About Us

Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

She Mediates

ADR Services, Inc.

She Negotiates

She Negotiates

The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

Obama v. Syria

I'm not advocating an armed response. I'm just talking about line-drawing, its perils and its consequences.

What Lean In Needs Now: Accountability, Amends and #PayGenY

If you're working in the professional, managerial and entrepreneurial women's sphere at all, you can't have missed Lean In's misstep in seeking to "hire" an unpaid intern to assist it with its mission to more fairly retain, promote, pay and otherwise reward women for their uniquely valuable contributions to the workplace, the community and the economy in general.

This is no time for public relations.

This is time for Lean In to walk its talk by taking responsibility for a bad deed committed (seeking the services of an unpaid intern) and making amends to a nation of higher education debtors, most of whom inhabit Gen-Y, who are not only burdened by historic levels of crippling indebtedness, but who have prepared themselves for a marketplace that is recovering without the benefit of increased employment.

How could Lean In then make amends? By becoming a spokesperson for and supporting the underfunded organizations that are fighting the fight against illegal unpaid internships. 

Here is a list of the many organizations that are gathering the resources to end a practice that has become so common that even a Lean In staffer thought nothing of seeking out the services of an unapid intern during the same week in which its founder, Sheryl Sandberg, earned $91 million in the sale of only a portion of her interest in Facebook.

@PayGenY (She Negotiates' initiative)

Intern Justice (the lawyers bringing suit, led by Maurice Planko)

Youth and Work (Andrew Langille, an important Canadian voice to end unpaid internships)

Intern Rights, NYU at coworker.org

The Intern (documentary)

Intern Labor Rights

UK Petition to Abolish Unpaid Internships

Please leave the name and link to other organizations supporting the right of workers to be paid for the benefit they provide to their employers, non-profit or not. (yes, you may still volunteer to visit the sick and elderly)

If you'd like to know how ending unpaid internships will serve the self-interest of the rest of the working population, consider these facts.

  • Gen-Y needs employment not only to pay back student loans, but to begin paying income and payroll taxes and contributing to Medicare and Social Security (how about that, fellow Boomers?)
  • Interns are routinely given clerical work that the organization would otherwise have to hire a clerical worker to do. Outlawing internships or doing the right thing by paying all your workers, will reduce unemployment and help get this jobless economy back on track to an employed America (with enough money to buy the consumer goods on which the health of the economy depends)
  • Slavery was absolished quite some time ago for very good reasons. 
  • Only the well-to-do can take full-time or even part-time unpaid internships. Thus, anyone "hiring" unpaid interns is contributing to the increasingly shocking divide between the "haves" and the "have nots."

There are lots more reasons (here, for instance, are 20 of them) but visit any of the sites above and you'll get a firehose delivery of why unpaid internships are bad for the economy, bad for the generation that will support the Boomers behinds, and bad for the soul.

If you're paying your interns, we'll reward you with the right to display our badge (above) on your website.

Negotiator Shero: British Home Secretary Theresa May

The most senior woman in British Prime Minister David Cameron's cabinet, Home Secretary Theresa May, is being lauded this week for negotiating the deportation of accused terrorist Abu Qatada.

As the New York Times reports this morning in its article After Legal Marathon, Britain Deports Terrorist Suspect

Mrs. May, with overall responsibility for policing and internal security in Britain, has made the effort to deport Mr. Othman a personal priority. She has twice visited Jordan, meeting with King Abdullah II and other senior Jordanian security officials, in an effort to complete negotiations on a treaty that would clear the way for his deportation.
She has been backed in the effort by Mr. Cameron, who has told Parliament that Mr. Othman’s continued presence in Britain has made him “sick to the stomach,” and that the day of his deportation would make him “one of the happiest men in Britain.”
The treaty that cleared the way for Mr. Othmans’s deportation, just ratified by Jordan, includes provisions against the use of torture-tainted evidence in the new terrorism trial that the cleric, who is of Palestinian descent, faces in his native country

Mrs. May, with overall responsibility for policing and internal security in Britain, has made the effort to deport [the cleric] a personal priority. She has twice visited Jordan, meeting with King Abdullah II and other senior Jordanian security officials, in an effort to complete negotiations on a treaty that would clear the way for his deportation.

The treaty that cleared the way for [Qatada's] deportation, just ratified by Jordan, includes provisions against the use of torture-tainted evidence in the new terrorism trial that the cleric, who is of Palestinian descent, faces in his native country."

According to the Times, the risk of torture and the introduction of torture-tainted evidence in Jordan was "at the core of [Qatada's] battle to remain in Britain." After years of negotiations and legal battles, Jordan agreed to "new constitutional guarantees" and the presence of a Jordanian human rights organization at every stage of the criminal proceedings in Jordan.

Brava to Mrs. May, our first Negotiation Shero! Remember, negotiation is a skill, not a secondary sexual characteristic. There's no genetic marker for the creativitivity, knowledge, wisdom and people skills necessary to close any deal.

If you have nominations for Negotiation Sheros in the News, please pass them along to me using our contact form or use the comment space to nominate a negotiation shero, along with your reasons why they should be lauded here.

Remember, if we do not make ourselves visible, we will remain invisible as negotiators, leaders, and power brokers locally, nationally and internationally. No one will do it but us.

For more recommendations on making ourselves visible leaders, see my recent article in the ADR Times, The Invisible Woman: Our ADR Problem

The Taliban Cafe - War, Peace and Reconciliation

Today's good news from the New York Times - the Taliban has opened a political office in Qatar to recommence peace negotiations 18 months after it walked out of talks with the U.S., accusing it of negotiating in bad faith.

Today's bad news from the same source -"less than 24 hours after the Taliban opened [that] office . . . the Afghan government . . . backed away from even starting discussions with its adversaries and broke off talks on future military cooperation with the United States."

Then the Taliban killed four Americans.

PEACE TALKS AND HONOR CULTURES

The prerequisite for the commencement of open negotiations - a foundation for trust - has not yet been built despite three years of secret meetings and back channel ground work laid by the warring and allied parties.

Anyone seeking a better understanding of Middle East politics should be attending to the coverage of the Boston Mob Trial premised largely on organized crime's "honor culture" - a culture whose survival depends upon disproportionate responses to minor slights and border intrusions.

As Malcolm Gladwell explains in Outliers, where the rule of law is weak and the people nomadic and hence far from state-sponsored police power, the appearance of mutually assured destruction is the only way to keep one's family, one's tribe, or one's nation-state safe from attack. The Southern United States is also an honor culture, as are street gangs, men locked inside prisons and most criminal enterprises.

Why We Won't Soon Have a Taliban Restaurant

No matter how bleak the prospect of peace, history teaches us not only that it will arrive but that it will be quickly followed by forgiveness and reconciliation. Americans, short of historic wounds (African and Native American societies aside) forgive so quickly that war with foreign enemies is generally followed by reconstruction and an explosion of new restaurants opened by war-time refugees.

Italian, German, Japanese, Korean, Vietnamese.

We even forgave the attack on Pearl Harbor. 9/11 will take a lot more time.

These are the peoples who the U.S. has so recently considered an existential threat to our way of life. But there's something about America - vital, fractious, transparent, tolerant, forgiving, and above all else, commercial, that allows us to set aside ancient grudges while dining on our former sworn enemies' cuisine.

The time has not yet come for the Taliban but there are good signals coming from the Middle East, like the recent election of a moderate Islamic President in Iran. Like the way the Taliban signalled a readiness to talk peace even while spinning its new office in a way that signalled a strike for legitimacy threatening to the Karzai-headed government. Hence, today's bad news right after the good. I understand, however, that the peace talks will nevertheless recommence, at least at this writing.

As much as we'd all like to believe that raw, brutal retaliation against our enemies is the only road to peace, decades long hurting stalemates of the type we've been fighting in Iraq and Afghanistan can only be broken by the first gilimmerings of enlightened self-interest.

What We Can Do

It may take 20 years or 40, but rest assured, our grandchildren or their children will one day be dining at the Taliban Cafe.

As the great conflict resolution resource, Beyond Intractbility explains,

Eventually, conflicts reach a point at which a sort of equilibrium sets in, in which neither side is getting any closer to achieving its goals and which no one is happy with the situation. They come to realize that the costs of continuing the struggle exceed (oftentimes greatly exceed) the benefits to be gained. This is the situation known as the "mutually hurting stalemate" which is often ripe for the introduction of proposals for settlement.

That's not prescriptive. It's descriptve. It's what we do.

At a recent dispute resolution training at a troubled non-profit organization, one of the managers asked this question - "is the solution sometimes to simply let the organization fail?"

A great question and one with a rare "yes" or "no" answer.

Yes, it's sometimes necessary for the old order to fail so that a new order can spring up in its place. Eventually, we will all give up out-sized retaliatory responses to minor slights even though our own do not include (spoiler alert) killing a sitting U.S. Supreme Court Justice, attempting to assassinate the President of the United States, or blowing up an office of seven people to cover up the fact that you rigged the national election. (Scandal).

Try every negotiation tactic before you resort to retaliating against your own actual or presumed enemies and I'll meet you later at the Taliban Cafe.

What Women Really Want - Negotiating Peace

(reprinted from the ForbesWoman She Negotiates Blog)

Let us be crystal clear from the start. It’s never ever more Tomahawk missles.

As the U.N. Women’s War and Peace page reports:

While women remain a minority of combatants and perpetrators of war, they increasingly suffer the greatest harm.

In contemporary conflicts, as much as 90 percent of casualties are among civilians, most of whom are women and children. Women in war-torn societies can face specific and devastating forms of sexual violence, which are sometimes deployed systematically to achieve military or political objectives. Women are the first to be affected by infrastructure breakdown, as they struggle to keep families together and care for the wounded. And women may also be forced to turn to sexual exploitation in order to survive and support their families.

Negotiating Peace

If you haven’t seen the gut-wrenching and inspiring film documenting the women’s peace movement that ousted warlord turned President Charles Taylor from Liberia and ushered in a period of peace, find a way to see Pray the Devil Back to Hell at the earliest possible opportunity.

The kidnapping of children for use as soldiers, bloody attacks on the civilian population and the complete breakdown of civil society finally caused Liberian women to “snap.” They formed a peace movement supported by both Christian and Muslim women. They were not hindered by the scorn and derision that greeted their daily presence in the public square.

The teaching moment for women negotiators in this shattering film was the peace activists’ refusal to appoint one of their number to sit at the negotiation table. Though I do not recall the precise dialogue, the gist of the women’s response was this: one woman will be ignored or co-opted. We are more powerful among our sisters outside the building pressuring the men inside.

The strategy was successful. Taylor was dispossessed of power as a deal point brokered in the ensuing peace treaty.

On 23 November 2005, Ellen Johnson Sirleaf was elected President of Liberia.

That’s powerful negotiation for change, ladies!

Directed by Gini Reticker; director of photography, Kirsten Johnson; produced by Abigail E. Disney; released by Balcony Releasing. Running time: 1 hour 12 minutes. This film is not rated.

Resources on Women and Negotiation in Honor of Women's History Month

I'm sure you've noticed that we're celebrating negotiating women here this month in honor of International Women's Day and National Women's History Month.  Other than tomorrow night's free negotiating women teleseminar with super coach Lisa Gates, I'm celebrating by posting in one place all of my articles on negotiating women.

The Power of Beauty

Nature gives you the face you have at 20; it is up to you to merit the face you have at 50. -- Coco Chanel A local judge who has four beautiful young law students working for him this summer...

Tips from Forbes & a Word with Women: Negotiate Your First Salary

If you're entering the job market, you'll want to check out Forbes' Magazine's Tips for Negotiating Your First Salary. If you do not negotiate your first salary, you stand to lose half a million dollars over...

Ask for It: How Women Can Use the Power of Negotiation to Get What They Really Want

I didn't realize until I got onto the plane out of Seattle that Linda Babcock and Sara Laschever -- our morning plenary session speakers (Women Don't Ask: Negotiation and the Gender Divide) -- have written a new book -- Ask...

Negotiating Your Mid-Life Career Crisis with Career Coach Lisa Gates

Practicing law, particularly litigation, is often frustrating, sometimes humiliating, and frequently simply dispiriting. On the other hand, the practice of law can be thrilling, intellectually stimulating, challenging, absorbing, and a darn good way to make a good living. When you...

Is Hillary Negotiating Her Withdrawal? So Says Cokie

From Women on the Web's Conversation Today Cokie Roberts: 'Hillary Is Negotiating Her Withdrawal' with Lesley Stahl Q&A with ABC News correspondent Cokie Roberts. Excerpt below: LESLEY: Let’s talk about Hillary. I’m wondering, how do you explain..

Must Read for All Women Negotiating Law Firm Life

Below is my review in The Complete Lawyer of Lauren Stiller Rikleen's must-read book Ending the Gauntlet: Removing Barriers to Women's Success in the Law. Concluding paragraph: At bottom, this book calls for management practices that will benefit all attorneys...

Clinton Speaks on 88th Anniversary of Women's Suffrage

(Right, women protesting, 1912. My own grandmother was 12 years old at the time this photo was taken. By the time she was old enough to vote in 1921, she could vote) Why women's voting rights and Hillary Clinton's DNC...

Negotiating Women at ForbesWoman

If you're a certain age, you'll remember women's magazines as mostly "Can This Marriage Be Saved" (The Ladies Home Journal to which PWNSC members Cathy Scott's and Cordelia Mendoza's mother was always submitting articles) or 101 Things to do with...

Negotiating Against the Grain of Gender

Yesterday, we talked about the different negotiation styles of men and women. Today, we're going to explore how men can benefit from learning women-speak and women can benefit from learning man-talk. All of the data relied upon and excerpted below...

Negotiation 101: Gender War or Gender Peace and Prosperity?

Although I am indisputably a "woman lawyer," I have never thought of myself in those terms. I'm a lawyer. And I'm a woman. I'm also a writer, a step-mother, a wife, a daughter, a river rafter, and an aficionado of...

Negotiating Women on New Day Talk Radio Easter Sunday Noon

(and, yes, I am not only old enough to remember the "Second Wave" Women's Movement, I took a quite serious role in it, first as an unpaid volunteer and later through the federal government's "Program for Local Service" at...

Negotiating Women: 5th and Final Part

Thanks again to Vicki Flaugher of SmartWomanGuides.com for inviting me to have this conversation with her about ways in which women can and do maximize their bargaining power. And yes we do talk about negotiating the purchase of an automobile...

Negotiating Women Part III

This segment of my interview with Vicki Flaughter is primarily about why women don't negotiate - to their substantial economic detriment - (see Women Don't Ask Here) and what they can do about it....

Negotiating Women Part II

In part two of Vicki Flaugher's interview with me, we discuss ways in which women can comfortably respond to aggressive zero-sum distributive bargainers and negotiate better business deals using their natural strengths. I'd like to once again thank Vicki Flaugher...

Negotiating Women: Never Negotiate Out of Fear, But Never Fear to Negotiate --

Video below is part I of an interview on negotiation challenges, strategies and tactics for women with Vicki Flaugher, founder of SmartWoman Guides. The full audio of the video is here along with Ms. Flaugher's kind comments about our conversation....

Negotiating Women: Free Teleseminar at Craving Balance

How to Negotiate Anything: Free Intro Thursday, Mar 18, '10 8pm EST Some researchers say that women's failure to negotiate working conditions, salary or other compensation--along with their hesitancy to seek what they're worth when they do negotiate--is one of...

Women Bloggers Proclaim National Women's History Month

Whereas American women of every race, class, and ethnic background have made historic contributions to the growth and strength of our Nation in countless recorded and unrecorded ways; Whereas American women have played and continue to play a critical...

Update on Gender Diversity in the Judiciary and in ADR

When I posted Negotiating Gender: Why So Few Women Neutrals? I had not yet found a source for the statistical representation of women neutrals on the American Arbitration Association Panel. I've now located an article on the AAA website from...

Negotiating Gender: Why So Few Women Neutrals?

Although most of the major providers of alternative dispute resolution services tout their commitment to diversity in the ranks of their neutrals, the coloration of nearly all ADR panels continues to be white; the nationalities European; and the gender male....

Women, Negotiation and the Persistent Wage Gap

Thanks to Ed. at Blawg Review for passing along this (somewhat rambling but well worth watching) lecture at Stanford University by Deborah Kolb, the Deloitte Ellen Gabriel Professor for Women and Leadership at the Simmons College School of Management....

 

Harvard Mediation Goes to Iraq

Community mediation in Iraq?  You betcha.

Some successes are small. He described one mediation between two families: one household with young girls built a privacy wall that blocked sunlight from reaching the neighbor’s house. They had argued for months, and were close to blows. A mediator helped them cool down, and get away from their hardened positions. They came up with a solution: The family that built the wall paid for a skylight for the neighboring house.

See Iraq latest crucible for Harvard mediation - negotiations solve tribal disputes at the Boston Globe.

As Ken Cloke mentions in the slide show posted yesterday, these dispute resolution mechanisms are scaleable - the same process works on neighbor disputes as it does on disputes among nations.

 

Conflict Revolution: Mediating Evil, War, Injustice and Terrorism by Dr. Kenneth Cloke

I spent my day Saturday at the annual convention of the Southern California Mediation Association (kudos to attorney-mediator Phyllis Pollack for a fabulous conference!)  Ken Cloke spoke eloquently on conflict systems and what mediators can do to "save the planet."  I took his presentation (characteristically and densely verbal) and added images to break up the text hoping that Ken won't mind supplementing the English language with pictures).

I highly recommend Ken's presentation (which was incredibly eloquent at the conference and not limited by the hard bruising text against text can do) as well as, of course, his brilliant and visionary book - Conflict Revolution.

 

 

Mediators and Industry Knowledge, Game Theory and Understanding Conflict

Check out the range of opinions among litigators' clients on this still-hot topic in mediation circles over at the Business Conflict Blog (quickly becoming one of the most indispensable commercial mediation blogs on the web):  Should Mediators Be Expert in the Field of the Dispute?  Excerpt below.

Patrick Deane of Nestlé is senior counsel to the largest food company in the world, and the disputes he runs into involve distributors, retailers, suppliers and consumers in every part of the globe.  His ideal mediator combines logic and intuition; a concern for detail; and the knack of an epatheic listener.  He noted that commercial disputes — even financial ones — are seldom dry, but instead involve personalities, risk of loss of face, and other human attributes just as much as more personal claims do.  The question of subject-matter expertise was of little importance to Deane, compared to these essential qualities in a mediator who must be expert in a process that, at heart, is aimed at cost effectiveness.  “A lack of industry expertise has never caused a failure of the mediation process.

I must admit that when Tim Hughes (@vaconstruction) -- he of the Virginia Real Estate, Land Use and Construction Law blog and an avid ADR watcher -- tipped me off to this post, I read the question as asking whether mediators should be experts in the "field" of conflict - rather than in the industry in which the disputants are involved.

Here's my opinion (as if you didn't already know).  As Colin Powell says, the most important knowledge to have in international negotiations is the other guy's decision cycle.  I imagine the great predictor, the political scientist and Hoover Institute Fellow  Bruce Bueno de Mesquitas would say something along the same lines (see TED lecture below).  See also the NYT piece, Can Game Theory Predict When Iran Will Get the Bomb?

What is the "other guy's" decision cycle?  It is comprised of every interest he must satisfy and every person he is accountable to for the foreseeable (and probable unintended) consequences of that decision.  Personal injury attorneys turned mediators are well acquainted with the decision cycles of both Plaintiff and Defense counsel as well as with the interests, needs, and desires of injured Plaintiffs, on the one hand, and insurance adjusters and their supervisors on the other.  Employment attorneys turned mediators are also deeply knowledgeable about the decision cycles of counsel on both sides of the table (one usually specializing in employees and the other in employers) as well as with the interests, needs and desires of terminated, demoted, or harassed employees on the one hand and of employers - both large and small - who often feel as if the Plaintiff is little better than a highway robber.  Judges turned mediators are better acquainted than anyone else of the decision cycles of juries -- a jury verdict being the alternative to a negotiated resolution.

(Chart from Cultivating Piece)

You knew I'd come to my own "specialty" knowledge.  Some of it is industry specific -- insurance and  financial institutions, for instance, and the garment, manufacturing, health care, commercial real estate, construction, and technology industries.  Though my experience in these fields adds some value to my commercial mediation practice, what I'm most skilled at is knowing the decision cycles of commercial litigators and their business clients.  I understand, for instance, the clients' reporting relationships; the metrics against which their performance and that of their corporate superiors are measured; the impact of SEC reporting requirements in "bet the company" litigation; and, the effect settlements in nine or ten figures might have on upcoming plans for mergers or acquisitions. 

I can read a financial statement. 

At a minimum, I can ask the questions necessary to obtain the knowledge required to ascertain the interests that must be satisfied by both parties to transform the litigation into an opportunity to make a business deal.  And I know how to make the commercial clients happy with their attorneys' final resolution of the business problem burdened with the justice issue that brought the case into court in the first instance.

I am also schooled in the "field" of conflict resolution.  I understand at depth the cognitive biases --  universal tendencies in the way we think -- that inhibit rational decision making.  I know how conflict escalates and, more importantly, how it can be deescalated.  I understand the role emotion plays in decision making (particularly the emotion most common among business litigation clients - anger);  the gentle (and not so gentle) art of persuasion and, perhaps most importantly, the optimal negotiation strategies and tactics for the business problem at hand.

And, I know in the knuckles of my spine what keeps commercial litigators awake at night, worrying about the next strategic, tactical, legal or extra-legal move to make; how to explain to the client that the case has suddenly gone south; and, how to deliver that bad news to the client in a way he or she can hear it and successfully report it to the GC, the CEO, the Board of Directors or e ven the shareholders. 

I know this sounds like a lot of boastful self-promotion (it is).  Please don't take my word for it.  Anyone charged with finding, retaining and hiring a mediator to assist the parties in resolving a piece of hard-fought, sophisticated, complex commercial litigation would do well to check with his or her peers on any mediator's boastful self-appraisals.

This is what I recall of mediator-hunting, however.  I'd send out a list to my colleagues.  I'd invariably get back opinions that were all over the board.  He/she is great with clients but usually ends up splitting the baby in half.  He/she talks too much and listens too little.  He/she marginalized the client and made me look bad.  He/she charges $15,000 per day and is one of the go-to mediators for this type of case but I was unimpressed, as was the client.  This guy/gal can settle anything.  Brilliant.  Magical.  

So what's a beleaguered litigator to do?  Ask people you respect both inside and outside your law firm.  Ask how the mediator handles the "process dimensions" of the mediation.  Does he/she simply carry numbers and rationales back and forth between separate caucus rooms.  Can she give bad news to both sides.  Can he go beyond positional, zero-sum bargaining and into interest-based negotiated resolutions?  Is the client happy with the result and with the process?  After you've done this basic research, call the mediator yourself and ask him/her about the way in which she/he might handle the mediation of the particular matter you need to have resolved.   You should not only have the best information possible in making your choice, you should get a fair amount of terrific free advice and external brain-storming along the way.

I really just meant to cite the Business Conflict Blog and get back to revising The ABC's of Conflict Resolution - my second draft due on October 30.

So what's my answer to the question whether the mediator should have industry knowledge?  That answer lies, as most legal problems do, in the gray zone.  Industry knowledge helps.  But every commercial litigator knows that we can learn any industry if we have a basic understanding of how commercial enterprises work.  That's what I know -- commercial litigation -- and it is the reason I don't mediate personal injury or employment disputes with anyone below the rank of senior executive.  I don't know the right questions to ask and I don't know -- at depth -- the parties' or counsel's decision cycles. 

I can learn, but if you called me for a personal injury or employment mediator, I wouldn't recommend myself - I'd recommend someone like Janet Fields or Nikki Tolt at Judicate West (personal injury) or Deborah Rothman, Jay McCauley or Lisa Klerman at their own mediation shops (employment). 

For commercial mediation, I'd recommend the usual suspects (including, of course, myself) and Jeff Kichaven, Eric Green, Jay and Deborah, Ralph Williams (at ADR Services, Inc.), George Calkins and Jerry Kurland at JAMS (complex construction litigation); Les Weinstein (IP, particularly as an arbitrator); Mike Young (Judicate West and Alston + Bird); and, John Leo Wagner (Judicate West). 

I know I've left a lot of fine mediators out of this list but these are the ones who immediately spring to mind because I either have personal experience as a client or co-mediator or I have it on the authority of my husband, Stephen N. Goldberg, formerly at Heller and now at Dickstein Shapiro (author of the Catastrophic Insurance Coverage blog).

Enough!  Off to the real brains at hand -- Bruce Bueno de Mesquita at TED.

Blawg Review #234

Sociologist Elise Boulding has said that we live in a “200 year present,” a “social space which reaches into the past and into the future” -- a space in which “we can move around directly in our own lives and indirectly by touching the lives of the young and old around us.” Miall, Ramsbotham and Woodhouse, Contemporary Conflict Resolution.

What does the 200-year present have to do with conflict resolution week?  It reminds us that new forms never really completely replace the old ones.  We continue to employ every technique we've ever used to suppress, avoid, deny, resolve, transform, or transcend conflict, including force (violent and non-violent such as injunctions subject of a Trial Warrior Blog post this week); thievery (the Trade Secrets Blog); shaming (which Scott Greenfield does to bloggers "looking for fights and dumb as dirt" and which Volokh suggests we do to health insurers); bullying (solutions to which appear at the Citizen Media Law Project); torture (still with us at the Crim Prof Blog); cheating (Make Yourself Better with Their Secrets at Concretely Ambiguous) ingratiation (at the Law School Expert); persuasive argumentation; appeal to third party authority; bargaining; communication; and, problem solving (The Tao of Advice at the Business of Creativity). 

Whichever dispute resolution mechanism you use, it should be much improved if you take up  juggling (as reported this week at Idealawg).

Transformative conflict resolution of the type covered by New York City police officer, Jeff Thompson at Enjoy Mediation, requires accountability (by lawyers, for instance, to the principle of justice at Law21); recognition (at JD Bliss); apology, amends, reconciliation (at Opinio Juris); power with (negotiation and cooperation at the Ohio Family Law Blog) instead of power over (at the Election Law Blog); and, interests rather than rights (at the Gay Couples Law Blog).

No brand of law-giver or enforcer has ever entirely left the scene.  Cops, negotiators, mediators (on the international scene at the Business Conflict Blog); conciliators, arbitrators, trial attorneys (marking tattoos as exhibits over at LawComix), corporate lawyers, legislators  (fomenting a Franken Amendment at the ADR Prof Blawg); judges (whether elected or appointed at Legally Unbound), and, juries (who might be biased at SCOTUS Blog). 

And of course the gadflies (wolf protection lawsuits anyone? at  Point of Law). 

Win, lose, settle, enjoin (at Charon QC) or simply give up (6 Ways We Gave Up Our Privacy at CSO Security and Risk).  We regulate crime and prescribe punishment (Polanski at Sentencing Law and Policy and The End of an Era at Defending People). 

We wage war (at Prawfs Blog) and seek peace (at the Delaware Employment Law Blog) as conflict inevitably erupts over Obama's (embarrassing) peace prize (at Balkinization).

And, lest we forget our primary purpose, we bend our efforts toward justice (which, according to BLT is not necessarily available to card-carrying members of the ACLU).

My own personal 200-year present spans the life of my maternal grandparents who were nine years old in 1909, and that of my step-children’s children, who (assuming they procreate on a reasonable schedule) should be ninety-five'ish in 2109

My grandfather, born in 1900, witnessed the birth of electricity, saw the first automobile roll off an assembly line [2] and stood awestruck in a cornfield as one of mankind’s first airplanes took flight. [3]  Although we've progressed from bi-planes to jets and rockets (some of which may someday be green) we still fly balloons of the type first launched in 1783 -- both Goodyear Blimps and the backyard variety, covered this week by Legal Blog Watch as Law and More

asked here whether the shiny, flying, silver Jiffy Pop-looking craft tethered in the backyard of Richard Heene was an "attractive nuisance" under the law.

Grandpa's first war was, well, the First and his second was the Second,[4]  as if there'd never been any wars before the Great One. By the time I was born, mid-century, we'd fought the war to end all wars twice and knew we'd never survive a third

My imagined grandchildren, [6] born sometime between today and 2014, will not be strangers to any of my grandfather’s technologies. Despite the advent of compact fluorescent light bulbs, the early lives of my step-children's children will likely pass under the glow of the same incandescent lights that brightened granddad’s one-room school house. They will be transported to school in cars with internal combustion engines, learn the same alphabet from the same cardboard and paper books (as well as from the "e" variety) [7] and play many of the same games [8]  he did – hop scotch, jump rope and ring-around the rosy. 

Change will etch itself into the lives of my grandchildren as surely as it did my own, my parents' and my grandparents'.  Hybrids will give way to fully electric (and perhaps hemp-powered) [9] vehicles (effective or defective) and though electricity will continue to be  generated by hydroelectric dams, wind farms and nuclear power plants, some new and unimaginable source of power will surely push back the nights of my grand children's children. [10]

Law, politics, society and culture also exist in the 200-year present of conflict resolution.  [11] In my personal 200-year span, the law seems to have changed the most profoundly. Was it the law first and culture later?  Or do they weave our future together?

The first U.S. woman lawyer, Myra Bradwell, was admitted to practice a mere ten years before my grandmother was born. Mrs. Bradwell’s legal career was the subject of one of the sorriest U.S. Supreme Court decisions ever handed down, in which the Court opined,

The civil law as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender.  The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea for a woman adopting a distinct and independent career from that of her husband … for these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of any abridging any of the privileges and immunities of cities of the United States.

[12]

Another nineteen years would pass after Bradwell began her practice before she (and my nineteen year old grandmother) were guaranteed the right to vote. [13] And another 30 years would pass after my women's movement -- the Second Wave -- before we'd have our own  business magazine -   ForbesWoman (my part in it here).  And let us not forget that despite the 20th Century's great civil rights achievements, when America catches a cold, black America gets pneumonia.  See e.g. Problems All Around for Blacks in Big Law at Being a Black Lawyer.

My grandparents', parents' and step-children's 20th Century was dominated by genocide [14] on a scale and a technological precision unimaginable to our earlier forebears.  Mid-century brought with it the threat of nuclear annihilation but also liberated millions of people enslaved by colonialism.  We cured polio in my own lifetime with both "dead" and "live" vaccines (neither of them counterfeit) - a singular moment in scientific history during which no one took ownership of the cure and no one tried to stop others from seeking another, a problem Patently O addressed this week in Reverse Payments.

Whether god or satan, heaven or hell, war or peace "won" the twentieth century, the world's greatest peace-making body was created during it -- the United Nations.  And here in the U.S., the “living room war,” Viet Nam, coupled with the largest generation of adolescents ever to grace American society, ended the forcible induction of young men into the military[15]

With the recent discovery of our earliest ancestor, Ardi, our biological and social lives exist in a 4.4 million year now. Our physical bodies “evolve” in the womb along the same lines as did our species and, once born, we carry with us our earliest organs. [16] Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala.[17] And the most pertinent biological agents to promote the collaborative resolution of conflict are our “mirror neurons” which

 provide a powerful biological foundation for the evolution of culture . . . absorb[ing] it directly, with each generation teaching the next by social sharing, imitation and observation.

 [18]

As “exquisitely social creatures,” our “survival depends on understanding the actions, intentions and emotions of others.” Id. That our misunderstandings and cognitive biases -- mentioned by Volokh on Paternalism and Michael Carbone on reactive devaluation at Mediation Strategies this week -- threaten our survival as a species is undeniable (cf. Lawyers Must Survive or Face Extinction at the Lawyerist)

How we’ve manage to survive despite our tendency to misread one another’s actions, intentions and emotions, is often the subject of those who advise us how to choose and move juries -- here -- Anne Reed at Deliberations (explaining why "they" don't see things like "we" do here); and, the Jury Room (explaining why pain hurts more intensely when we believe it's been intentionally inflicted here). 

The Most Effective Conflict Resolution Technology is the Oldest

One of our true original gangsters, Al Capone, is reported to have said that “you can get much further with a kind word and a gun than you can with a kind word alone” and one of our greatest Presidents, Theodore Roosevelt said “speak softly and carry a big stick.”

Capone and Roosevelt didn't know it, but they were talking about the most effective (and most ancient) form of conflict resolution – tit for tat. In 1980, political Scientist Robert Axelrod asked game theory experts to submit computer programs designed to prevail in a game that provided the highest reward to cooperating pairs -- the famous Prisoner's Dilemma. (See also Max Kennerly's excellent post on Game Theory and Medical Malpractice Settlements at the Philadelphia Litigation and Trial Blog).

The winner of Axelrod's competition was a program named tit for tat.  Tit for tat was programmed to cooperate [19]  with its first encounter with any other programmed player.  It  rewarded cooperation with cooperation (just as networking will reward the savvy lawyer over at Chuck Newton's Ride the Third Wave) and punished non-cooperation with retaliation. Because Tit for Tat retaliated in the face of non-cooperation (just as a former employee did according to Hell Hath No Fury at Chicago Law Blogger) it was never repeatedly victimized. And because Tit for Tat “forgave” non-cooperators upon their return to cooperative game playing (as some believe Mr. Polanski should be forgiven over at the Marquette U. Law School Faculty Blog) it never got locked into mutually costly chains of mutual betrayal. [20]

As Robert Wright, author of The Moral Animal explained, had Tit for Tat been tossed into the game with 50 steadfast non-cooperators, there would have been a 49-way tie for first place. But none of the players' programs failed to cooperate in at least some circumstances, leaving Tit for Tat the clear victor.  According to Wright, humans, like the programs in Axelrod's competition, are evolutionarily “designed” to cooperate under at least some circumstances. The engine and benefit of cooperation is present in our neurochemistry.  When scientists observed the brain activity of volunteers playing the Prisoner’s Dilemma game, for instance, they found that the participants' “reward circuits” were activated and their impulsive "me first" circuits inhibited when they cooperated. Cooperation, retaliation, forgiveness and a return to cooperation. Tit for Tat. 

Laws and Lawyers

First and most importantly, I suppose, are the social media signs that you're "tweeting" like a lawyer over at the Social Media Law Student Blog.  Why first or important?  Know thyself.  Everything else follows that.

We don't "dis" lawyers here at the Negotiation Blog.  We simply remind ourselves that our primary purpose is the promotion of justice, with a stable societal order closely behind.  Most people don't understand, for instance, that Shakespeare's famous the first thing we do, let's kill all the lawyers was not an insult.  In King Henry IV, Act IV, Scene II, Shakespeare's sentiment was not his own, but that of a revolutionary who wished to destroy the social order.

The historic "present" of laws and lawyers is in the thousands, not simply the hundreds, of years. Hammurabi (make of his choice for the memorialization of his laws what you will) was the sixth king of Babylon, remembered for creating -- in his own name (and likeness?) - the first written and systematic legal code. 

These laws provided for a mix of physical punishment - 60 lashes with an ox hide whip - ‘measure for measure’ awards (still with us in the form of lethal injection as covered by The StandDown Texas Project) – eye for eye, bone fracture for bone fracture – and monetary compensation – 20 shekels for tooth injuries – (preserved by workplace injury awards such as those discussed at the Workers Compensation Blog) depended not only upon the type of injury, but the social classes involved in the loss, i.e., ‘measure for measure’ sanctions were specified for losses among the upper classes while monetary awards were required for losses caused to and by commoners (reminding us that disrespect still too often turns on social status or "outsider" classification as discussed at Balkinization this week).  [23] 

For the wrongful killing of another, for instance, the victim’s kin were paid according to the social status of the deceased party. Thus the ‘man price’ for killing a peasant was 200 shillings and that for a nobleman 1200 shillings. Payments were not, however, tailored to the loss, but fixed according to types of affront, a distinction we continue to make when we punish intentional torts more severely than negligent ones.  [24]>

Criminal law and civil, it all comes down to a process that is "due" (a topic covered in a blistering post about tea-partiers and other "protectors" of the Constitution at the Criminal Jurisdiction Law Blog) and a set of guidelines against which we can exercise some small degree of control over our own commercial and personal futures (like those subject of Delays Not "Party Time, Excellent" for Subcontractor at the Construction Contract Review).

Lawyers, litigators and trial lawyers are too often demonized by the ADR community as if you could get someone to sit down to negotiate without first pointing the gun of litigation at their heads; I salute you (and myself, for that matter!) for bringing us all to the bargaining table.  See Steve Mehta's recent post at Mediation Matters, Factors When Peace Makes Sense for a note that touches upon the symbiotic relationship between litigation and mediation, litigators and mediators.

I shouldn't cite single legal blogs twice, but I cannot resist this quote of Scott Greenfield's on another pundit's view of the future lawyers have in store for them, i.e., 

shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.

Legal Rebels:  the Sky is Falling at Simple JusticeCharon QC also weighs in on the ABA Legal Rebels project here.

Arbitration

Which came first? Public civil trials or private arbitrations? You’ll be surprised, I’ll wager, to hear that arbitration was one of the earliest forms of dispute resolution, practiced by the juris consults of the Roman Empire. Roman arbitration predates the adversarial system of common law by more than a thousand years. [25]

Ah, the glory of Rome! The juris consulti were (like too many mediators) amateurs who dabbled in dispute resolution, raising the question whether they (and we) should be certified or regulated as Diane Levin asks at The Mediation Channel this week.  The Roman hobbyists gave legal opinions (responsa) to all comers (a practice known as publice respondere). They also served the needs of Roman judges and governors would routinely consult with advisory panels of jurisconsults before rendering decisions. Thus, the Romans – god bless them! - were the first to have a class of people who spent their days thinking about legal problems (an activity some readers will recall Ralph Nader calling "mental gymnastics in an iron cage").

18th Century Dispute Resolution Technology:  The (Inevitably Polarizing) Adversarial System

It was Buckminster Fuller who famously opined that the "significant problems we face cannot be solved at the same level of thinking we were at when we created them."  If you keep this aphorism in mind for the remainder of this post, you'll likely have some extraordinarily innovative comments to make in the comment section below.

As the Law Guru wiki reminds us, we can trace the adversarial system to the "medieval mode of trial by combat, in which some litigants were allowed a champion to represent them."  We owe our present day adversarialism, however, to the common law's use of the jury - the power of argumentation replacing the power of the sword.

The Act abolishing the infamous Star Chamber in 1641 also granted every "freeman" the right to trial by "lawful judgment of his peers" or by the "law of the land" before the Crown could "take[] or imprison[]" him or "disseis[e] [him] of his freehold or liberties, or free customs."  Nor could he any longer be "outlawed or exciled or otherwise destroyed."  Nor could the King "pass upon him or condemn him." 

English colonies like our own adopted the jury trial system and we, of course, enshrined that system in the Fifth, Sixth, and Seventh Amendments.  Whether this 17th century dispute resolution technology can be fine-tuned to keep abreast of 21st century dispute creation technology (particularly in the quickly moving area of intellectual property) remains one of the pressing questions of legal and ADR policy and practice, particularly in a week in which a Superior Court verbally punished the lawyers before it for filing The Most Oppressive Motion Ever Presented (see the Laconic Law Blog).  The motion? 

Defendants['] . . . motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication.  Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded.  And the moving papers concluded with a request for judicial notice of 174 pages.  All told, defendants’ moving papers were 1056 pages.

Id. (and ouch!)  On a less Dickensian note (think Bleak House) take a look at the IP Maximizer's post on IP litigation not being smart source of revenue for inventors

Mediator, author and activist, Ken Cloke, suggests that interest-based resolutions to conflict must replace power and rights based resolutions if we expect to create a future in which justice prevails.  As Ken wrote in Conflict Revolution:

Approaching evil and injustice from an interest-based perspective means listening to the deeper truths that gave rise to them, extending compassion even to those who were responsible for evils or injustices, and seeking not merely to replace one evil or injustice with another, but to reduce their attractiveness by designing outcomes, processes, and relationships that encourage adversaries to work collaboratively to satisfy their interests.

Evil and injustice can therefore be considered byproducts of reliance on power or rights, and failures or refusals to learn and evolve.

All political systems generate chronic conflicts that reveal their internal weaknesses, external pressures, and demands for evolutionary change. Power- and rights-based systems are adversarial and unstable, and therefore avoid, deny, resist, and defend themselves against change. As a result, they suppress conflicts or treat them as purely interpersonal, leaving insiders less informed and able to adapt, and outsiders feeling they were treated unjustly and contemplating evil in response.

As pressures to change increase, these systems must either adapt, or turn reactionary and take a punitive, retaliatory attitude toward those seeking to promote change, delaying their own evolution. Only interest-based systems are fully able to seek out their weaknesses, proactively evolve, transform conflicts into sources of learning, and celebrate those who brought them to their attention.

These are the words I leave with the readers of Blawg Review #234 because they are the ones that informed my personal and professional transformation from a legal career based on rights and remedies to one based upon interests and consensus. 

Whatever my own personal 200-year present was, is and will be, it is pointed in the direction of peace with justice, with an enormous and probably unwarranted optimism best expressed by the man after whom my law school was namedMartin Luther King, Jr.  - the arc of history is long, but it bends toward justice.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Next week's host, Counsel to Counsel, will devote its round-up of the week's best legal posts to the Great Recession.



[1]             See the WSJ Law Blog’s post on the evolving law on gay marriage this week – Procreat[ion] Not Required.

[2]             Alas, there will always be lemons over at the Texas Lemon Law Blog (save those repair invoices!)

[3]             See Ruth Bader Ginsberg Hospitalized at the Volokh Conspiracy, reporting on Ginsberg’s fall from the seat of an airplane before take-off.

[4]             See the Law History Blog on Brewer’s Why America Fights.

[6]             Grandchildren who will not, I hope, have to deal with my Alzheimers, the perils of which are described at the Slutsky Elder Law and Estate Planning Blog.

[7]             Though, of course, e-books will be read side-by-side with hard copy as paper and cardboard eventually goes the way of Colonial era hornbooks. See Downloadable e-Books Change the Face of Brick and Mortar Libraries at the Law Librarian Blog.

[8]              Those games will, of course, exist side by side the video variety, many of which are recommended as Tools for Special Needs Students and Educators at the Adjunct Law Prof Blog this week.

[9]               See Hemp and Audacity at the U.S. Ag and Food Law Policy Blog.

[12]             Alas there’s still a gender gap as described this week at Ms. JD.

[13]             Voting rights are still a matter of concern today, of course. See Judge Says Virginia Violated Rights of Overseas Voters at the Blog of Legal Times.

[14]             See Rachel Anderson’s Law Blog on the scope of immunity for foreign officials that Anderson believes may have important implications for Plaintiffs seeking recompense for genocide.

[15]             One generation wants out and the other wants in. See Don’t Ask, Don’t Tell, Don’t Teach at Sexual Orientation and the Law Blog.

[16]             Earlier scientific theory posited that each human embryo (see Embryo Mix-Up at the Proud Parenting Blog) passes through a progression of abbreviated stages that resemble the main evolutionary stages of its ancestors, i.e., that the fertilized egg starts as a single cell (just like our first living evolutionary ancestor); as the egg repeatedly divides it develops into an embryo with a segmented arrangement (the “worm” stage); these segments develop into vertebrae, muscles and something that sort of looks like gills (the “fish” stage); limb buds develop with paddle-like hands and feet, and there appears to be a “tail” (the “amphibian” stage); and, by the eighth week of development, most organs are nearly complete, the limbs develop fingers and toes, and the “tail” disappears (the human stage). It turns out that this one-to-one correlation was too simplistic, but it remains safe to say that our biological development still passes through several stages that “recapitulate” the evolution of our species.

[17]          The amygdala is a region of the brain that permits the formation and storage of memories associated with emotional events. It permits us to “read” the emotional responses of our fellows and is thought to facilitated our ability to form relationships and live and work in groups. It is also the source of our “fight or flight” response to danger.

[18] In Cells that Read Minds, New York Times Science writer Sandra Blakeslee explained:

Studies show that some mirror neurons fire when a person reaches for a glass or watches someone else reach for a glass; others fire when the person puts the glass down and still others fire when the person reaches for a toothbrush and so on. They respond when someone kicks a ball, sees a ball being kicked, hears a ball being kicked and says or hears the word "kick."

 “When you see me perform an action - such as picking up a baseball - you automatically simulate the action in your own brain,” said Dr. Marco Iacoboni, a neuroscientist at the University of California, Los Angeles, who studies mirror neurons. ”Circuits in your brain, which we do not yet entirely understand, inhibit you from moving while you simulate,” he said. ”But you understand my action because you have in your brain a template for that action based on your own movements. “

[20]             Check out the post on the Betrayal of Corporate Clients at the Investment Fraud Lawyer Blog.

[21]             Wrongful death compensation over at the Product Liability Law Blog.

[22]             Looking toward the future, the Neuroethics and the Law Blog predicts that in the “experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity” here.

[23]             This week Beck and Herrmann at the Drug and Device Law Blog note that “shame works wonders” in their post on the Free Speech Challenges to the FDA.

[24]             Intentionally left blank.

[25]             ADR professionals are often heard critics of the adversarial system, as can be seen over at the Australian Dispute Resolvers Blog where author Chris Whitelaw (really??) quotes the Journal of Law and Medicine as follows:

The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury.

 (Iatrogenic, by the way, is a fancy term for “we have know idea whatsoever what the source of this ailment is). Chris is looking for comments so run on over there if you’ve been thinking about medical malpractice litigation during the marathon American health care debates.

 

Russia and Bank of New York Mellon Use Litigation as an Opportunity to Make a Business Deal

 Just like I'm always saying -- this from the Wall Street Journal Law Blog

 [T]he Bank of New York Mellon has reached an agreement to settle a $22.5 billion lawsuit by the Russian government for $14 million. The deal was reportedly reached after the two sides made a separate deal for a trade-financing pact. Click here here and here for earlier LB coverage.

Now that's a business savvy settlement!

 

 

Diplomatic Engagement to Settle Your Commercial Litigation

Today's New York Times Op-Ed piece on "diplomatic engagement" (Terms of Engagement) as a strategy for "chang[ing] [Iran's] perception of its own interests and realistic options and, hence, to modify its policies and its behavior," offers good strategic negotiation lessons for mediators and mediation advocates alike.  As Crocker explains:

[E]ach case of engagement has common elements. Engagement is a process, not a destination. It involves exerting pressure, by raising questions and hypothetical possibilities, and by probing the other country’s assumptions and thinking. Above all, it involves testing how far the other country might be willing to go. Properly understood, the diplomacy of engagement means raising questions that the other country may wish to avoid or be politically unable to answer. It places the ball in the other country’s court.

Litigation is an extremely good way to "exert[] pressure," on your negotiation partner by burdening it with the costs of  waging the adversarial contest.  The litigation itself not only "rais[es] questions and hypothetical possibilities" but through the process of discovery, it also "probes [the opponent's] assumptions and thinking" and "test[s] how far [your opponent] might be willing to go" to achieve victory.

Parties disappointed with mediation and mediators are usually dissatisfied with the mediator's inability to engage in the final step of "engagement diplomacy" -- "raising questions that the [opponent] may use to avoid or be [positionally] unable to answer."  A good mediator is unafraid to raise those difficult questions with each side of a dispute.  But raising those difficult questions is not enough.  A good mediator must also be able to deliver bad news to the parties in such a way that the parties are able to hear it. 

If the goal of the negotiators -- the attorneys -- is to "change the[ir] [opponent's] perception of its own interests and realistic options and, hence, to modify its policies and its behavior," the negotiators and their clients must be prepared to:

  • reveal to the mediator
    • hidden constraints preventing them from modifying their demand or offer; and,
    • hidden interests that must be served in order to justify any such modification
  • candidly acknowledge (in separate caucus)
    • the weaknesses of their position; and,
    • any constraints on their client's willingness and ability to put their convictions to the test of a jury verdict or judgment by the court
  • help the mediator help their clients understand that most litigation is based upon differing subjective experiences of the same "objective" series of events so that no one must admit that the other side is "right" and their own side is "wrong"

An example of the lengths to which people will go to be "right" is unfortunately provided to us today by the obituary of the first anti-abortion advocate to be shot and killed for his beliefs.  The slain activist spent years protesting outside the car dealership owned by Tony Young, who explained how the protests finally ended (from Slain Abortion Opponent Loved the Controversy)

Mr. Young said that after about three years of protesting outside his dealership, Mr. Pouillon came in and offered a truce. “ ‘Tony,’ ” Mr. Young said the exchange began, “if you would just agree that I’m right on my beliefs, I’ll stop.’

“I just told him, ‘Sure, Jim, you’re right,’ ” Mr. Young said, chuckling. After that, he said, Mr. Pouillon moved on.

Although few cases could so easily turn on the dime of a semi-sincere acknowledgement that the other side is "right," most attorneys would be surprised by how much value can be generated by acknowledging that the other side's version of the facts or the law is not crazy, evil, bizarre, intellectually dishonest or asserted in bad faith.  See The Biggest Lie in the Business:  It's Only About Money.  As I noted there:

The social scientists who study these things say that the way in which we respond to adversity "often reflects the fact that [our] prestige or status has been threatened more than the fact that [our] purchasing power has been diminished." Miller, Disrespect and the Experience of Injustice, Annual Review of Psychology (2002). In other words, the corporate C.E.O., like any other kid on the block, will retaliate when he feels he has been disrespected.

Conversely, research shows that business people are reluctant to recommend legal action if they believe that they and their company have been treated respectfully. 

By the same token that business people are reluctant to recommend legal action if they believe their company has been treated respectfully, they are often far more willing to settle litigation if they believe their positions have been heard and acknowledged as having been made in good faith.  For those headed toward settlement discussions or mediation, Crocker has good advice:

[B]y far the greatest risk of [diplomatic] engagement is that it may succeed.  If we succeed in changing the position of the other [side's] decision-makers, we then must decide whether we will take yes for an answer and reciprocate their moves with steps of our own.  If talk is fruitful, a negotiation will begin about taking reciprocal steps down a jointly defined road.  Engagement diplomacy forces us to make choices.

If litigators and their clients are aligned in the interest of settling litigation, they must prepare themselves to take "yes for an answer" by having in place a strategy of engagement that will permit them to reciprocate the other side's moves with steps of their own.  A good mediator should be capable of bringing all parties to the on-ramp of the road that counsel and their commercial clients are well-placed to and highly skilled at jointly defining.    

Power and Trust as Negotiation Strategies and the Lessons of The Cove

Powerlessness and silence go together; one of the first efforts made in any totalitarian takeover is to suppress the writers, the singers, the journalists, those who are the collective voice.   - Margaret Atwood

Every year, a town in Japan named Taiji kills 2300 dolphins and small whales.  This year, that slaughter was halted for a single day because of the activism of the man who trained Flipper for television, Rick O'Barry.  Here's his account of the making of The Cove.   

Below us, just across a two-fingered inlet, was the Killing Cove, where 2300 dolphins and small whales are butchered every year. [/*] It's the place Allison and Alex had infiltrated in 2002, managing to cut the nets and free some 15 dolphins before the two were assaulted by fishermen and arrested.  The killing here is part of a cetacean slaughter that is unregulated by the I[nternational] W[haling] C[ommission], which has no jurisdiction over the smallest whales.  The Japanese don't even have to pretend it's for scientific research.  The government issues permits to fishermen and over 22,000 dolphins, porpoises, pilot whales and false killer whales are killed annually along Japan's coasts.  The meat is sold to school lunch programs and grocery stores and is terrifically high in mercury.  Independent random tests have found the dolphin meat to contain three to 3500 times the levels deemed safe by the Japanese Government.

What did Flipper's trainer want to do?  He wanted to stop the slaughter.  Here's where the Harvard Negotiation article on power in negotiation comes in.  I'll let the authors of the Harvard article speak for themselves.

In order to understand [why the less powerful sometimes prevail against their more powerful bargaining partners] one needs to analyze power as more of a relational and perceptional concept. The relational dimension is captured in Dahl’s definition that A has power over B to the extent that he can get B to do something B would not otherwise do." For example, most non-governmental organizations (NGOs) are less resourceful than the World Bank. Yet the Bank can enhance the legitimacy of its programs by including NGOs. Over time, participating NGOs could influence the Bank’s agendas to some extent.  Thus viewed, parties with asymmetric resources may well share a mutually dependent relationship.

 It is also worthwhile to note that power sometimes lies in the eye of the beholder. A party’s decisions may be shaped as much by its perception of the situation as by objective reality.  Zartman and Rubin, in studying power in negotiation, define it as “the perceived capacity of one side to produce an intended effect on another through a move that may involve the use of resources.[A]s Fisher and Ury have pointed out, the resources a party owns do not necessarily translate into effective negotiating power, which is much more context-specific. The authors cite the example of the US, which “is rich and has lots of nuclear bombs, but neither has been of much help in deterring terrorist actions or freeing hostages when they have been held in places like Beirut"

The common tactics under a power-based approach include coercion, intimidation, and using one’s status and resources to overpower opponents. 

One tactic omitted from the list of power-based tactics is one of the most compelling -- the strategy used by Martin Luther King, Jr., Ghandi and, yes, anti-abortion activists -- bearing witness and shaming.

 

There are many moments of shaming and bearing witness in The Cove --   the moment when activist O'Barry holds his iPhone before the eyes of the Japanese official who has just told him that cateceans are killed quickly, with surgical precision (you can see that moment in the trailer here).  There's the day O'Barry, who has been permanently barred from IWC's conferences, walks in with a flat screen television strapped to his chest and silently moves in front of each row of delegates, showing them the video of the slaughter in the Killing Cover.  And then, at movie's end, the wrenching scene of O'Barry standing in the middle of a crosswalk in Tokyo, that same flat screen  on his chest, silently bearing witness as thousands rush past him and a few, half a dozen perhaps, stop in their tracks to watch the footage of the fisherman in the Killing Cove that he and his team gathered at the risk of their freedom and perhaps their lives.

It appears that the slaughter was halted for only a day.  Here's O'Barry's account of that day  (excerpt below):

I vowed to be back in Taiji when the dolphin killing began. I’ve often been here alone, or accompanied by a few environmentalists. Sometimes, I was able to talk a major media organization into sending someone.

When I got off the bus at the Cove this afternoon, I was accompanied by my son Lincoln O’Barry’s film crew, a crew from Associated Press, Der Spiegel (the largest magazine in Germany), and the London Independent.

I was talking with the police, as the international journalists stood around listening, suddenly a camera crew arrived from Japan! And then another! And then still another!

You have to understand that this is SO IMPORTANT. These TV stations have REFUSED to cover the story in Taiji for years and years. NOW, for the first time, they have shown up, with cameras rolling.

The Cove movie led to the strong action by the city of Broome, Australia, in suspending the sister-city relationship with Taiji. So now, the Japanese media are sitting up and listening, for the first time.

[A]ll Japanese will soon know about the cover-up that has occurred by the government in refusing to stop mercury-contaminated dolphin meat from being sold to unsuspecting Japanese consumers and children.

But Taiji can change this image of shame, if they want to. I will be telling them that the town of Nantucket used to be the capitol of the whale killing industry in the US. Now, it uses its history of whaling combined with whale-watching to market tourism very successfully. Whales and dolphins are worth more alive than dead. Taiji can do this, too. But the killing has to stop.

Alas, the cessation of the killing lasted only a single day.

 Once shameful national behavior has been exposed (a contentious or power-based negotiation strategy) the weaker parties (people vs. governments) must build their negotiating strength through trust.  As Power and Trust in Negotiation and Decision Making asserts:

Identification-based trust is grounded in empathy with another person’s desires and intentions and leads one to “take on the other’s value because of the emotional connection between them.”  It often exists among friends. Fostering understanding and friendly ties may therefore be a step to engender identification-based trust. For example, Reagan and Gorbachev developed a cooperative relationship in the late 1980s partly because they had repeated face-to-face talks over the years.  Reagan also sought to cultivate a non-hostile atmosphere in these talks by appealing to common interests, actively diffusing tensions and using his sense of humor. Because friendship and liking tend to generate trust and assent – sometimes in a subconscious fashion – Cialdini observes that salespersons often befriend their customers before promoting their products. Trusting someone in certain situations may thus come with risks of manipulation or exploitation

In asymmetrical power relationships, the building of trust among activists is necessary for the formation of a grass-roots coalition capable of overwhelming more powerful parties (perceived economic and national interests as well as that most powerful of impasse creators:  the status quo) with passionate commitment to an idea and the hope that the idea can be made a reality.  

O'Barry's documentary is a call to action that asks us to respond to our "better angels."  If enough of us hear the call and respond, there is no power that can stop this movement to stop the killing. 

As Martin Luther King, Jr. once said, "the arc of history is long but it bends toward justice."

______________________

The Harvard Negotiation article is a gift from Don Philbin who directed his Facebook readers to  Power and Trust in Negotiation and Decision-Making:  A Critical Evaluation at the Harvard Negotiation.  If you have any interest whatsoever in the dispute resolution techniques of negotiation, arbitration or mediation and you're not following Don (whose Facebook page is here and whose tremendous LinkedIn Arbitration and Mediation Group is here and whose group blog Disputing is here) you're missing the Mother of All ADR Aggregators and your life is the poorer for it.

*/  There were reports that international pressure caused the suspension of the annual dolphin hunt but the linked article from the Japan Times suggests that it resumed on the second day of the season on September 2.

Negotiating Rational Choice, Statistics and the Future of Mankind

 

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

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

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

What makes the Logic of Political Survival Relevant to negotiators is Bruce Bueno de Mesquita's application of game 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 and should draw my attorney readers into de Mesquita's world, first from Good Magazine's article The New Nostradamus and (at the end of this post, today's article in the Sunday New York Times).

First, de Mesquita's own words on the Middle East.

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.  And you'll also want to read today's New York Times article on de Mesquita,

Can Game Theory Predict When Iran Will Get the Bomb?

 

Family, Collaboration, Reciprocity and SOCIALISM?????

From Indexed -- In Theory at Least.

And this is all I'll have to say about universal health care.

The way in which this Index Card wisdom applies to legal practice was addressed by me in the sadly defunct complete lawyer article Savvy Lawyers Value Their Human Capital

These are hard times and none of us is immune. I’ve been here before. In the early 1990s, my law firm announced we would ride out the economic crisis by henceforth buying legal pads without our firm name embossed on the binding. Layoffs of partners, associates and staff quickly followed. Some caught life rafts to other law firms; some were not so lucky. Those who stepped on others going up the compensation ladder were not treated well on their way back down. The water was cold and filled with sharks.

 

It seemed then, and seems now, that the entire profession has forgotten two critical principles of legal practice: clients, not profits, come first; and, partners see one another through the tough years in the same manner in which they share the profitable ones. Because people (our clients, our colleagues and our staff) are our only assets, I have five people-centered tips for surviving, perhaps even flourishing, in this challenging economic environment.

Continue reading here.

Negotiating with North Korea

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.

 

Who ME? Manipulate? Negotiating Impartiality in Mediation

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?

Negotiating Our Own Survival with One Human Story

Negotiating Peace at the ABA DRS Conference: Pray the Devil Back to Hell

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!

 

Negotiating Reconciliation, Amends and Forgiveness in Burundi

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.

 

Negotiating with Pirates: Squeeze Every Penny Out of the Deal

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."

Waging War, Collateral Damage & Arbitrated Resolutions

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.

 

A Single Ray of Resolution Optimism in the Darkest Movie in American Film History

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.

Fact that Class Settlement Was Reached in Mediation Does Not Prevent Objectors from Discovering Factual Basis for Mediated Terms

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.

Obama and the Politics of Despair

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 CreativeYou can catch him on Twitter here.

 

 

What Times are These? The Unruly Tyranny of Mobs

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

 

Armed Conflict and Sexual Assault

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).

Blawg Review #178 Celebrates One Web Day

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!

Negotiating Politics: Mediators and Neutrality

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.

 

Negotiating the Political Conventions: Persuasive Argumentation

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.

 

 

Negotiating Armed Conflict

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

Sunday Times Report: Truth Commissions and Negotiating with the Enemy

(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). 

Negotiating Evil: Hear, See, Speak

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.

Robert F. Kennedy on the Mindless Menace of Violence Forty Years Later

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

More Thoughts on Negotiation and Appeasement

(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

To negotiate effectively, as classically described by Roger Fischer and Bill Ury in Getting to Yes, it is essential that each party understand and be fully prepared to exercise its Best Alternative to a Negotiated Agreement, or BATNA. Hitler clearly did. Chamberlin did not.

We can therefore define appeasement to include three distinct core elements:

1. Unilateral concessions, which by themselves, or in an environment that is conducive to collaboration, frequently lead to highly effective negotiations

2. Unfair and unjust outcomes that are imposed on those who are not present and have no right to participate in the process, which is easily remedied in mediation and collaborative forms of negotiation

3. Ethical and moral surrender in the face of blackmail, threats and coercion, which often flow from earlier unresolved conflicts and injustices.

How can America best negotiate our future?

We can best secure our future by recognizing that we are also world citizens, and part of a global environment that is facing serious threats to our survival that cannot be solved by any single nation. It simply does not matter whose end of the boat is sinking. We need to join the rest of the world’s nations, religions and cultures, and realize that it is no longer possible to go it alone.

Yet it will prove impossible to convince others to join us in solving transnational problems when we negotiate exclusively to maximize our own national self-interests, ignore the meta-sources of chronic conflict, and act in ways that encourage profound social, economic and political injustices to continue.

We can reclaim our unique claim to world leadership by practicing what we preach; by abjuring torture and tyrannical practices, no matter what fancy new words are used to describe them; by promoting conflict resolution, social justice and democracy everywhere, starting at home; by rejecting military solutions to political problems; and by adopting the principle that we will negotiate with anyone at any time to solve common problems.

For the remainder of this article, click here.  For Ken's new book, Conflict Revolution:  Mediating Evil, War, Injustice and Terrorism, click here.  My review of Ken's book here

Contentious Litigation? Get a War Crimes Negotiator to Settle the Case

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).  


Should We Fear to Negotiate or Only Fear to Negotiate Badly?

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. 

The Puppet Negotiation (rated PG for offensive language)

Getting the Parties to the Bargaining Table, Part I

Is negotiation a political issue?

You bet.

Qureshi: Pakistan Won't Negotiate With Terrorists

(RTTNews) - Pakistan's Foreign Minister Shah Mehmood Qureshi said Monday that his government would not negotiate with "terrorists" even as it seeks open dialogue with some militant groups.

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!

Mediation as Leadership in the Eye of the Storm

This morning's guest blog -- Eye of the Storm Leadership:  Mediation as Leadership and Leadership as Mediation -- is by Peter Adler, PhD, President of The Keystone Center and author of Eye-of-the-Storm leadership: 150 Ideas, Stories, Quotes, and Exercises on the Art and Politics of Managing Human Conflicts. 

Not long ago, Bob Benjamin and I offered a session at the ABA meeting in Seattle called “Beyond Orthodoxy: The Adaptive Mediator in a Perpetually Changing Marketplace of Clients, Needs, and Ideas.” The session, surprisingly packed to the gills, focused on new and alternative frameworks for mediation. 

We began with three assumptions.

First, we posited that mediators have become much too self-absorbed with rules, laws, titles, professional issues, and organizational matters.

Second, we noted that there is insufficient attention being paid to ongoing core negotiation issues and intervention dilemmas, as well as to the tensions surrounding competition, cooperation, and the deep human needs that attend conflict resolution.

Third, we stressed that it is time to take mediation to the next level in our popular and political cultures.

At the end of the session, one very thoughtful gentleman came up to me and said: “I like what you guys are saying but I really need to make a living. Much as I want to move our work to the next level, I have to focus on professionalization issues.”

But are the two incompatible? Not at all! 

Certainly mediators need to be concerned about fees, markets, specialties, certifications, associations, and affiliations. But there is a more important challenge, one that, if we meet it capably, will help advance our professional goals and simultaneously take our work to its zenith.

Quite simply, we must make our core mediation values part and parcel of the way leaders in the public and private sectors lead.  The creation of a widespread cultural mediation “pull” would necessarily both overtake and serve as the engine of our much narrower efforts at “pushing” settlement, resolution, and agreement in legal markets.

Mediators like to talk about “the field” or “the profession.”  But let's remember that our work is, at core, a passion. It is a shared calling that links us to millions of people worldwide who do not have the word "mediator" engraved on their business cards.

Most of people with whom we are so aligned have never been formally trained and don’t know what we are talking about when we slip into technical mediator-babble. Nonetheless they share the same passionate impulses and intellectual creativity as we do when they talk about the power of beneficial negotiation processes, the inclusion of diverse voices in our communities, and the ability of ordinary people to forge wise, effective, and tractable solutions to seemingly intractable problems.

In my work at The Keystone Center, I see these people all the time. Many of them are at the table grappling with the energy, environment, and public health cases and consensus building projects we work on. They come to assert their positions on reformulating food products, realigning the I-70 highway, or stabilizing greenhouse gas emissions and are stunned by their own progress. They open lines of genuinely new communication, form improbable alliances, and craft smart deals.

Tough as nails as negotiators, they also see the enormous value of collaborative problem solving. These same people are in positions to change our political and popular cultures. They hold influential positions in their companies, government agencies, and NGOs. They sit on library boards, church councils, and education commissions. They volunteer time to the PTA and sit on the boards of the local United Way. Some of them occupy elected or appointed to public offices. Others coach basketball teams, lead Rotary Clubs, or run neighborhood farmers' markets.  . 

We need to connect with these people, learn from them, pass our knowledge and experience to them, and help foster a new generation who can make the obvious links between the mediation skills we have learned and the native leadership work they are doing.

If we do that well, our political culture will flourish in new ways and business will boom.

______________________________

Peter S. Adler, Ph.D. is President of The Keystone Center, which applies consensus-building and cutting-edge scientific information to energy, environmental, and health-related policy problems. The Keystone Center also offers extensive training and professional education programs to educators and business leaders and runs the Keystone Science School in the Rocky Mountains.

Adler's specialty is multi-party negotiation and problem solving. He has worked extensively on water management and resource planning problems and mediates, writes, trains, and teaches in diverse areas of conflict management. He has worked on cases ranging from the siting of a 25-megawatt geothermal energy production facility to the resolution of construction and product liability claims involving a multi-million dollar stadium. He has extensive experience in land planning issues, water problems, marine and coastal affairs, and strategic resource management.

Adler has written extensively in the field of mediation and conflict resolution. He is the co-author of Managing Scientific & Technical Information in Environmental Cases (1999); Building Trust: 20 Things You Can Do to Help Environmental Stakeholder Groups Talk More Effectively About Science, Culture, Professional Knowledge, and Community Wisdom (National Policy Consensus Center, 2002); the author of Beyond Paradise and Oxtail Soup (Ox Bow Press, 1993 and 2000) and numerous other articles and monographs
.

Negotiating with Terrorists: Choosing Your Bargaining Partners

I do try not to stray into foreign affairs.  Heck, negotiating with (not always rational) attorneys is difficult enough!  Yet, occasionally, I mention negotiation in the context of international relations, as in my recent post -- Al Qaeda, Understanding the Bean-Counter Next Door -- which I knew might get some irritable comments.

Many (like Christopher Annunziata of the CKA Mediation and Arbitration Blog) will question my sanity or my patriotism (a word so "spun" by current political realities that it has nearly lost its meaning /*) if I say without citation to some legitimate authority that governments can and do negotiate with terrorists. /**

Therefore, I'm providing my readers with an excerpt from a Foreign Affairs article -- Negotiating with Terrorists -- by Peter R. Neumann, Director of the International Centre for the Study of Radicalisation and Political Violence.   

Before moving on to the excerpt, I want to share an experience with you.  While studying at the Straus Institute I took part in a mock mediation among principals of Hamas, Israel and the PLO.  The first thing the mediator said was, "there's a party missing from this meeting."  He pulled an empty chair into the circle and said, "the children of Hamas, Israel and the PLO are missing.  This chair serves as a reminder to everyone that any agreement we reach must serve the interests of the children and that our failure to reach agreement will harm them."  

It was a powerful moment and although the mediation was "mock," everyone assumed their roles with great stridency as to the virtue of their respective positions.  When the discussion started to wheel out of control, as it did many times during the day, all the mediator had to do was to put his hand on the "childrens'" chair to restore collaborative purpose.   

Excerpt from Peter Neumann's article Negotiating with Terrorists below.  If this topic interests you, also see attorney Adir Waldman's book Arbitrating Armed Conflict here.

The argument against negotiating with terrorists is simple: Democracies must never give in to violence, and terrorists must never be rewarded for using it. Negotiations give legitimacy to terrorists and their methods and undermine actors who have pursued political change through peaceful means. Talks can destabilize the negotiating governments' political systems, undercut international efforts to outlaw terrorism, and set a dangerous precedent.

Yet in practice, democratic governments often negotiate with terrorists. The British government maintained a secret back channel to the Irish Republican Army even after the IRA had launched a mortar attack on 10 Downing Street that nearly eliminated the entire British cabinet in 1991. In 1988, the Spanish government sat down with the separatist group Basque Homeland and Freedom (known by its Basque acronym ETA) only six months after the group had killed 21 shoppers in a supermarket bombing.
Even the government of Israel -- which is not known to be soft on terrorism -- has strayed from the supposed ban: in 1993, it secretly negotiated the Oslo accords even though the Palestine Liberation Organization (PLO) continued its terrorist campaign and refused to recognize Israel's right to exist.

When it comes to negotiating with terrorists, there is a clear disconnect between what governments profess and what they actually do. But the rigidity of the "no negotiations" stance has prevented any systematic exploration of how best to conduct such negotiations. How can a democratic government talk to terrorists without jeopardizing the integrity of its political system? What kinds of terrorists are susceptible to negotiations? When should negotiations be opened?

The key objective for any government contemplating negotiations with terrorists is not simply to end violence but to do so in a way that minimizes the risk of setting dangerous precedents and destabilizing its political system. Given this dual goal, a number of conditions must be met in order for talks to have even a chance of success. Assuming that negotiations are appropriate in all cases would be no more valid a theory than one that assumes they never are. 

The first and most obvious question for any government considering negotiations is whether the terrorists it faces can make good negotiating partners. Bruce Hoffman, of Georgetown University; William Zartman, of Johns Hopkins University; and other experts believe that terrorists' stated aims and ideology should be the decisive factor in determining whether they might be willing to compromise. Hence, these experts draw a distinction between nihilistic terrorists, who have "absolute" or even "apocalyptic" goals (often religiously inspired) and for whom violence has become a perverted form of self-realization, and
more "traditional" terrorists, who are believed to be "instrumental" or "political" in their aspirations and so have the potential to become constructive interlocutors.

This distinction between supposedly rational terrorists and irrational ones, however, is often in the eye of the beholder. If the IRA and ETA appear to be more rational than, say, al Qaeda, it is because their goals -- nationalism and separatism -- have a long ...

The remainder of this article will unfortunately cost you $5.95 here (emphases my own).

_______________________

**/  If you use the simplest definition of "patriotism"  -- pride in one's own country -- I, like 90% of Americans, am extremely "patriotic."  I am proud of our Constitutional form of government, the American Enlightenment from which it drew its wisdom, and the rule of law.  I am particularly proud of the Bill of Rights, a document guaranteeing the liberties of the minority against the potential tyrannies of the majority.  My own favorite amendments are the First, the Fourth through Eighth, the Thirteenth through Fifteenth, and, of course, the Nineteenth. 

I'm proud to be descended from immigrants, both externally -- England, Sweden, Ireland, Scotland -- and internally -- an escape from the Dust Bowl to California. I'm proud of our unique social and economic mobility though not blinded to the fact that many are stuck in a cycle of poverty from which they have not been able to escape.  I'm proud of the public education system that provided me with the ability to go to University and Law School at a very minimal cost.  

I am proud to be a part of a culture and political system that values and protects dissent and supports a "free marketplace of ideas" as the best  means of distinguishing between the better and the worse; the good and the bad, the moderate and the radical, the useful and the not so much.   

There is also much about America of which I am not proud.  Just as there is much in myself that does not stir pride.  Because we are all dual natured, our political, social, and economic systems naturally follow -- greedy as well as generous; empowering as well as stifling; peaceful as well as war-mongering; forgiving as well as retributive.  In a democracy that encourages dissent, my criticims of American institutions and activities should never be taken for a lack of patriotism.  In fact, I consider it my patriotic duty to engage in the political process with the intention of making what is good better and diminishing that which is bad.  

**/  Here's a useful wikipedia definition of terrorism: 

As terrorism ultimately involves the use or threat of violence with the aim of creating fear not only to the victims but among a wide audience, it is fear which distinguishes terrorism from both conventional and guerrilla warfare. While both conventional military forces may engage in psychological warfare and guerrilla forces may engage in acts of terror and other forms of propaganda, they both aim at military victory. Terrorism on the other hand aims to achieve political or other goals, when direct military victory is not possible. This has resulted in some social scientists referring to guerrilla warfare as the "weapon of the weak" and terrorism as the "weapon of the weakest."

Al Qaeda: Understanding the Bean-Counter Next Door

(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.




Post from Washington D.C.; Lincoln on Right, Wrong, War, Peace and Yes, It's Sunday, God

I read this on the wall of the Lincoln Memorial yesterday, after standing on the steps and imagining Dr. Martin Luther King Junior's "I Have a Dream Speech" (video and text here) forty years after his assassination and said to my husband -- "don't you long for leadership like this again?"

See what Lincoln has to say about "God being on our side" and the end of negotiations in this short but stirring speech.  

At this second appearing to take the oath of the presidential office, there is less occasion for an extended address than there was at the first. Then a statement, somewhat in detail, of a course to be pursued, seemed fitting and proper. Now, at the expiration of four years, during which public declarations have been constantly called forth on every point and phase of the great contest which still absorbs the attention, and engrosses the energies of the nation, little that is new could be presented. The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself; and it is, I trust, reasonably satisfactory and encouraging to all. With high hope for the future, no prediction in regard to it is ventured.

On the occasion corresponding to this four years ago, all thoughts were anxiously directed to an impending civil war. All dreaded it--all sought to avert it. While the inaugeral [sic] address was being delivered from this place, devoted altogether to saving the Union without war, insurgent agents were in the city seeking to destroy it without war--seeking to dissole [sic] the Union, and divide effects, by negotiation. Both parties deprecated war; but one of them would make war rather than let the nation survive; and the other would accept war rather than let it perish. And the war came.

One eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the Southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union, even by war; while the government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war, the magnitude, or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible, and pray to the same God; and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces; but let us judge not that we be not judged. The prayers of both could not be answered; that of neither has been answered fully. The Almighty has his own purposes. "Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!" If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him? Fondly do we hope--fervently do we pray--that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether"

With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations.

Conflict Revolution, Mediating Evil, War, Injustice and Terrorism or How Mediators Can Save the Planet

Yes you CAN pre order this book now!!  Right here.

  Not ready for the revolution?   Read this review by clicking on the upper right hand corner and hitting "view full screen" at the bottom of the menu.


Book Review of Conflict Revolution; Mediating Evil, War, Injustice and Terrorism: How Mediators Can Help Save the Planet by Kenneth Cloke reviewed by Victoria Pynchon - Get more free documents

John Adams and Ken Cloke's new Book Conflict Revolution

(image from Fixing Australia, the Blog)

My husband and I were watching part II of the John Adams series on HBO last night -- the part where Benjamin Franklin gives Adams (Paul Giamatti) some OJT on international diplomacy, beginning with -- and I paraphrase -- "you can't get a man to do what you want him to do by publicly humiliating him." 

Later, Abigail Adams (Laura Linney) gives essentially the same advice in a womanly way. 

"A man likes to make his own decisions," she says as she sends John off to the Continental Congress to seek men and arms (and help from the French) in  Massachusetts' recent violent confrontations with the British Army. 

Abigail takes a breath to make sure her head-strong husband can hear her. 

"Men," she concludes, "do not like to have their decisions made for them."  

Still, it wasn't until we reached the movie's scenes dramatizing the delegates' after-hours meetings in the local public house that my husband finally turned to me and said "they're mediating in separate caucus."   

The Unity Necessary for Political Change Requires Mutual Self-Interest and Common Ground

The unity necessary to make the agonizingly difficult 1776 decision for independence, revolution and war was not achieved by persuasive argumentation, but by the alignment of each state's self-interest with the self-interest of each other state.  This was Franklin's brilliance as international ambassador and as one of the founders of our unprecedented and improbable political enterprise - the united states.  

All of which takes me to Ken Cloke's new book Conflict Revolution -- Mediating Evil, War, Injustice, and Terrorism -- which I've been reading in draft but that you'll soon be reading in print --  pre-order now -- courtesy of Janis Publications

I want to tell you all about Ken's revolutionary shift from rights and power on the one hand to mutually beneficial interests on the other, but I've got work to do.  For now, I'll leave you with a snippet from his last chapter which should whet your appetite for more.

Political theorist John Schaar wrote:

“The future is not some place we are going, but one we are creating. The paths are not to be found, but made. And the activity of making them changes both the maker and their destination.”

Ultimately, we are the social, economic, political, and environmental impediments we are seeking to overcome. All the problems and conflicts we want others to resolve are already present within us. The systems, paradigms, cultures, and environments we regard as dysfunctional exist not just around and between, but within each of us. They are us, even if we have devoted our lives to changing them, and must be transformed both within and without.

Systemic, paradigmatic, transformational, revolutionary changes therefore require personal as well as social revolutions. These revolutions do not happen merely by participating in recycling efforts to reduce environmental pollution. At their deepest level, they require us to actually experience ourselves as no different from the plants and animals we are destroying and, more problematically, from the people who are doing the destroying. Only by accepting personal responsibility for global problems on this scale can we discover where they begin inside us, and identify the practical steps we can take to stop them at their source.

Consequently, we not only need to transform the dominating and coercive nature of social, economic, political, and environmental power, and dismantle them at their systemic source by expanding the use of interest-based alternatives and increasing the ability of civil society to solve problems collaboratively. We also need to refuse to participate in them personally, even when they are dedicated to achieving “good” ends. This is no easy matter, both because a great deal is at stake and because domination and coercion are not just large-scale events, but small, barely noticeable everyday behaviors whose origin lies in all of us.

"Your Dreams Do Not Have to Come at the Expense of My Dreams"

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

Let's Just Go Ahead and Assume that, Torture or Not, Waterboarding is A-O.K. The Very Bottom Line? "Torture is Essentially Useless"

I don't make this stuff up.  Read Pray and Tell from the American Prospect Online Edition by Jason Vest, excerpt below and full article here.  

ON MAY 13, 2004, AS THE WORLD MEDIA WERE IN full serum over Abu Ghraib, an FBI agent who had spent time interviewing terrorism suspects at the U.S. detention facility at Guantanamo Bay, Cuba, fired off a gloomy e-mail to a colleague. Venting about what had happened in Iraq and expressing his fears that, despite the scandal's coverage, nothing would change, much of the agent's angst had to do with post-September 11 notions that treating terrorism suspects as human beings was neither necessary nor useful.

"From what CNN reports, [General Janis] Karpinski at Abu Ghraib said that [General Geoffrey] Miller came to the prison several months ago and told her they wanted to 'gitmoize' Abu Ghraib," he wrote. "If this refers to [intelligence] gathering as I suspect, it suggests that he has continued to support interrogation strategies we not only advised against, but questioned in terms of effectiveness ... we were surprised to read an article in Stars and Stripes, in which [General] Miller is quoted as saying that he believes in the rapport-building approach. This is not what he was saying at [Guantanamo Bay] when I was there."

One among tens of thousands of official documents pried out of government hands under the Freedom of Information Act (thanks to the American Civil Liberties Union), this one, like so many others, never found its way into anyone's story. But from a review of thousands of documents--e-mails, still-unreported communiqu6s, and other pieces of paper--certain themes have become increasingly apparent. Among the most consistent: FBI agents issued repeated objections to the use of torture against foreign terrorism suspects. And from this theme emerges a conclusion that future presidential administrations, and all American citizens, would do well to remember: For the purpose of prying actionable information from suspects, torture is essentially useless.

A Dark Day in America: Torture Veto Vetoed

Being "neutral" does not mean we check our common human decency at the door. 

Do understand this however.  When we are feeling frightened and disoriented, anger and its explosive cousin rage, consolidates our sense of self.  This is one of the main reasons why aggression is so emotionally satisfying.  /**

Let's do continue to talk with one another about these matters -- whether we agree about them or not.  Understanding our own fallible human nature and forgiving ourselves for our momentary failures to rise above our baser instincts is the critical first step in living our values.  

Today, this morning, I must admit that my response to the headlines is anger. My own fear and anger, however, have not been transmogrified into national and international policy and practice.  I am sorry, very sorry, to say that the American administration's fear and anger has been. 

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. 

The Peace Symbol Turns Fifty

Thanks to Dominique Foucart at Réseau Médiation for directing us to the web site of the 50th Anniversary of the Peace Symbol here -- which we picked up in Dominique's weekly column -- this week in the anglophone blogosphère.  

Take a look.  Not only will you find a world of peace symbol images, but also other Peace Sign memorabilia.  Yes, I'm nostalgic and yes, it's not as easy as flashing the "peace sign" at the on-lookers from a 1969 Viet Nam War protest rally, but it is what we all want and it is possible. 

Why do I continue to believe in peace despite having lived a sufficient number of years to become weary and cynical?

Because it was only a few hundred years ago that our very British ancestors (well, my very British ancestors) were beheading traitors and putting their heads on spikes on the London Bridge.

You've got to admit, things have gotten better over time!

The peace symbol used here was contributed to the Peace Symbol Anniversary site by Kirsten Joost of Toronto Canada.  Thanks Kirsten!

Diane Levin and Jim Melamed on Presidential Negotiation Styles

There is no golden age, nor any "right" candidate (I'm still hoping for a Clinton-Obama ticket and no I don't care whose name is above the title; I'm for marrying vision with experience instead of wasting everyone's considerable contributions on a Democratic firing squad -- a CIRCLE). 

Still, it's good to hear mediators talking about the Presidential race, particularly  Diane Levin and Jim Melamed, the latter who published Obama's Message - Mediation's Political Triumph -- at mediate.com and the former who warns us all against One Trick Ponies here.  

Melamed's citation of Obama's "mediative" debating points below:  

  • “ . . . it is important for the United States to not just to talk to its friends but also to talk to its enemies. In fact, that's where diplomacy makes the biggest difference.”
  • “I recall what John F. Kennedy once said, that we should never negotiate out of fear, but we should never fear to negotiate. And this moment, this opportunity when Fidel Castro has finally stepped down, I think is one that we should try to take advantage of.”
  • “But I do think it is important, precisely because the Bush administration has done so much damage to American foreign relations, that the president take a more active role in diplomacy than might have been true 20 or 30 years ago. I think that it's important for us, in undoing the damage that has been done over the last seven years, for the president to be willing to take that extra step.”
  • “We are a nation of laws and we are a nation of immigrants, and we can reconcile those two things.”
  • “And the Bush administration is not real good at listening. That's not what they do well. (Laughter.) And so I will reverse that policy.”
  • “. . . And what they see is that if we don't bring the country together, stop the endless bickering, actually focus on solutions and reduce the special interests that have dominated Washington, then we will not get anything done. And the reason that this campaign has done so well -- (applause) -- the reason that this campaign has done so well is because people understand that it is not just a matter of putting forward policy positions.
  • Senator Clinton and I share a lot of policy positions. But if we can't inspire the American people to get involved in their government, and if we can't inspire them to go beyond the racial divisions and the religious divisions and the regional divisions, that have plagued our politics for so long, then we will continue to see the kind of gridlock and non-performance in Washington that is resulting in families suffering in very real ways.”
  • “And I've said that I'm going to do things differently. I think we have to open up the process, everybody has to have a seat the table, and most importantly, the American people have to be involved and educated about how this change is going to be brought about.”

Cross-Cultural Negotiation Insights from the Kellogg School of Management

When you mediate disputes in a major urban center like Los Angeles, you do a lot of cross-cultural negotiation as a matter of course.  I've relied in the past upon the Kellogg School of Management's Leigh Thompson and am happy to report that one of her fellow professors, Jeanne Brett has devoted an entire book to the intricacies of negotiating across cultural lines. 

Excerpt below from the Wall Street Journal's LiveMint article on Professor Brett's book The Negotiation Dance below.  I link to Professor Brett's book Negotiating Globally because I haven't been able to find a link to the cited tome mentioned here.

For full article, click here.  And there's an entire page of Kellogg Negotiation Books here!

In The Negotiation Dance: Time, Culture, and Behavioral Sequences in Negotiation, Kellogg School of Management professor Jeanne Brett (with Wendi Adair, assistant professor at the University of Waterloo) presents the intricate patterns of international negotiation, providing insights designed to encourage sure-footedness.

“Negotiating cross-culturally presents many challenges,” says Brett, the DeWitt W Buchanan Jr professor of dispute resolution, “but one of the most important is how people communicate information about their preferences and priorities”.

Brett notes that negotiators from low-context cultures—those that tend to take spoken words at face value, as in the US—typically gain information about the other’s preferences by asking and answering questions. In contrast, negotiators from high-context cultures—those in which people infer additional meaning that may be implied but not directly stated—frequently keep mental tallies of offers throughout the process. This type of behaviour is common in China, India and Japan, among other places.

“It’s important for negotiators from low-context cultures to learn to read information from the offer patterns of the other side, so as not to be at a disadvantage when a negotiator is reluctant to share information directly,” notes the professor, who has authored more than 50 articles and four books, including Negotiating Globally, which won the International Association for Conflict Management’s Outstanding Book Award in 2002.

The Negotiation Dance, published in Organization Science in 2005, presents a model that Brett teaches her students to facilitate tracking offers, infer preferences and priorities and record a visual picture of the progress of the negotiation.

Off-Shoring Dispute Resolution to India?

The Hindu News Update Service reports on the emergence of online dispute resolution in India here. 

Let me just say this.  There cannot be too many people practicing mediation. 

There can only be too few.

Excerpt below.

Online Dispute Resolution involving mediation and arbitration with the help of technology, was emerging as a branch of dispute resolution, Chief Justice of Kerala, H L Dattu said on Saturday.

In India, this method is in its infancy stage and is gaining prominence day by day, he said after inaugurating the National Conference on 'court annexed mediation and role of institutional arbitration' here.

With the enactment of Information Technology Act, 2000, e-commerce and e-governance have been given a formal and legal recognition. Even the traditional arbitration law of India has been reformulated and 'Arbitration and Conciliation Act, 1996' was enacted, he said.

For remainder of article, click here.

Negotiating a Culture Inimical to Emotional and Physical Abuse

I saw Athol Fugard's disturbing play Victory tonight at the Fountain Theatre (local L.A. Weekly Review here).  As the Weekly writes, "[w]here and how to direct one's rage is the drama's unanswerable, theological question."

I returned home to a reader comment on my Zimbardo post Avoiding Evil and Promoting Good,  directing my readers to the Situationist which recently posted a Zimbardo lecture:  Genocide to Abu Ghraib:  How Good People Turn Evil

As yesterday's post suggested, we are continually negotiating law and culture with one another, sometimes consciously and sometimes not.  The more we understand our own human frailtiies, the better chance we have of avoiding their enactment and the better opportunity all of us have to negotiate self-determination, independence and inter-dependence for all of us.

How to Make Your Opponent Do What You Want Him to Do: Public Dialogue

"Even if your intention is to bring people together, you have to let them decide whether they want to be together."  Ken Cloke

You already know the answer to the question posed in this series of posts but I'll say it anyway. 

You can't possibly know what you want your opponent to do until you have the opportunity to sit down together to determine what would benefit the two of you the most.  

With that in mind, I give you three questions and one process suggested by Ken Cloke at the MBB Conference in a break-out section this past weekend.

FIRST QUESTION: What life experiences have  led you to feel so passionately about this issue?

    • telling life stories induces empathy
    • the story-teller reveals the person behind the spokesperson
    • the story reveals the secret meanings underlying the public positions as well as the motivations directing and informing behavior that might otherwise appear evil or irrational

SECOND QUESTION: Is there anything about the position you've taken that you're not 100% certain of and that you'd be open and willing to have a conversation about?

THIRD QUESTION:  Is there anything you have in common with your conversational partner or anything that you both believe in?

PROCESS: 

    • send each side out of the room to list all of the things their side did in their last exchange that undermined communication and partnership.
    • when they return, ask whether they are willing to commit to not doing that again 

Paternalism, Self-Determination and the Rule of Law

I return from the Mediators Beyond Borders Founding Congress in Colorado with much to think, and write, about.

Let me begin today by telling you a story drawn from my community mediation practice. 

The Parties vs. The Lawyers

Crystal and Keith /* are the unmarried parents of a seven year old girl, Taniyah.  They have sought the services of the West Hollywood community mediation center because they want to discuss the resolution of their custody dispute outside the presence of their attorneys.  

After introductions, Keith and Crystal push a proposed settlement agreement across the conference table.  They are shy with one another but united in their desire to reach agreement without any pressure from "The Attorneys."  

Two hours later, we are at item no. 23 -- "neither Parent nor either set of grandparents shall physically strike The Child at any time."   

"Is this a provision you agree with?" I ask.  "It means you can never slap Taniyah's hand," I add.  "Is that something you want to agree to?"

"We don't have a choice," says Crystal.  Keith nods in assent.   

I let the word "choice" hang in the air for a moment as I begin to understand why these two bright, well-educated and articulate young parents have so reluctantly given their meek and mutual approval to every previous item they said they came to the mediation center to discuss.    

The Shadow Conflict 

I put the "proposed" agreement aside.   

"Why don't you have a choice?" 

"Because Taniyah's attorney put this into the agreement," says Keith as Crystal nods in agreement, repeating Keith's remark "we don't have any choice." 

Taniyah has an attorney, I learn,  because Keith's mother -- one of Taniyah's primary caretakers -- left Taniyah at home with her nine-year old cousin, Arabelle to run an errand.  Arabelle, a curious child, led Taniyah on an expedition to her grandparents' bedroom where the two found a stash of light porn -- Playboy and the like.  That,  I'm told, is the only reason Taniyah has an attorney.   

It quickly becomes apparent that Crystal and Keith simply assume that Taniyah's attorney is a decision-maker.  I'm still considering how to approach this problem when Keith asks the question that leads to the resolution of the "shadow" dispute between the parents and Taniyah's attorney.

"How do we get our power back?"   

Justice, Mediation and the Rule of Law

I tell this lengthy story as preface to another from this weekend's Mediators Beyond Borders Founding Congress.  Yesterday, someone suggested from the podium that we should include mediation and arbitration agreements in our own contracts with our own clients.

I raised my hand. 

"Why," I asked, "do you want to restrict our clients' access to the justice system?" once again demonstrating a fractious lack of diplomacy that makes some people wonder how I could possibly be an effective mediator. /**

It wasn't a well-placed question but it is of a type I often find myself more or less compelled to shoe-horn into any conversation that assumes mediation is best for other people. 

Here's what I wish I could have said in a more diplomatic way at some more appropriate time -- taken from Conflict Resolution, Enforcement of Social Link and Substantive Justice

I invite comment!!!

A number of scholars have pointed out the danger lying in an ideology of harmony related to ADR where agreement is seen as the panacea in every conflict.

They have argued that mediation was essentially supported by [the] middle upper class and social scientists whereas people . . . involved in conflicts[, including the] working class were expecting law and rights to protect them.

Emphasizing free choice, individualism, autonomy and advantage, and assuming instrumental rather than normative and religious orientations of social action, the concept [of mediation as an ideal form of dispute resolution] seems to describe the culture of professional elites rather than of residents of these urban/ethnic neighborhoods.

As Abel has stated, "there is considerable evidence that people want authority rather than informality. They want the leverage of state power to obtain the redress they believe is theirs by right, not a compromise that purports to restore a social peace that never existed."

According to those scholars, ADR could serve as a means of control and domination in keeping and reinforcing power relations. For instance, Milner Ball has defined ADR as "another form of the deregulation movement, one that permits private actors with powerful economic interests to pursue self-interest free of community norms. "

They argue that in traditional societies . . . mediation is used [when] there is no danger of retaliation from the weaker party. The[] . . . focus on relationships [diminishes the parties' focus on] justice[;] individual satisfaction has become the main purpose of conflict resolution.

Although they are conscious of the paradoxes of Law which can either "symbolize justice or conceal repression, reduce exploitation or facilitate it, prohibit the abuse of power or disguise abuse in procedural forms, promote equality, or sustain inequality, they argue that "Without legal power, the imbalance between aggrieved individuals and corporations or government agencies cannot be redressed".

_______________________

*  I have changed the parents' names and merged two separate mediations in the interest of  confidentiality.

**  The answer to this question is as follows:  I am not mediating when I am engaged in discussion with friends and colleagues.  Just as I do not observe the rules nor use the language of the courtroom at a dinner party, I do not observe the niceties of mediation in public discourse.  It would be better if I did.  I know that.  I'm working on it and will post some insights about constructive public conversations on difficult and divisive topics in my next post. 

The Paradox of Power: Trying to Get Your Opponent to Do What You Want: Another Interlude

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

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How to Make Your Opponent Do What You Want Him to Do: Part I

I'm blogging from the Stanley Hotel -- hence the Stanley Steamer -- in the Rocky Mountains -- hence the snow.  

Stephen King wrote the Shining here, not in my room, but right down the hall.  The book was Inspired by the Stanley.  Hence the picture of Jack.

What's most exciting, however, is that I'm attending the Founding Congress of Mediators Beyond Borders; seeing old friends and meeting for the first time people I've long known at a distance; and getting to know an incredibly diverse and fascinating group of people dedicated to bringning conflict resolution techniques to international conflict.

More of that later.

Before getting to the "money shot" about changing the other guy's mind, I want to share with you Ken Cloke's 12 Ways Systems Resist Change from his lecture yesterday:  Mediators as Global Citizens:  How Mediators Can Change the Planet.

I start with resistance because you can't even begin to think about change until you understand why it is you're not getting past opposition's door.  You might most readily notice in the following list the ways in which your workplace (or your government!) supports its dysfunction.  

You'll also recognize your opponent's opposition to you and perhaps even yours to him.

  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.

Our Man in Iraq on the State of the Union

The Negotiation Law Blog's dear good friend, Mark Robbins, pauses in his work to make sure we didn't miss the President's reference -- in his State of the Union address -- to the work Mark is doing in Al-Hillah, Iraq.

And they saw our troops, along with Provincial Reconstruction Teams that include Foreign Service officers and other skilled public servants, coming in to ensure that improved security was followed by improvements in daily life. Our military and civilians in Iraq are performing with courage and distinction, and they have the gratitude of our whole nation.

MARK A. ROBBINS
Rule of Law Advisor
Babil PRT, Al-Hillah, Iraq 

File this post in 101-Things-to-Do-with-Your-Law-Degree and Restoring-the-Rule-of-Law-Everywhere!

Thanks, Mark.   God Speed!

DIY Dispute Resolution: Accountability, Apology, Forgiveness and Reconciliation

When I was mediating the resolution of litigation on my local court-annexed ADR panel, I used to help attorneys, their insurance adjusters and physician clients resolve medical malpractice cases.  

Some of my most profound human interactions occurred in these mediations.  One surgeon said to me, with burning passion in his gaze, "you do not understand.  The operating room is my church."  

Another told me he could not consent to the settlement of a lawsuit because the sum the carrier was offering "would mean that I killed my patient."

Though I do not mediate malpractice cases anymore, I have been given a taste of the trauma that physicians experience when they are sued for malpractice.

What Does This Have to Do with Do It Yourself Dispute Resolution? 

Research on the reasons patients sue their doctors suggest that malpractice litigation could be avoided if:  (1)  the patient understood the reason for an unexpectably bad result; and, (2) the physician were able to express to the patient responsibility for the outcome. See e.g. this Lancet study reporting that patients expressed the following reasons for suing their physicians:

[1] concern with standards of care--both patients and relatives wanted to prevent similar incidents in the future;

[2] the need for an explanation--to know how the injury happened and why; compensation--for actual losses, pain and suffering or to provide care in the future for an injured person; 

[3] accountability--a belief that the staff or organisation should have to account for their actions; [and]

[4] [p]atients taking legal action wanted greater honesty, an appreciation of the severity of the trauma they had suffered, and assurances that lessons had been learnt from their experiences. 

Which Brings Us to Transplant Surgeon Pauline Chen's Book Final Exam

Chen tells us that surgeons, who expect themselves and their colleagues to be infallible, have ritualized their response to error in Morbidity and Mortality -- M&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.

The Limitations of Legal Practice are Highly Exaggerated: Our Lawyer in Iraq Reports from His New Post

 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!


 

Negotiating Peace: a Transformative Model

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.

Bueno de Mesquita's Negotiation Science: If Only Lawyers Could Do the Math

(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.

More Conflict Resolution Resources on the Internet

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.


Middle East Envoy and Chief Clinton Peace Advisor Gives 12-Steps for Effective Negotiations

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.

Extreme Sports: Family Negotiation Tactics from Mixed Emotions Blog

 

(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.

 

The Negotiator's Field Book and the Shadow Negotiation

(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.

A July Fourth Lesson: Negotiating American History

(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!

Negotiating the Closure of Guantanamo

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.

Conflict is the Sound Made by the Cracks in the System

(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.

WTO, Neuroscience and Impasse

(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.  


Mediators Go Green

(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.

 

Interventions for Intractable Conflict: Peacemaking in a Tit for Tat World

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.

Truth, Justice and the American Way

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!)

 

A Baghdad Romeo and Juliet

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.

Restore Democracy in America

Olbermann: A Look Backward at the Commander’s Credibility.  
Click on the Image to See the Newscast.  Transcript below.  

Any meaningful assessment of the president's next step in Iraq must consider his steps and missteps so far.

So, let's look at the record:

Before Mr. Bush was elected, he said he was no nation-builder; nation-building was wrong for America.

Now, he says it is vital for America.

He said he would never put U.S. troops under foreign control. Today, U.S. troops observe Iraqi restrictions.

He told us about WMDs. Mobile labs. Secret sources. Aluminum tubing. Yellow-cake.

Continue Reading

Small Talk and Separate Caucuses

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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Save a Child from Drowning or Buy a $300 Bottle of Vodka?

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.  

Continue Reading

Against Common Wisdom: Who are the Muslim Radicals?

 What Makes a Muslim Radical from Common Ground News.

I'm providing you with the conclusion (and a link) to this fascinating study about the attitudes, religiosity, income, and, education of Muslim radicals.  A must-read for achieving a genuine understanding of the war we continue to fight, increasingly against the will of the American people.

What, then, separates a Muslim moderate from a Muslim radical? Although almost all Muslims believe the West should show more respect for Islam, radicals are more likely to feel that the West threatens and attempts to control their way of life. Moderates, on the other hand, are more eager to build ties with the West through economic development. This divergence of responses offers policymakers a key opportunity to develop strategies to prevent the moderate mainstream from sliding away, and to check the persuasive power of those who would do us harm.

Photo by Chris Hondros (Pakistan)

 

When You've Got a Tough Negotiation Coming Up . . .

think about the challenges presented by this one

Text from Robert Berger's Voice of America report Egypt Steps up Mediation for Israeli-Palestinian Prisoner Swap    

The leader of the Palestinians' ruling Islamic militant group, Hamas, is meeting Egyptian mediators in Cairo to discuss a possible prisoner swap with Israel.

The leader, Khaled Mashaal, is pushing for the release of 1,400 Palestinian prisoners, in exchange for Israeli soldier Gilad Shalit. Hamas gunmen kidnapped the 19-year-old corporal at an army base on the Gaza border five months ago.

Mashaal blames Israel for the failure to achieve a breakthrough during months of behind-the-scenes negotiations. But, according to Arab media reports, Egypt is trying to get Mashaal to soften his demands.

(to read the remainder of this article, go to the Voice of America News website by clicking here)

For another source on the same story click here.  For an analysis of prior Israeli-Arab prisoner exchanges, click here.   For the Guardian's Special Report on Israel and the Middle East, click here.

We will continue to follow these negotiations, so look for updates here.

Public Conversations Project

 

The Southern California Mediation Association recently presented the Public Conversations Project with an award for its work in promoting public dialogue on divisive issues.  If you turn from CNN in disgust or if FOX News sends you running for the Daily Show, now's the time to check out PRC.     

Have we ever been this divided? How do we identify ourselves? Democrat and Republican? Red State or Blue? Men and Women? White and Black? Rich, poor, "comfortable," working or middle class? Christian, Muslim and Jew? Mediators, lawyers, social workers, therapists, academics. 

The 13th century Muslim mystic, Rumi (translated here by Coleman Barks) wrote:

I, you, he, she, we
In the garden of mystic lovers,
these are not true distinctions.

Rumi got it right 800 years ago. These superficial differences among us are "not true distinctions." That being said, here are PCP's "Eleven Tips for Making a Hard Conversation Work.

Continue Reading

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