Negotiation Law Blog

(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.

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.

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.

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.

 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!

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.

[Update Ed. note:  Cambodia genocide tribunal to get anti-corruption oversight as reported by Jurist on August 13, 2009)

My name is David Blackman and I am a trial lawyer who practiced in Sacramento, California, for approximately 32 years before coming to Cambodia, where I have made my home for the last three years. I have been a member of the California Bar Association since 1972. I have formed an organization called American Cambodians for Justice. This organization represents American Khmers who were victims of the Khmer Rouge and who immigrated to the US in the early 80’s after the defeat of the Khmer Rouge by invading Vietnamese forces accompanied by Cambodians who fled to Vietnam to escape the purges of the Khmer Rouge during their reign of terror.

At the present time I represent several American Cambodians who have lost their husbands or wives, children, parents and brothers and sisters during the Khmer Rouge years, from April 1975-January 1979.

Cambodia and the United Nations have created an International Tribunal whose purpose is to prosecute and try Khmer Rouge senior leaders and persons most responsible for Crimes against humanity.While here in Cambodia as a tourist in late 2006, I became interested in the Genocide Trials taking place in Phnom Penh.  Because of my experience doing trial work with large numbers of victims, I thought I could help US Cambodian Victims of the Khmer Rouge. They are some of the senior leaders of the Communist Party of Democratic Kampuchea. (CPK) and were the architects of the grand design to mold Kampuchea into a Communist Utopia at any cost. 

This is the first Genocide trial in the world that has let Civil Party Victims join in the criminal proceedings at all stages, including pretrial proceedings. [Ed. note:  see the Khmer Rouge Trial Portal]  Because of the effect of these trials will have on International Human Rights Law, what happens here will be precedent for future cases. 

  [Ed. note:  below, survivor of Toul Sleng Prison gives his testimony on YouTube]

The cases are at this time divided several categories, Case 1 victims are the survivors of Toul Sleng Prison and the families of those murdered there.  This infamous prison is where over 15,000 Cambodians, and foreigners  were tortured and killed.  Their buried bodies were later found in mass graves in what has been called the "Killing Fields,” a few kilometers outside of Phnom Penh. This is only one of many mass burial sites throughout Cambodia. This case is currently in trial as I write.  The Defendant is “Duch” the Prison Warden, There are only about 89 victims involved in this case.  There are no American Cambodians who are Civil Parties in Case 1”.

Case 2, which will begin perhaps before the end of 2009, [will ] likely [involve] people who were forced to leave the cities like Phnom Penh and forced marched to work in the labor camps or killed because they were branded either Capitalists or educated or belonging to a former regime. These cases will remain open for some time. There maybe a case 3 involving additional defendants but, it is being resisted by the Prime Minister of Cambodia Hun Sen.

THERE'S MUCH MORE; PLEASE CLICK "CONTINUE READING"

David Blackman

 Attorney at Law

 American Californians for Justice

 855-12- 872-503 (in Cambodia)

 916-935-1164 (in the US)

 www.cambodianfuturefund.

Continue Reading

By Kenneth Cloke

The Copenhagen Climate Change Conference -- What You Can Do

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

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

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

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

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

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

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

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

What You Can Do

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

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

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

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

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

Ken Cloke
President,
Mediators Beyond Borders
 

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.

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!

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

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

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

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

RSVP to kenclokembb@gmail.com

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

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.

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.

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

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

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

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

The answer? 

Attack!!

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

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

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

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

See The American Void by Simon Critchley

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

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

The Good News

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

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

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

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

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

Only that we could potentially be happy.

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

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).

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.

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

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

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

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

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

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

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

The Meta-Sources of Chronic Conflict

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

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

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

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

To read on, click here.

(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). 

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

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).  

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!

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."

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.

(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.

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.

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!

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.

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.

"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 

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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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!

 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!

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

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

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

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

Erica Ariel Fox, JD Harvard Program on Negotiation Insight Initiative

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

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

Topics for Discussion:

? Why Mediators Beyond Borders?
? Strategies to Help Save the Planet
? Current & Planned Projects
? How to Form Project Teams
? Potential Partners & Funders
? MBB Chapters & e?Support
? Learning What Skills are Needed
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While I was studying for my LL.M at the Straus Institute (Pepperdine School of Law) I took a class in "Faith Based" (or Second Track) International Diplomacy from an extraordinary man named Brian Cox.

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

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

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

Press release below:   

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

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

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

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

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

About the Author

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

(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.

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.

(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.

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.

(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.  

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

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

How does this relate to conflict resolution?

Read the headlines lately?

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

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

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

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

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

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

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

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

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

Continue Reading

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!)

Hamas decides to stop news release over Israeli captive soldier


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

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

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

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

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

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

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

Continue Reading

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

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

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

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).  

Continue Reading

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

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

(pictured, anonymous Israeli soldier)

What follows is an excerpt from the December 11, 2006 Report of the United Nations Secretary General on the Middle-East from Relief Web.  In paragraph 24 of that report (to help you locate this excerpt in it) Kofi Annan expresses his desire to see both the captive Israeli soldier and some of the 9,000 Palestinians now being held captive in Israel released.

At the time of writing, efforts to form a Palestinian national unity government appear to have stalled. However, a precarious and imperfect ceasefire is in place in Gaza, and tentative feelers have been put out regarding the possibility of resumed Israeli-Palestinian dialogue, as well as broader regional dialogue. The ceasefire follows a period of political deadlock and spiralling violence that has had serious consequences for civilians on both sides, with Palestinian militants firing rockets from Gaza into Israel, and massive Israeli military operations and targeted killings that have led to several hundred Palestinian deaths this year, at a rate that has increased significantly since June 2006. Negotiations under Egyptian auspices are continuing for the release of the Israeli soldier captured at that time. Prime Minister Olmert recently announced that he would consider a prisoner exchange of 1,400 Palestinian prisoners, including lawmakers and officials seized by Israel after Corporal Gilad Shalit's capture. There are an estimated 9,000 Palestinians currently in detention in Israel, a matter of burning concern for the Palestinian population. The release of some of them and also the Israeli soldier would be a very positive development.

Fulfiling our promise to keep you up to date on these negotiations, we reprint here from IMEMC & Agencies, the article, Minister of detainees reveals information on prisoner swap with Israel by Saed Bannoura - Tuesday, 05 December 2006, 00:32

Palestinian Minister of Detainee, Wasfi Qabha, revealed on Monday during a meeting with parents of Palestinian detainees, in Bethlehem, information regarding a prisoners swap deal between Israel and Palestinian resistance factions holding an Israeli soldier captive.

Qabha said that the deal does not include the abducted ministers and legislators since they should be immediately freed without any preconditions.

Qabha stated that, according to the deal, Israel will release 400 detainees as the fighters hand the captured Israeli soldier, Gilad Shalit, to Egypt, after that Israel will release additional 400 detainees. The third stage of the deal will see the release of detainees sentenced to high terms.

He also said that the deal includes releasing children, women, elderly and sick detainees, and will also see the release of Palestinian leaders, including Marwan Barghouthi and Ahmad Sa'adat.

Also, the deal states that Israel should improve the living conditions of the Palestinian detainees.

Israeli Environment Minister, Gideon Ezra, told the Israel Radio on Monday that Israel should consider freeing jailed Palestinian leader Marwan Barghouthi in a prisoner exchange for captured soldier.

Ezra added that if the Palestinian Authority prevents arms smuggling into the Gaza Strip, then he will be in favor of releasing Barghouthi.

The man conducting negotiations between the Palestinians and Israel for the prisoner exchange is Chief of Egyptian Intelligence Service, Omar Suleiman.  Click here for a short article from earlier in the year about Mr. Suleiman and his on-going role in Middle East Negotiations.

Now that we have one foot (ok, two) in the blogsophere, we'll "hip" you to interesting blogs we come across.  Below is an entry (verbatim) from Bruno Giussani's blog Lunch Over IP.  Our friend and colleague, the brilliant and masterful commercial arbitrator and mediator Deborah Rothman turned us on to Fast Company's 100 Next Best Blogs where we found Giussani.

Thanks Deborah.  For everything. 

Giussani is a business writer and author in Switzerland who blogs about connections among a wide variety of sources, from Marx to Formula One pit crews, to illustrate how consumer-generated content is challenging the old notions of media, as "a thin layer of structure is put on an expanding boiling pot of ideas." 

You'll need to click on the link below and then scroll down to view the great video of Quadir that is mentioned her.  

Iqbal Quadir and the real power of the cell phone