitimate an all others as illegitimate.
9. Simplification.  Reducing disparate, complex, subtle, multi-faceted ideas to uniform, simplistic, superficial,  emotionally charged beliefs.
10. False Polarization:  Limiting people's ability to choose by falsely characterizing issues as good or evil, right or wrong, either/or.
11. Selective Repression.  Selecting individual critics as examples, bullying them for disagreeing or failing to conform and ostracizing them.
12. 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.

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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!

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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&M -- conferences.  She cites sociologist Charles Bosk as first recognizing that M&M conferences

were a special ritual '"for witnessing [errors], resolving the confusion they create, and incorporating them into the group's history and the individuals biography."  And this ritual function [is] so important that even 'those accustomed to letting others cool their heels" cleared all other obligations in order to attend M and M.

                                     *                       *                      *

M and M, our professional ritual centered on death, attempts to heal the rents in our professional fabric caused by patient deaths.  There are few other opportunities for surgeons to discuss death.  We may mention it in passing, but we steadfastly reserve discussion for the conference, which will give us, as a group, ritual absolution.  M and M requires a public accounting of loss and, in so doing, reconstructs the death into an event that affirms a core value of our professional identity:  the need to be infallible in a highly variable world.  In this way, M and M is like death rituals in other cultures; it seeks to transform death's loss into an affirmative experience.  

According to Chen, this ritual of accountability also helps physicians deny their human fallibility, which may prevent them from taking the responsibility assumed in an M and M conference out into their patients' lives.  Chen continues:

By defining death only as the result of errors, we erase the face of our patients and insert our own fiercely optimistic version of immortality.  While admirable in some respects, this paradigm also denies our essential humanness.  When we refuse to accept our own fallibility, we deny ourselves grief.  In the end, then, M and M may prevent us from reaching what we so desperately want to achieve:  the very best care for our patients.

Fallibility,  Accountability and Apology

I have never been responsible for saving, or potentially losing, a human life.  I have only been responsible for other people's money.  And yet Pauline Chen's observations on fallibility strike a deep chord in me as a professional.  If we make a mistake, people get hurt.  And it is harder to accept responsibility for the mistakes that cause others harm than it is to accept just about any other disappointment in one's performance.  It goes not simply to our "core values" as professionals, but to the very center of our professional and individual identity.  

Some of us -- all of us under certain conditions -- will do almost anything to avoid admitting fault. 

Which Takes Us to Brian Cox's Book Faith-Based Reconciliation

First let me say that I experience the same cognitive dissonance reading this book as I experienced taking Professor Cox's Faith-Based International Diplomacy class at Pepperdine Law School.  The necessary wisdom contained here, however, makes me simply translate 'faith' and god (yes, I am, at best, an agnostic) into humanism and other people.

That said, here is Canon Cox's step-by-step prescription for accountability, forgiveness and reconciliation:

• Acknowledgment of moral culpability:  "I was wrong to have said or done . . . "  This demonstrates moral character.
• Acknowledgment of the offense or wrongdoing as specifically as possible:  "This is what I did . . . "  The more specific you are in your apology, the more likely that you will receive a positive response.
• Acknowledgment of awareness of the impact of your behavior:  "This is how I understand that it affected you . . . "  This demonstrates empathy or compassion.
• Expression of sorrow or regret at having caused offense:  "I feel sadness that I did this to you . . . "  This demonstrates caring.
• Acknowledgment that there is no adequate or true justification for your behavior:  "There is no excuse for my actions that caused you pain . . ."  This demonstrates sincere . . . sorrow for your actions.
• Explanation of what you will do to make restitution and/or alter your behavior in the future.
• Acknowledgment that you are prepared to accept the consequences of your actions.  Avoiding consequences creates the impression that you are attempting to avoid responsibility for your actions and that your apology is insincere.
• Plea for forgiveness:  "Will you forgive me?"  This is the signal that you have done all you can and that the response has now been shifted to the other person.

Are there potential legal consequences to so open an acknowledgment of error and the adverse consequences it has caused.  Yes there are and we will address them in the next post.

Let me say this, however.  I firmly believe (and I believe the research will support me in this) that apology is far more likely to avoid litigation than it is to trigger it.  In any event, living an authentic, robust life in community requires this.  It is a small act of courage.  Imagine what you would do if your life were at stake and so much more courage were required of you.  Exercise the small acts of bravery now so that you will be prepared to face the much larger ones that may be required of you some day.

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 I'm finally here in Al Hillah, Babil Province, Iraq.

The journey went from DC through London, included a night in Amman, Jordan and one week at the U.S. embassy in the Green Zone in Baghdad.

I took a C17 between Amman and Baghdad and a Blackhawk between Baghdad and Hillah.

The two footlockers I shipped from DC were waiting for me when I got here.

Yes, I told him not to go but his mom said, "if that's what makes you happy dear."

God speed!

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(Tony Karp's photo:  DMZ 1964 from the Techno-Impressionist Journal) 

Hear All About the Greening of the Korean DMZ with Doug Noll and Hal Healy at 11:00 a.m. (PST) on New Year's Eve Day . 

I've been working a little over the holidays.  You know, the work I got my ticket punched for in 1980; and, for all the complaining you hear from lawyers, the work that is by far the easiest (read:  most certain) way to make a living of them all:  practicing law.

Don't worry, legal practice will never again be my day job.  Still, I'd been seriously thinking . . . . what have I been thinking for the past three years????  I LOVE this legal research treasure hunt and the war-game strategizing that goes along with it.  And it pays by the hour, not just the time I spend "on stage."

To answer that question this morning, a power greater than me -- things as they are *-- delivered this into my mailbox.

The Korean De-Militarized Zone splits North and South Korea by a band of land that has been untouched by humankind for 53 years. During that time, nature has restored the DMZ to a pristine state of wilderness and has seen the resurgence of many endangered plant and animal species. What would happen if the DMZ were transformed from a symbol of war and strife to one of peace, sustainability, and ecological preservation? More importantly, what if preservation of the DMZ as a national park becomes part of the common ground that can resolve the many differences between the two Koreas? Hall Healy, vice-president of the DMZ Forum, has dedicated himself to making the Korean DMZ a symbol of hope, peace, and environmental beauty. Join us in a conversation about an amazing unsung project that could finally bring peace to the Korean Peninsula. 

_____________________

*  My dad, never one of my major spiritual guides, taught me this when I was in middle school:  "Things as they are giveth and things as they are taketh away, blessed be things as they are."  Thanks Dad! 

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Founding Congress – February 15?18, 2008, St. Malo Retreat Center, Stanley Hotel Estes Park, Colorado (download .pdf flyer above and circulate among your friends and colleagues)

Resolve to Make a Difference in 2008 at the Mediators Beyond Borders Founding Congress

with Kenneth Cloke, JD, LLM, Ph.D., President of Mediators Beyond Borders

Daniel Bowling, Esq. Co?Author “Bringing Peace into the Room”

Erica Ariel Fox, JD Harvard Program on Negotiation Insight Initiative

Special Guest Stars: John Paul Lederach, Ph.D. & Herman Weaver, Ph.D. “Peacebuilding: Songs from the Road”

For MBB Members and Professionals Working in Dispute Resolution: Lawyers, Judges, Peace?builders, Mediators, Arbitrators & Psychotherapists, & Systems Designers, Educators and Students.

Topics for Discussion:

? Why Mediators Beyond Borders?
? Strategies to Help Save the Planet
? Current & Planned Projects
? How to Form Project Teams
? Potential Partners & Funders
? MBB Chapters & e?Support
? Learning What Skills are Needed
? Training, e?Library & Conflictpedia
? Indigenous/Environmental Disputes
? Culture, Prejudice & Bias Reduction
? Role of VORP & Restorative Justice
? Bias Awareness
? Truth & Reconciliation Processes

ALL INCLUSIVE! $695.00, double/ $895.00 single
*Price includes lodging, all meals, supplies, retreat and MBB Congress.
www.disputepro.com 1-888-273-1403
For more information, contact Dispute Resolution Professionals, Inc., Conference Facilitator: Nan Waller Burnett, MA at disputepro@aol.com

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(In the face of global violence and inhumanity, it is easy to think: We are so few, so imperfect, and so poorly prepared, while the problems we face are so vast, multifaceted and ingrained - how could we possibly make a difference? The real question however is: How can we stand by and not try to help, no matter how imperfect our efforts may be? ~ Leonard Marlowe)

This semi-secular Christmas post will address a few  matters we're not supposed to discuss in "polite" conversation -- like politics.  Having the freedom to discuss what is truly important to me is one of the reasons I blog; one of the reasons I went to law school; and, one of the reasons I find mediation more suited to my personality and politics than legal practice. 

In case no one's noticed, this blog is dedicated to the non-violent, collaborative resolution of disputes.  To some, this makes me and my blog naive.  Others see an old lefty who, in late middle-age, has accomodated herself to liberal democratic political causes.    

Though I have acted politically in the past (the anti-Viet Nam War and Women's movements) and donate to the expected list of  politcally liberal (the ACLU; Amnesty International; Environment California; the Human Rights Campaign) and charitable organizations (the Downtown Women's Center; the Union Rescue Mission; friend Laurel Kaufer's Mississippi Mediation Project; Mediators Beyond Borders) my politics are more personal than intellectual.  In other words, I make a very bad political debater because I quickly run out of "data" to support my political "positions."

How I Got Here

I think I made an unconscious decision early on (perhaps the first time I suggested -- at 5 or 6 years old  -- that my family send a CARE package to hungry children) that my default position was going to be compassion.  Even if that meant I would sometimes be "ripped off."  I thought compassion was worth the price -- though my parents -- who would have been required to pay for a 5-year old's passions did not agree.

Since that time, I have added other default positions that constellate around compassion, including non-violent dispute resolution; cross-cultural understanding (tolerance); international cooperation; civil rights; universal medical care; stewardship of our physical environment; and, a genuine attempt to meet the first of the U.N.'s Millennium Deveopment Goals --to reduce by half the proportion of people living on less than a dollar a day and reduce by half the proportion of people who suffer from hunger.  

What I Hope for All of Us

We live in a cynical age, which is not the age in which I came of age.  I came of age in an era of hope.  I'd like to think we are capable, as a nation, of entering that age again -- one tempered by hard experience, yet willing to risk a renewed commitment to the principles of peace and justice.  

As an election year approaches with (too early) primaries, my Christmas wish is that we recall a time when the future seemed so full of potential that we were willing to wish for harmony, abundance and justice for everyone.  When was that time?  I was just a child, and yet the nation -- half paranoid; half full of optimism -- elected to our highest office a man willing to lead the nation toward goals I simply assumed to be "American."

Here, is an excerpt (see full addresss here) from that man's Innaguaral Address to the nation.  John Kennedy's speech of  January 20, 1961.  

[L]et us begin anew--remembering on both sides that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear. But let us never fear to negotiate.

Let both sides explore what problems unite us instead of belaboring those problems which divide us. .  .  .

Let both sides seek to invoke the wonders of science instead of its terrors. Together let us explore the stars, conquer the deserts, eradicate disease, tap the ocean depths and encourage the arts and commerce.

Let both sides unite to heed in all corners of the earth the command of Isaiah--to "undo the heavy burdens . . . (and) let the oppressed go free."

And if a beach-head of cooperation may push back the jungle of suspicion, let both sides join in creating a new endeavor, not a new balance of power, but a new world of law, where the strong are just and the weak secure and the peace preserved.

All this will not be finished in the first one hundred days. Nor will it be finished in the first one thousand days, nor in the life of this Administration, nor even perhaps in our lifetime on this planet. But let us begin.

In your hands, my fellow citizens, more than mine, will rest the final success or failure of our course. Since this country was founded, each generation of Americans has been summoned to give testimony to its national loyalty. The graves of young Americans who answered the call to service surround the globe.

Now the trumpet summons us again-not as a call to bear arms, though arms we need--not as a call to battle, though embattled we are--but a call to bear the burden of a long twilight struggle, year in and year out, "rejoicing in hope, patient in tribulation"--a struggle against the common enemies of man: tyranny, poverty, disease and war itself.

Can we forge against these enemies a grand and global alliance, North and South, East and West, that can assure a more fruitful life for all mankind? Will you join in that historic effort?

In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger. I do not shrink from this responsibility--I welcome it. I do not believe that any of us would exchange places with any other people or any other generation. The energy, the faith, the devotion which we bring to this endeavor will light our country and all who serve it--and the glow from that fire can truly light the world.

And so, my fellow Americans: ask not what your country can do for you--ask what you can do for your country.

My fellow citizens of the world: ask not what America will do for you, but what together we can do for the freedom of man.

Finally, whether you are citizens of America or citizens of the world, ask of us here the same high standards of strength and sacrifice which we ask of you. With a good conscience our only sure reward, with history the final judge of our deeds, let us go forth to lead the land we love, asking His blessing and His help, but knowing that here on earth God's work must truly be our own.

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While I was studying for my LL.M at the Straus Institute (Pepperdine School of Law) I took a class in "Faith Based" (or Second Track) International Diplomacy from an extraordinary man named Brian Cox.

Because I am, at best, a material-spiritualist -- one who lets the material world lead them to spiritual apprehensions -- I'm afraid I was a thorn in Professor Cox's side.    

Despite the fact that religious faith is at the core of Cox's approach to international conflict resolution, the substance of his course was not at all difficult to reconcile with my own approach to conflict resolution.  In fact, I'd go so far as to say that I would not be the person I am today; nor have the same ability to cross religious and cultural divides, had I not been exposed to Cox's theory and practice.

So it is with great pleasure that I pass along the press release for the upcoming publication of Cox's new book,   Faith-Based Reconciliation -- A Moral Vision That Transforms People and Societies.

Press release below:   

Santa Barbara, CA – November 28, 2007 – As the bridge of hostility between East and West is broken, societies slowly emerge from an oppressive system and savor their first taste of genuine freedom. However, the absence of any compelling moral vision for these societies is preventing them from defining a stable way of life. Author Brian Cox proposes Faith-Based Reconciliation to build bridges across religions for people to realize that shared spiritual values can point the way forward to a more harmonious future.

Written by an experienced practitioner in the field of faith-based diplomacy who has worked in some of the world’s most troubled regions, Faith-Based Reconciliation begins with the premise that moral vision plays a key role in shaping individuals and communities. Its primary message is that the Abrahamic moral vision shared by Jews, Christians and Muslims, which is embodied as faith-based reconciliation, is a fresh approach to intractable identity-based conflict, an alternative to religious extremism, and an ancient paradigm needed for the twenty-first century.

This book focuses on eight core values that comprise a moral vision of faith-based reconciliation: pluralism, inclusion, peacemaking, social justice, forgiveness, healing wounds, sovereignty, and atonement. Each of these represents a principle. However, each forms the foundation for policy and program development that will heal and sustain societies. These eight core values are designed to be kept in dynamic tension with each other. They assume the centrality of relationships whether between two individuals or two nations. They assume a dynamic integration of transcendent faith with politics without imposing a particular sectarian or institutional perspective.

The Abrahamic tradition, moral vision, and mission began as a promise to one person. God promised Abraham that he would be a blessing to all nations and that it would take on the form of tikkun olam—to heal, to repair, and to transform the world. Abraham had the courage to take that first step on a long journey. The baton of faith-based reconciliation has been passed by people of faith from one generation to another.

This book is a must read for today’s policymakers and for political, religious and social leaders who wish to find an effective and innovative approach to ending conflict, whether in the national or international level.

About the Author

Canon Brian Cox is an ordained Episcopal Priest and a trained professional mediator who serves both as a pastor and as a senior official of a Washington, DC-based non-governmental organization devoted to faith-based diplomacy. He has been a pioneer and practitioner in integrating faith and politics in the international context. Over the course of his work in Africa, Asia, Europe, Latin America and the Middle East , he has developed the strategic paradigm of faith-based reconciliation as a fresh approach to identity-based conflict, as an alternative to religious extremism and as a moral vision for societies.

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Click on image for a brush-up on American profiling history.  

I've pretty much successfully resisted saying anything overtly political on this blog.  Until today.

As Bertolt Brecht once publicly asked:

What times are these when a poem about trees is almost a crime because it includes silence against so many outrages.

The same could be said for "staying on point" in this negotiation blog -- there are some things it simply cannot contain silence against.

The NLJ Legal Pad reported the following today:

The LAPD is developing a plan to map the Muslims living in Los Angeles. Police officials argue that this will improve relations with Muslims and integrate "moderate" Muslims into mainstream society and somehow locate communities they deem susceptible to "extremism."

Muslim rights groups and the ACLU's LA office say this is unlawful, amounts to religious profiling, cannot be effectively done and unfairly demonizes a religion with more than a billion adherents as more prone to violent acts than others.

My motive is not to make a negotiator's point about this issue but to express naked outrage. 

Just in case Los Angeles City Officials and the LAPD don't recall the "innocuous" yellow jewish star and its inevitable end-point, I provide this photograph, which links to an article on "marking" entire religious communities in Nazi Germany.

I'm not a political blog and have no political credentials other than being a citizen in a democracy.

To keep my compact with my readers to provide the "negotiation angle" on every story, here goes:

The LAPD claims (apparently with a straight face) that its interest is to

improve relations with Muslims

As every negotiator knows, before trying to 'sell' someone what we believe they want, its best to ask some diagnostic questions to ascertain their genuine interests.

Apparently, the LAPD didn't consult with the "Muslim Community" before taking this step to improve its relations with the Muslim Community.

I doubt that such community speaks with a single voice any more than the "Jewish" or the "Christian" communities do.  But there are local Muslim leaders who could have been drawn into a dialogue to determine how many -- if any -- believe that the LAPD's possession of a map of their whereabouts is going to make them feel really terrifically safe and protected and happy, like the first class citizens they are -- since America -- a democracy -- doesn't have any citizens who aren't first class. 

That's the thing about America.  And democracy. 

Of course, just asking the question whether the people to be scrutinized believe the scrutiny will make them feel better about their relationship with the scrutinizers tends to make the scrutinizers' "explanation" laughable. 

If it weren't so chillingly ominous.

In negotiations, we call people whose interests are at stake -- stakeholders.  Just in case the LAPD and the City of Los Angeles don't know who might represent the stakeholders here, we provide the following list, found by way of an internet search that took about five minutes of my time.

Islamic Shura Council of Southern California

Muslim Public Affairs Council

Islamic Society of Orange County

Council on Islamic American Relations

Council on Pakistan American Affairs

As an Irish Protestant girl, you wouldn't think I'd care so much about the Muslim community. 

Don't underestimate me.  Or the millions of others like me -- be they Catholic or Jewish or nothing at all by way of religious persuasion.  The millions of us who simply will not let this happen.  

Not here.  Now now.  Not ever. 

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(right:  Bueno de Mesquita's "Logic of Political Survival")

Because I am always looking for the most efficient and effective means of resolving disputes, I am often drawn to what's new in social science.  Political science too often goes under my radar, as does mathematics -- the number one reason people go to law school -- because they can't do math.

The book at right was brought to my attention by this highlighted text in Good Magazine: 

In the foreboding world view of rational choice, everyone is a raging dirtbag.

What made me decide to introduce my readers to the father of "rational choice" theory, Bruce Bueno de Mesquita, however, was the application of his theory to international political problems such as the reduction of conflict between Israel and Palestine (quoted below).   

I'll have to admit that his claim to "produce a settlement [in litigation] that is 40 percent better than what the attorneys think is the best that can be achieved” -- also caught my attention.  Of such smaller conflicts is my attention consumed by.

So, I give you a little Bueno de Mesquita from Good Magazine's article The New Nostradamus

In my view, it is a mistake to look for [peacemaking] strategies that build mutual trust [between the Israelis and the Palestinians] because it ain’t going to happen. Neither side has any reason to trust the other, for good reason. . . . 

Land for peace is an inherently flawed concept because it has a fundamental commitment problem. If I give you land on your promise of peace in the future, after you have the land, as the Israelis well know, it is very costly to take it back if you renege. You have an incentive to say, ‘You made a good step, it’s a gesture in the right direction, but I thought you were giving me more than this. I can’t give you peace just for this, it’s not enough.’

Conversely, if we have peace for land—you disarm, put down your weapons, and get rid of the threats to me and I will then give you the land—the reverse is true: I have no commitment to follow through. Once you’ve laid down your weapons, you have no threat. 

The "rational" solution?

 In a peaceful world, what do the Palestinians anticipate will be their main source of economic viability? Tourism. This is what their own documents say. And, of course, the Israelis make a lot of money from tourism, and that revenue is very easy to track. As a starting point requiring no trust, no mutual cooperation, I would suggest that all tourist revenue be [divided by] a fixed formula based on the current population of the region, which is roughly 40 percent Palestinian, 60 percent Israeli. The money would go automatically to each side. Now, when there is violence, tourists don’t come. So the tourist revenue is automatically responsive to the level of violence on either side for both sides. You have an accounting firm that both sides agree to, you let the U.N. do it, whatever. It’s completely self-enforcing, it requires no cooperation except the initial agreement by the Israelis that they are going to turn this part of the revenue over, on a fixed formula based on population, to some international agency, and that’s that.

It actually gets much more controversial and interesting than this -- the "kicker" to the headline in Good Magazine reads:

Can a fringe branch of mathematics forecast the future? A special adviser to the CIA, Fortune 500 companies, and the U.S. Department of Defense certainly thinks so

If that intrigues you, you'll want to read the entire article here.

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There are two entry ways to the Museum of Tolerance here in Los Angeles.  One of the doors is labeled “prejudice” and the other “unprejudiced.” How chagrined is the museum-goer who attempts to walk through the “unprejudiced” door.  It is firmly locked.  We are all guilty. 

If you cannot visit the spectacular Museum of Tolerance, you can visit the Tolerance.org web site to find all of the resources you're ever likely to need to deepen your understanding of the prejudices we all carry with us about those who are not from the same race, religion, nation, political party, or socio-economic class as are we.

To give you a very small taste of what tolerance.org has to offer, I provide twenty of the 101 "Tools for Tolerance" on the site.  There are hundreds of other resources.  Feel free to browse them and provide them to others who share your concern that a lack of tolerance for other peoples and cultures will be the undoing of us all.

101 Tools for Tolerance

Here are twenty aimed at helping ourselves to be more tolerant.

1. Attend a play, listen to music or go to a dance performance by artists whose race or ethnicity is different from your own. 
2. Volunteer at a local social services organization. 
3. Attend services at a variety of churches, synagogues, mosques and temples to learn about different faiths. 
4. Visit a local senior citizens center and collect oral histories. Donate large-print reading materials and books on tape. Offer to help with a craft project. 
5. Shop at ethnic grocery stores and specialty markets. Get to know the owners. Ask about their family histories. 
6. Participate in a diversity program. 
7. Ask a person of another cultural heritage to teach you how to perform a traditional dance or cook a traditional meal. 
8. Learn sign language. 
9. Take a conversation course in another language that is spoken in your community. 
10. Teach an adult to read. 
11. Speak up when you hear slurs. Let people know that bias speech is always unacceptable. 
12. Imagine what your life might be like if you were a person of another race, gender or sexual orientation. How might "today" have been different? 
13. Take the How Tolerant are You? A Test of Hidden Bias. Enlist some friends to take this "hidden bias" test with you and discuss the results. 
14. Take a Civil Rights history vacation. Tour key sites and museums. 
15. Research your family history. Share information about your heritage in talks with others. 
16.  List all the stereotypes you can — positive and negative — about a particular group. Are these stereotypes reflected in your actions? 
17. Think about how you appear to others. List personality traits that are compatible with tolerance (e.g., compassion, curiosity, openness). List those that seem incompatible with tolerance (e.g., jealousy, bossiness, perfectionism). 
18. Create a "diversity profile" of your friends, co-workers and acquaintances. Set the goal of expanding it by next year. 
19. Sign the Declaration of Tolerance and return it to: the National Campaign for Tolerance
    400 Washington Avenue Montgomery, AL 36104 
20. Read a book or watch a movie about another culture.
    
    
    

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The negotiator's equivalent of "don't make a federal case out of it" is "what do you think you're doing, brokering a negotiated peace in the Middle East?"

Well (thanks -- again! -- to Geoff Sharp) we bring you negotiation tips from a guy who has brokered Middle East peace treaties -- Dennis Ross (Diplomacy: Talking Sense)  former Middle East envoy and chief peace negotiator for both the Clinton and Bush senior administrations.

(Ross' new book:  Statecraft and How to Restore America's Standing in the World, right)

Here, Ross gives us a twelve step list for effective negotiations (please go to the article itself for the detail; it's well worth the read):

1. Know what you want, know what you can live with.
2. Know everything there is to know about the decision maker(s) on the other side. 
3. Build a relationship of trust with the key decision maker. 
4. Keep in mind the other side's need for an explanation.
5. To gain the hardest concessions, prove you understand what is important to the other side. 
6. Tough Love is also required. 
7. Employ the good-cop, bad-cop approach carefully. 
8. Understand the value and limitations of deadlines. 
9. Take only calculated risks. 
10. Never lie, never bluff 
11. Don't paper over differences. 
12. Summarize agreements at the end of every meeting.

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(left:  author/illustrator Rutu Modan)

I urge you to CLICK HERE IMMEDIATELY for the most extreme and hilarious family "negotiation" (read:  manipulation) tactics ever to flow from a pen (with marvelous illustrations) from a Blog you'll immediately want to add to your Blogroll:  Mixed Emotions by Rutu Modan.

This is a New York Times Blog (don't worry, fellow amateurs, the BigBloggers have to appeal to a much wider audience) which describes its author as follows:

Rutu Modan, an illustrator and comic book creator, is a chosen artist of the Israel Cultural Excellence Foundation. She has done comic strips for the Israeli newpapers Yedioth Acharonot and Ma’ariv and illustrations for The New Yorker, Le Monde, The New York Times and many other publications. Her first graphic novel, Exit Wounds, will be published in June. Ms. Modan, usually based in Tel Aviv, is currently in Sheffield, England.

Mixed Emotions is translated by Jesse Mishori. 

And if you want to off-set this dark whimsey with a little practical know-how from the smartest guys in the room, here's the Harvard Business School Working Knowledge article, Five Steps to Better Family Negotiations.

 

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(photo by Anairam Zeravla from MorgueFile)

I once had a relationship in which we fought about the way we should fight.  We called this fight the "MetaArgument."

Now, the Negotiator's Field Book -- the Desk Reference for the Experienced Negotiator tells me that what I was having was a "shadow negotiation" (see Deborah M. Kolb's chapter Strategic Moves and Turns here) in which  

 

people . . . negotiate how they are going to negotiate [and where] they work out the terms of their relationship and the expectations they have of each other. Even though the subject seldom comes up directly, they decide between themselves whose interests and needs will hold sway, whose opinions will matter, and how cooperatively they are going to work together.

You'll have to read the entire article to derive the full benefit (I ordered this book today), but here's an excerpt to tantalize you:

In an interesting example from the world stage, in trade negotiations between U.S. Trade Representative Charlene Barshefsky and her Chinese counterpart over intellectual property, Barshefsky used interruption and diverting turns participatively in response to a threat.

Menacingly, he (Chinese negotiator) leaned forward across the table toward Barshefsky and said flatly, “It’s take it or leave it.” Barshefsky,t aken aback by the harsh tone, surprised her counterpart by sitting quietly. She waited 30-40 seconds—an eternity given the intensity of the negotiation— and came back with a measured reply: “If the choice is take or leave it, of course I’ll leave it. But I can’t imagine that’s what you meant. I think what you mean is that you’d like me to think over your last offer and that we can continue tomorrow.” 

Barshefsky’s participative turn of the threat disrupted it and resulted in a major compromise the next morning. The interruption (her silence) was important; it enabled her to reassert control. Further, her diverting turn signaled her intention to revise the Chinese negotiator’s offer, but did it in a way that gave him space to back down. In this case, her turning a threat signaled that this tactic would not work and pushed the mover to reconsider.

Both equity and participative turns have the potential to be critical in shifting a negotiation. Equity turns can involve each party testing the other’s mettle. Such posturing can move the negotiations along. Of course, it is also possible that this kind of posturing can result in backlash and impasse. Participative turns seem to be more likely to lead to positive transitions and even the possibility that some forms of transformation might occur.

For the remainder of this chapter, click here.  Ms. Kolb's article alone is worth the price of the book.

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(photo by D.B. King)

The following excerpt from the PBS Benjamin Franklin webpage, Citizen Ben, demonstrates the wisdom of Lax' and Sebenius' advice that every successful negotiation requires moves away from the table to set  up the most promising situation once your'e at the table. 3-D Negotiation.

Here, those "away from the table" negotiation moves led to the founding of our nation.   

In 1781, Benjamin Franklin was in France. .  .  Franklin understood the French and knew that real diplomacy wasn't accomplished at the negotiating table, but at the dinner table. He spent a great deal of time in the salons and at dinner parties where things could be discussed in an informal manner. In this way, he won the trust and respect of the French court.

Although the Continental Congress wanted to negotiate a treaty directly with Great Britain, the French wanted to arrange for a three-way treaty that would end the war between France and England, as well as between England and the colonies. There was some concern on the part of the Congress, as well as other commission members, that Franklin might be unduly influenced by France in the negotiations. Months passed and various offers and counteroffers were made by the former colonies and Great Britain. In addition, France was negotiating settlements with Great Britain that involved portions of the North American continent.

Adams and Jay made an end run around France to negotiate a treaty directly with Great Britain. The British made an incredible offer, one that gave the Americans almost more than they were demanding. Franklin recognized that the British offer was the best that could be had. The French were offended that the Americans had gone behind their back.

Franklin used his connections and his diplomatic skills to convince the French that Adams and Jay had acted out of lack of propriety, not hostility.

In late November 1782, the Paris pact was signed and sent back to Great Britain and the American Congress for ratification.

Thanks to Franklin's diplomacy, along with Adams' and Jay's work, the United States was recognized as a separate and equal nation by the world's great superpowers, France and Great Britain.

Happy 4th of July!

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The June 27 New York Times Opinionator on Bush's options for closing Guantanamo drawn from the same day's Washington Post Editorial "Closing Guantanamo"  outlines the bargaining options available to Bush and Congress in negotiating the closure of the Guantanamo Gulag.

BUSH, opines the Washington Post, 

can and should offer a lot: the closure of Guantanamo and major improvements in the commissions and tribunals. In particular, those suspects to be held without trial as unlawful enemy combatants should be given far more due process. They should have lawyers and be allowed to call witnesses and challenge evidence. Their cases should be considered by full-fledged judges whose decisions can be appealed, and reviews should occur more frequently.

CONGRESS, suggests the Post

[can authorize the executive branch to] hold a limited number of foreigners in the United States without charge and to try some suspects — such as the top leaders of al-Qaeda — under rules that would depart from those of conventional courts-martial and criminal trials.

BUSH COULD THEREBY

create a legal system for the war on terrorism that could serve future presidents [potentially avoiding history's judgment as the President]  who created the terrible mistake that is Guantanamo — and who missed his chance to fix it.

This is certainly a rational proposal, but not one likely to meet the Bush Administration's very real political interests in maintaining the status quo.  

Why Won't This Compromise Work?

There is simply nothing in this proposal to satisfy the Bush Administration's interests (the needs, desires and fears that underlie its political positions).  

The proposal is, essentially, complete surrender with the stick of history's judgment (and the inevitability of Guantanamo's closure) to compel capitulation.  The current administration, however, is surely aware that history's judgment will be no less harsh if Guantanamo is closed during Bush's final year in office or during the first few months of his predecessor's tenure.  

What are the administration's interests in maintaining the status quo?  

• if nothing changes at Guantanamo at least until after the election, the future of the Republican Party will be less endangered than it might otherwise be if the public were to learn, pre-election, about the precise conditions to which the Guantanamo prisoners have been subjected and on what flimsy evidence many of them have been held. 
• if military personnel and administration officials are guilty of war (or lesser) crimes for the "interrogations" they have conducted at Guantanamo, a victorious Democratic Party might well not be inclined to prosecute those in charge of Guantanamo in the spirit of "healing" the country.

These, I believe, are the true interests  that any compromise with the Bush administration would have to address if there is to be any meaningful shift in the status quo at Guantanamo before the '08 election.

Bush and Company simply have nothing to gain and nearly everything to lose by opening Guantanamo now.  

There is always the option, of course, of behind-the-scenes deals that can be brokered to protect the highest officials from the worst investigative and prosecutorial follow-up. 

Legal?  No!  The historic norm?  (think presidential pardons)  Yes.

We'll just have to wait and see.

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(The Sound of Time (2003) by Dorit Cypis)

Conflict is . . . is simply the sound made by the cracks in a system, a boundary condition that can best be resolved by communicating across the many internal and external borders we have erected to keep ourselves safe, or exclude others.  --- Ken Cloke, President, Mediators without Borders, Committing Personally, Acting Globally.

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(photo by Maureen Flynn-Burhoe)

We follow high-level negotiations, as well as the small commercial dispute, here.  No matter the stakes, the dynamics are the same.  See, for example, today's AP article, Collapse of WTO Talks Puts Trade Deal in Limbo.

What's at stake? 

a new world trade pact aimed at adding billions of dollars to the global economy and lifting millions of out of poverty.

Who are the negotiating parties?  The United States, the European Union, Brazil and India. 

Are there feelings, i.e., emotions involved?  Have we mentioned recently neuroscientist Antonio Damasio's research on people whose brain injuries interfered with their ability to feel emotion?  They could make endless pro and con lists, but couldn't make decisions.  Why?  Because there is a pro and con to every choice we make.  Paper or plastic?  Fish or Meat?  Peace or warfare?  Settle the lawsuit or try it?  

In the absence of a feeling that makes us desire one outcome more than another, we are at a total loss.  

How does impasse feel?  If you'd been a WTO negotiator, your

emotions rang[ed] from anger to confusion [as they] left Potsdam on Friday knowing they had failed to break a six-year logjam between rich and poor countries over eliminating barriers to trade in farm produce and manufactured goods.

And the angry and confused government officials?  Do they think their own bargaining position is to blame or do they believe that their negotiating partners are acting in bad faith?  Let's see.

European and American officials questioned Brazil's intentions and wondered if it intentionally blocked progress to curry favor with developing countries, many of whom were unhappy with the private negotiations among the four powers.

Brazilians accused Washington and Brussels of agreeing beforehand to protect their agricultural interests.

Many officials criticized Indian Trade Minister Kamal Nath for arriving late on Tuesday after missing a flight and having a return scheduled ahead of the summit's end.

All sides said they negotiated in good faith.

Sound familiar?

The reasons for impasse and ways to break it will be the subject of a lengthy weekend post.

In the meantime, here are two prior posts on impasse -- Negotiating Past Impase and Breaking Impasse.  

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(Mermaid and Merman by James M. Thorne)

Dinah Lynch at Mediation Mensch has launched a meme tag Can Mediation Go Green? 

I could talk about the energy-efficient, compact fluorescent light bulb -- the CFL  -- that illuminates the desk on which I write this post or explore the (controversial) issue of carbon credits and taxes.

But I'm more interested in the paradigm shift necessary to survive the climate crisis. 

I earlier wrote about the book my friend and mentor Ken Cloke is writing called "Mediators Can Save the Planet" in Empathy, Evolution, Mediation and Global Warming.  

Why mediators? Because WORLD 3.0 will require that we supercharge our natural cooperative and altruistic natures while dampening our competitive drive without thereby discarding our ambition.

What will it take? A shift from competition to collaboration.

Can we do it?  "Yes we can," says Al Gore in An Inconvenient Truth at the moment when his audience begins to move from denial to despair.

How?

At least one way to get the global cooperation ball rolling will be to school ourselves in empathy, a necessary prerequisite to tackling the problem of collaborative solutions to worldwide problems.

We Don't Have the Luxury to Cling to "Hot Button" Issues

I was talking to a young attorney in my husband's law firm last night at a fund-raiser for Public Counsel.  When I suggested Obama '08, he demurred on the ground that Barack's church-state separation position wasn't sufficiently clear and it was one of his "hot button" issues.

I said, "we can't afford any hot button issues in the coming election.  There's too much at stake."  I didn't need to say more. 

Denial and Despair:  The Parade of Horribles

Catastrophic species extinction, mass relocation of populations dispossessed by rising oceans, vast increases in wars fought over diminishing natural resources, and continued destruciton and  dispossession caused by increasingly severe weather conditions.  

There's more, but that should be enough for denial and despair to set in.

Hope:  What Mediators Can Do

Last week, I had the great pleasure of shaking Barack Obama's hand and asking him what an ordinary citizen like myself could do to help his campaign.  

"Talk," he said.  "Talk to your freinds and your family.  Talk to those who support me and those who don't.  Talk to Democrats and talk to Republicans.  Talk to those who agree with you and those who don't.  But first listen." 

The challenge of winning a presidential election in the most technologically advanced, economically strong, militarily mighty nation in the world pales in comparison with the work we must do to survive the twenty-first century with our freedoms intact. 

We cannot do it alone.  We cannot continue to avoid difficult conversations with our friends, families, and those who we perceive to be the enemies to good governance and thoughtful environmental stewardship.

I am voting for Barack because he is a conciliator.  I believe he has the heart to do the right thing and the intelligence to surround himself with the people necessary to accomplish it.  He is not a utopian nor an ideologue.  He is practical and progressive.  

But my hopes are not really pinned on Barack.  My hopes are pinned on the American people to awake from our long post-9/11 slumber.

My hope is that no matter who we put in charge of the White House in '08, we will begin working together, talking together, reaching consensus on those issues on which we can agree, forgiving one another for our inability to solve those we cannot; and, building coalitions of those willing to put aside their personal grievances so that we can rise to the unprecedented global challenges that face us.

Why Mediators?

What is the first step in a mediation?  The creation of hope and safety.  And after that?  Communication, reality-testing, and problem solving conducted by locating our mutual interests and finding ways to satisfy them.  Reconciliation, forgiveness.  Dare I say justice.

This is not work for the weak-willed.  It is not work for those with stars in their eyes.  It is not work for ideologues or utopians.  It is work for those, as Ken Cloke says, who are hopeful at heart and pessimistic of mind.  For those who combine a fine skepticism with the courage (and humility) to reach across the aisle, cross the political divide, listen to those with whom we most violently disagree and seek solutions.

In all of this, we must realize that we are not creating a world without borders.  We are simply recognizing it.  We are one, united, inseparable, inter-dependent, fragile and worthwhile.  Every one of us.

As James Agee wrote of our responsibilities in depression era America:

In every child who is born under no matter what circumstances and of no matter what parents, the potentiality of the human race is born again, and in him, too, once more, and each of us, our terrific responsibility toward human life: toward the utmost idea of goodness, of the horror of terrorism, and of God.

James Agee, Let Us Now Praise Famous Men

That's green.

I tag Justin Patten, Paula Lawhon, and Jan Schau.

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From Slate, a year of Blogging the Bible by David Plotz, comes to an end.  It all starts here.

And not a minute too soon to cure our national Biblical Illiteracy as reported by this Sunday's Book Review of Religious Literacy, described as "Stephen Prothero’s jeremiad about declining religious knowledge."

How does this relate to conflict resolution?

Read the headlines lately?

For an anthropologist on Mars look at reading the Bible, check out Julia Sweeney's hilarious and touching Letting Go of God.  And for a modern and deeply felt re-interpretation of the story of Cain and Abel, listen to Am I My Brother's Keeper, also a This American Life classic, by Jonathan Goldstein.

And finally, for a set of compelling audio programs on religion and dispute resolution, click here.

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Last week, along with my extern, Pepperdine Law School and Straus ADR student Cameron Mitchell, and my friend, the actor, musician, and singer-songwriter Lisa Douglass, I presented an Improv Seminar on Peacemaking in a Tit for Tat World using Baz Luhrman's hypnotic Romeo + Juliet as a jumping off point. 

The Seminar was sponsored by the L.A. County Bar Association's Dispute Resolution Services and the SCMA's Salon Series.  Thanks to Kathryn Turk of the West Hollywood Community Mediation Center and Jan Schau, President of the SCMA for the opportunity and facilities to host the Salon.

This is one the scenes we used to demonstrate how dangerous peacemaking can be in the absence of conflict resolution skills, particularly in response to an intractable conflict where communication is non-existent or diminished, the conflict itself is ritualized and celebrated, and extreme positions encouraged, as we see here, resulting in Mercutio's death.

We used an excerpt of Ken Cloke's article Mediators Without Borders: A Proposal to Resolve Political Conflicts as a teaching tool and many in attendance asked for the text.  I've therefore summarized the important points we covered at the seminar and linked to the article above.

Five Strategies for Intervention in an Intractable Conflict

1. actively encourage the open expression of the rage and grief stirred up by the conflict in a context that is constructive and oriented to resolution and reconciliation, such as that used by the South African Truth and Reconciliation Commission. 
2. dismantle the prejudices and stereotypes of the “enemy” through a combination of bias awareness, storytelling, dialogue, collaborative negotiation, and strategic planning techniques.
3. develop skills within local neighborhoods and communities in group facilitation, public dialogue, strategic planning, collaborative negotiation, and peer mediation.
4. encourage forgiveness and reconciliation by creating openhearted communications and direct dialogues between former antagonists.
5.  institutionaliz[e] these skills so that future conflicts can be resolved without coercion or violence.

More on all of this later next week.

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Below is an excerpt of the Washington Post's review of Cobra II  The Inside Story of the Invasion and Occupation of Iraq, the book that is not simply sitting on my bedside table but which I am actually reading.  

It is too soon to provide my own brief review other than to say that I am no military history, nor even history, buff.  I just want to start making more sense out of what actually happened, admitting that I get most of my war analysis from the Daily Show and the New Yorker (the latter easier to admit than the former).

Although it's ok with me that blogging has completely replaced television as a leisure activity, Mr. Thrifty recently commented to its seems to have replaced reading books with covers and paper pages held in my hands.

Because that is not OK, I immediately headed off to my nearest Borders and its 3-for-the-price-of-2 table.  I decided to tackle Cobra first and am glad I did.  I am beginning to make sense of the actual front page and occasional network news again (the latter apparently available for download -- sans commercials! -- somewhere on the 'net since Thrifty has adopted a new marital habit of bringing his computer over to the couch where I'm blogging and turning on Katie Couric for me.  Ah togetherness!!).   

Before giving you the Washington Post Review, I'd like to suggest to my ADR buddies that they let us know what they're reading.  This isn't so much as a "meme" tag as it is a request to make reading material a category on their blogs, as I've just made "What I'm Reading Now" on mine.  

How about it Tammy Lenski, Diane Levin, Geoff Sharpe, and Stephanie West Allen?  Wouldn't you like your readers to know from time to time what it is that you're reading?  I'd sure appreciate knowing.

On their "inside story" of the war, Michael R. Gordon and Gen. Bernard E. Trainor . . . show that the U.S. military's tactical brilliance during the war's early stages came despite the strategic miscalculations of senior civilian and military leaders -- and that the Bush team's misjudgments made the current situation in Iraq far worse than it need have been.

Continue Reading...

Tags: International Diplomacy, What I'm Reading

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The noisiest, most opinionated people in the world, Bloggers, will be observing a Day of Blog Silence on April 30, 2007, for the victims at Virginia Tech.  We invite our fellow bloggers to join in (thank you Tammy Lenski of Mediator Tech for the head's up). 

Before then, we noisily give you the following for your thoughtful consideration:

The Brady Campaign to Prevent Gun Violence

You've seen her interviewed by the network news about the tragedy at Virginia Tech.  Now buy my friend Princeton Professor Katherine Newman's book, Rampage, the Social Roots of School Shottings.  

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Thirty years ago (more or less) my law school trial advocacy professor taught me this:

Trial is not about ascertaining the truth.  Nor is it about justice.  It is simply one way to finally resolve a dispute.

I have to admit that my legal career was probably more marked than others by the belief that I was working on the side of truth and justice.  

But then, I was working small. 

Did the word "sudden" mean "quick" or only "gradual" and "unexpected" within the meaning of the pollution exclusion contained in a policy of comprehensive general liability insurance? 

Was it misleading to omit the exchange rate from advertising for the transmission of money to foreign countries? 

Could you negligently conspire to drive a medical provider out of business? (answered affirmatively, believe it or not, by the trial court).

Now that my view of the adversarial system is one of mediator and sometimes arbitrator,  what the "truth" is seems murky again, the way it did when I was clerking for a federal district court judge during law school.

So this post is the beginning of a series of posts about "justice" and fact-finding.  A series that will follow the path of my interest and discovery.  A series that raises questions that might never be answered.

To begin the exploration, I borrow freely from the excellent article by Professor Lisa Blomgren Bingham  When We Hold No Truths to Be Self-Evident:  Truth, Belief, Trust and the Decline in Trials.  This article, from a 2006 Symposium Issue for the Journal of Dispute Resolution, can be found on Westlaw and Lexis-Nexis and likely elsewhere on the internet.  I do not, unfortunately, have a free link to the article itself. 

We start with JUSTICE.

Distributive Justice

Distributive justice has its roots in social equity theory. It posits that social behavior occurs in response to the distribution of outcomes. Distributive justice emphasizes fairness in the allocation of outcomes. Thus, in mediation research, distributive justice suggests that satisfaction is a function of outcome, specifically the fact and content of a settlement or resolution. In theory, participants are more satisfied when they believe that the settlement is fair and favorable. There is a substantial body of empirical research that supports the distributive justice model as an explanation of satisfaction. The research suggests that distributive justice is a better explanation for satisfaction related to conflicts over resource allocation, such as wage disputes than other cases in which fairness matters. 


Procedural Justice

Procedural justice refers to participants' perceptions about the fairness of the rules and procedures that regulate a process. In contrast to distributive justice, which suggests that satisfaction is a function of outcome (the content of the decision or resolution), procedural justice suggests that satisfaction is a function of the process (the steps taken to reach that decision). Among the traditional principles of procedural justice are impartiality, voice or opportunity to be heard, and grounds for decisions. 

Procedural issues such as neutrality of the process and decision-maker, treatment of the participants with dignity and respect, and the trustworthiness of the decision-making authority are important to enhancing perceptions of procedural justice. Extensive literature supports procedural justice theories of satisfaction in a variety of contexts involving both courts and dispute resolution. In general, research suggests that if organizational processes and procedures are perceived to be fair, participants will be more satisfied, more willing to accept the resolution of that procedure, and more likely to form positive attitudes about the organization.

Interactional Justice

Beginning in the 1980s, organizational justice researchers developed the notion of interactional justice, defined as the quality of interpersonal treatment received during the enactment of organizational procedures. In general, interactional justice reflects concerns about the fairness of the non-procedurally dictated aspects of interaction. Research has identified two components of interactional justice: interpersonal justice and informational justice. These two components overlap considerably. However, empirical research suggests that they should be considered separately as each has differential and independent effects upon perceptions of justice. 

Informational Justice

Informational justice focuses on the enactment of decision-making procedures. Research suggests that explanations about the procedures used to determine outcomes enhance perceptions of informational justice. Explanations provide the information needed to evaluate the structural aspects of the process and how it is enacted. However, for explanations to be perceived as fair they must be recognized as sincere and communicated without ulterior motives, be based on sound reasoning with logically relevant information, and be determined by legitimate rather than arbitrary factors.  

Interpersonal Justice

Interpersonal justice reflects the degree to which people are treated with politeness, dignity, and respect by authorities. The experience of interpersonal justice can alter reactions to decisions, because sensitivity can make people feel better about an unfavorable outcome. Interpersonal treatment includes interpersonal communication,  truthfulness, respect, propriety of questions, and justification, and honesty, courtesy, timely feedback, and respect for rights. 

What all of this means in the "lay" terms of this blog, will be the subject of later posts, all labeled, "Truth, Justice and the American Way"  if the topic is of interest to you and you'd like to follow it (and comment upon it!)

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Just the other day we were talking about tit for tat violence in Romeo and Juliet.  Today, USNews.com in Friends, Family and Foes, in Iraq, Sunnis and Shiites Fight, But Sometimes They Marry, brings us a Shiite-Sunni wedding worthy of Friar Tuck's imaginings when he married the star-crossed lovers. 

 "In one respect I'll thy assistant be," he says of the upcoming secret nuptials, "for this alliance may so happy prove, to turn your households rancour to pure love." (Act 2, Scene 3). 

It's hard not to have one's hope slightly buoyed by this symbolic gesture.

"The bride," USNews.com reports,

is a university student from a storied Sunni tribe, the groom a technician at an Iraqi cellphone company and the son of a prominent Shiite tribal leader. It could almost be a Baghdad version of Romeo and Juliet but with a twist--the marriage was arranged by their parents, in part as a willful symbol of defiance against the sectarian violence that has riven Iraq.

The unlikely nuptials might appear to be a doomed gesture in a place where tension between Sunnis and Shiites seems to keep escalating with random killings and tit-for-tat retaliations. Shiite families have been chased out of suddenly unfriendly Sunni neighborhoods, and vice versa. The sectarian strife has been aggravated by growing confusion over the loyalty of Iraq's Shiite-dominated security forces and a months-long delay in forming a new government.

But the wedding also serves as a reminder of the complexity of the Iraqi mosaic, where Sunnis and Shiites have long been deeply interwoven. Not long ago, a Sunni-Shiite wedding would have been unremarkable. But in today's Baghdad, it is a brave and fraught venture. For these two families, it also means wrestling with the uncertain future of their troubled nation--and placing what amounts to a high-stakes bet that, in part because of events like this one, Iraq will not descend into a full-fledged civil war.

For the full account, click on the title of the article above.

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Hamas decides to stop news release over Israeli captive soldier


The ruling Islamic Resistance Movement (Hamas) decided on Monday to stop news release about the abducted Israeli soldier Gilad Shalit, who has been held hostage by Hamas' armed wing in Gaza.

"The captors of the soldier decided to deal silently with his case," Osama al-Muzini, a member of Hamas leadership, told reporters in Gaza.

"This comes to maintain the privacy of the issue and the reaction of the press could affect the track of the case," explained al-Muzini, who is also well-informed about the mediation efforts over the prisoner swap deal.

Al-Muzini stated that any future procedures concerning the issue would be carried out through an Egyptian security team, a mediation actor who follows up the case between Israel and the Palestinian captors.

Shalit was seized by three Palestinian militant groups led by Izz el-Deen al-Qassam Brigades, armed wing of Hamas, in a cross- border raid on June 25 and has been held hostage since then.

The captors conditioned the return of Shalit on release of 10,000 Palestinian prisoners jailed in Israel.
The talks under Egypt's mediation over a swap deal has continued for months without tangible progress.

Few days earlier, al-Muzini announced the mediation efforts hit a deadlock, accusing Israel of delaying the swap.

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Jan 18 (Reuters) - The United States has invited the quartet of Middle East peace negotiators to meet in Washington on Feb. 2, boosting efforts for wider international involvement in the stalled peace process between Israelis and Palestinians.

For the chronology, click here. and click here for update on prisoner exchange.

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Bertolt Brecht once asked

what times are these

when a poem about trees

is almost a crime

because it contains silence

against so many outrages?

As America prepares to send 21,500 more young men and women into harm's way in Iraq, I am asking all Blawgers to observe at least one day of mourning this month over lives lost in Iraq.

In whatever way seems appropriate.

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We continue to follow this one Middle East Negotiation for you. 

On January 4, bloomberg.com reported in an article by Jonathan Ferziger entitled Mubarak Chides Israel at Summit on West Bank Deaths that Egyptian President Mubarak pledged to keep working with all sides to arrange a breakthrough prisoner exchange that could help unfreeze peace talks between the two sides.

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A beautiful thing is happening in India and Pakistan. The children of both nations are writing heartfelt letters to one another in an effort to build lasting bridges of friendship. This effort is being run by a group called Friends Without Borders.

The hope is that when this younger generation grows up, a much saner world will take over. This video captures the story of this campaign up to the point of delivery of the first round of letters in Pakistan.

It's an amazing story that features "The World's Largest Love Letter" and the famous public service announcement that played on most every network throughout India and Pakistan.

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From today's International Herald Tribune Article Egypt Delivers Arms to Moderate Palestinians with Israeli Approval.

One of the Palestinian militant groups holding a captured Israeli soldier said progress has been made toward a prisoner exchange.

Abu Mujahed, a spokesman for the Popular Resistance Committees, said Egyptian mediators are trying to finalize a deal. "We received positive signals from our Egyptian brothers, who are acting on this matter," he said. "Everything depends on the Israelis."

He declined to say when a prisoner swap might take place. The soldier was captured by Hamas-linked militants in June. Israel has agreed in principle to free Palestinian prisoners, but there are disagreements over numbers and timing.

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Most attorneys do not like to begin their mediated negotiations with a joint session and neither do many mediators.  The reason most often given is everyone's desire to avoid a polarizing set of zealously adversarial presentations.  

Work done by our neighborhood neuroscientists, however, suggests that avoiding joint sessions may deprive us of the  "small talk" necessary to put the parties into a collaborative, even generous mood.  

First the Neuroscience  (from my favorite source for such insights, the Neuromarketing Blog) 

Recent research confirms that the miserly not only spend more time thinking about money than their more generous peers, they are also more socially withdrawn.  Although Dickens nailed the personality type on the head  when he created the friendless and miserly Scrooge, it seems that all of us are anti-social and penny-pinching when focusing primarily upon money. 

The confirming research?  Recruiting the usual cadre of beleaguered undergraduates, scientists at the University of Minnesota found that when students have their minds on money, they tend to be both selfish and withdrawn.  Those who were "primed" by money imagery before being asked to engage in (or imagine) solitary, group or "helping" activities  

waited nearly 70% longer to seek help than those who[se attention was not directed to money]; spent only half as much time . . . assisting []other[s] . . . [and] preferred working alone even if sharing the task with a co-worker resulted in substantially less work. 

The young people whose attention was focused on money also  

chose solitary leisure activities . . . preferring a private cooking lesson, for instance, over a dinner for four [and] when asked to set up two chairs for a get-to-know-you chat with another volunteer, . . . placed the chairs further apart than subjects [whose attention had been directed to non-monetary themes].

These findings, concluded the researchers, suggest that thinking of money puts people in a frame of mind in which they don’t want to depend on others and don’t want others to depend on them.  (see Thinking About Money from Neuromarketing here).  

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The AP reported yesterday that Egyptian negotiator, Omar Suleiman told Israeli officials he believes the Israeli soldier captured in June by Hamas-linked militants could be released within three weeks. 

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Holiday Wishes and New Year Appreciations for the People Who Are Bringing Us MEDIATORS WITHOUT BORDERS in 2007! Click on the Link to Join or Donate Today Mediators Without Borders. 

This holiday card is posted as a tribute to the newly formed Mediators Without Borders.

Neither this Blog nor the linked MWOB web pages are projects of Mediators Without Borders. 

Mediators Wtihout Borders needs your contributions to put up its own blog and website as well as for all other administrative expenses.

For details and links to the Steering Committee's individual web sites, see the Southern California Mediation Association MWOB Blog Post Here. 

HAPPY HOLIDAYS AND A PEACEFUL NEW YEAR!!

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CLICK HERE FOR THE

APPLICATION FORM

We are thrilled to announce the creation of Mediators Without Borders (MWOB).

MWOB is a non-profit provider of pro bono conflict resolution capacity building within post-conflict communities.

A key goal of MWOB is to develop indigenous skills for group facilitation, public dialogue, strategic planning, collaborative negotiation, and peer mediation.

The concept is for teams of volunteer mediators to conduct skill-building workshops consistent with the norms, values, and culture of the locale.

The Mission is to increase the capacity of hostile communities to prevent, resolve, and recover from violent conflict. An array of conflict alternatives can be explored by strategic integration into the political, economic, and social institutions. The same team would volunteer for between 1-3 weeks per year, over a number of years in the same country, to build sustainable initiatives and to develop local peacemakers and peacekeepers.

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As promised, an update on the possibility of a mediated prisoner exchange here.

Pictured:  Tony Blair and Mahmoud Abbas, the Palestinian president, walk past a guard of honour at the presidential compound in Ramallah

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If your holiday shopping prevents you from reading Peter Singer's article "On Giving" in this Sunday's New York Times magazine, I'm here (suffering from a flu mild enough to catch up on my recreational reading) to give you the executive summary.

Saving Children from Drowning 

Peter Singer is a philosopher, one of those guys who we pay to keep asking the questions we generally stop asking at midnight after we move out of our college dorm rooms.  More particularly, he is the Ira W. DeCamp professor of bioethics at the Center for Human Values at Princeton University.

In an article Singer wrote more than thirty years ago, he used a hypothetical child drowning in shallow water to explore how we value our own material well-being when compared to the desperate circumstances of others.  

How desperate? 

A billion people who inhabit the planet with us live on less than the equivalent of one U.S. Dollar a day.  Their children, ten million of them to be precise, die every year of poverty-related causes. 

30,000 every day.  

Here's Singer's thought-experiment.  As you walk by a shallow pond,

you see a small child who has fallen in and appears to be in danger of drowning.  Even though we did nothing to cause the child to fall into the pond, almost eveyone agrees that if we can save the child at minimal inconvenience or trouble to ourselves, we ought to do so.  Anything else would be callous, indecent, in a word, wrong. 

The fact that in rescuing the child we may, for example, ruin a new pair of shoes is not a good reason for allowing the child to drown.  Similarly if for the cost of a pair of shoes we can contribute to a health program in a developing country that stands a good chance of saving the life of the child, we ought to to do.   

Simple enough, you say, but remember the statistics that preceded Singer's hypothetical.

Every single year there are one million children drowning. 

30,000 per day.  

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