Gini Nelson's Engaging Conflicts

Different Worldviews

I have really enjoyed the conversation with Rawle over the last few months, even though our back and forth posts don’t always seem to make much contact. I think this reflects that we are speaking from different views. Something Rawle said – “anarchy reigns in the absence of laws” – reminded me of my studies in nonviolent action. Specifically the writings of Gene Sharp in his discussion of power:

One can see power as self-perpetuating, durable, not easily or quickly controlled or destroyed. Or political power can be viewed as fragile, always dependent for its strength and existence upon a replenishment of its sources by the cooperation of a multitude of institutions and people – cooperation which may or may not continue. The Politics of Nonviolent Action: Part I, 1973, p. 8.

I sense from Rawle’s posts that he sees the law as a powerful force that keeps order. I, on the other hand, tend to see the law as one outcome of social order and cooperation – it reflects our broad social agreement and relies on social cooperation to function. In other words, I see social cooperation with the law as foundational to the power of the law and not the other way around. Civil disobedience has shown that without cooperation, the law has no power.

The Law relies on the power of authority and sanction. It is functional when people respect and obey the law (authority) or see that the consequence of violating the law is more costly than obeying it (sanction). However, it can fail to deliver justice because people use many other sources of power. A few examples: the power of resources (time and money) allows people to “work around the law,” find loopholes, hire a superior lawyer, outspend their opponent, etc. The power of knowledge and expertise may give one party an unfair advantage over the other. The power of nuisance – simply willing to keep fighting – can cause an opponent to give up simply because it isn’t worth the fight. In many cases, knowing how to use the “’orderly’ resolution of disputes” provided by the courts gives people with abundant resources, knowledge and expertise an enormous advantage that has nothing to do with the intent of the law.

From this viewpoint, mediation is distinct and works with the fundamentals of social functioning – agreement and cooperation. Since it relies on voluntary participation, it must use an entirely different set of tools than authority or the threat of sanction, and therefore may be useful in places where the law does not hold sway or is actually a barrier to justice.

Skillful mediators draw people into a cooperative process not out of their authority or because they can force people into it, but because they respond to the real needs and interests of people in conflict and allow an honest negotiation based on a specific reality rather than broad legal precepts. Agreements reached may or may not have any relationship to a legal outcome in the minds of those parties involved in reaching an agreement.

So, here are the interesting questions to me: Does mediation pose a threat to the law? To justice? To social agreement? If Additional Dispute Resolution (ADR) techniques continue to grow, what will be the impact on our social understanding and functioning?

More on this next time.

Best wishes,

David

Rawle Andrews Jr., Esq. will respond next week.

“Actions and inactions have consequences. Every decision we make, to act or to refrain from acting, has legal consequences, whether known or unknown to us at the time.” In addition to legal consequences, every decision we make has interpersonal consequences, social consequences, biological consequences, moral consequences – the list can go on. Why do I bring this up? I challenge Rawle to see that “the law is the ice cream of human existence” only to lawyers.

I mean, really, the law has some serious limitations when it comes to social interactions. How useful is the law when lovers fight? Would they look to the law to see their way through their disagreement? Or how about a family fighting over mom’s estate? Does the law help Tommy see that he is only angry because Joe got more attention growing up? Will a legal judgment really help those siblings ‘keep the peace’?

The law doesn’t simply and easily translate to people’s specific situations. It doesn’t easily address displaced conflict (arguing about the wrong thing), misattributed conflict (arguing with the wrong people), or false conflict (based on misperception). It has a difficult time answering moral and value questions, and when it does, that means little to people whose values differ. It tends to be biased towards those who can afford it, and it appears to do a poor job of leaving those people who litigate with the experience of justice.

The law is a very useful thing to turn to when people are willing to defer to authority, are looking for a standard, or – if “kicking and screaming” – we must rely on the sanction power of authority to keep the peace (and hope that it will). It solves some problems, creates others, and leaves others unaddressed – like anything.

I don’t see the Law as the “endgame.” What a strange proposition! The law addresses conflict between people. Why? For the law? No. The endgame is resolution for the human beings involved in the conflict, and the impact of that resolution on society in general.

I am not, in any way, diminishing the importance of the law. I am advocating for people to understand that the approaches to conflict resolution being brought about from non-legal perspectives are extremely valuable in their own right, and have very distinct aspects from legal dispute resolution with their own benefits and dangers. They can address certain conflicts that the law is powerless to impact. To lose those perspectives in a legal viewpoint, or view them as some subset of law, would be a great loss indeed.

Best Wishes,

David

Just as there are subsets to ADR, there also are subsets to Meditation itself. When the parties are predisposed to mediation, good people like David River are available and should be utilized to participate in facilitative mediation. The parties know they have a problem, recognize, in some instances, that their relationships are interdependent and they just want the problem to go away so they can get on with life. In facilitative mediation, the Mediator provides a neutral forum for the parties to discuss their desires and frustrations in the hopes that open lines of communication will produce a “legally enforceable” compromise (e.g., a settlement agreement). If the parties are mature and motivated, this can be a wonderfully successful means to resolve conflict. There also is a safe harbor for mediators in facilitative mediation because legal consequences are not driving the resolution; all participants understand that if we cannot solve the problem today, costly and time-consuming litigation is inevitable.

Unfortunately, we do not live in a perfect world, and sometimes the parties are so entrenched that a little “adult supervision” is required to fashion a binding peace accord. When these latter parties are forced or otherwise come “kicking and screaming” into mediation, it is unlikely that facilitative mediation will be successful because the parties would rather be elsewhere. In these instances, directive mediation can and should be utilized in trying to resolve the dispute. Under directive mediation, the Mediator explores the range and likelihood of possible legal outcomes with the parties in trying to reach a settlement. If the mediator is an attorney or Judge, free and open discussion on legal rights and responsibilities become part of the dialogue. In other words, “I understand, Mr. Williams, that you really want to keep the house, but unfortunately your name is not on the deed, etc.”

As an attorney mediator, I can make such a statement without concern about violating some rule or regulation because I have a license to practice law. Without that “license” to drive the mediation, I would be walking a tight rope constantly in search of boundaries (known and unknown) for what I cannot do or say as a mediator. Question: if the goal is to keep the parties together long enough to get them talking about a resolution, do I really have time to sit at the table and wonder whether I, as Mediator, am coloring outside the lines in my own actions? I humbly submit that the facilitator cannot facilitate if he or she is a part of the problem. For me, three years and a written exam eliminated this movable obstruction from the equation.

Consequently, my bottom line remains unaltered at this point: whether mediators who are not attorneys can effectively serve the needs of adverse parties, when authorized to do so by law, depends largely on the who the parties are and what they are fighting about at the time. The more pronounced the question of fault, the more likely that an attorney-mediator is necessary to legitimize the process.

Best wishes,

Rawle

This concludes Rawle’s post this week. David B. River will respond next week.

David River is to be commended for his passionate appeal to make Mediation an End, rather than an alternative Means to an End. In fact, until I read David’s post (“Mediation is not a subset of Law”), my initial sense was that a primary disconnect between mediators and attorney mediators over dispute resolution theory was a function of form over substance (i.e., same goal with different approaches to reach the finish line). Further review, however, reveals that the disconnect lies, at least in one mediator’s opinion, within the declaration that Mediation, an art form to be sure, is Art in and of itself. Although it is easy to appreciate one’s passion for a career, it might be a stretch to say that the “cup or cone” argument is more important than the ice cream itself. To me, Law is the ice cream of our human existence.

Actions and inactions have consequences. Every decision we make, to act or to refrain from acting, has legal consequences, whether known or unknown to us at the time. Once we commit to a course of action (or inaction), and that decision is communicated to the outside world, we run the risk that some other person or entity will be offended. If the offended party expresses dissatisfaction or outrage, because they believe their rights have been infringed, we have a Conflict. The ultimate question is how best to resolve the conflict. As I indicated in my original post (“The Polar Extremes of Law and Justice”), it all depends on the parties’ motivations.

Regardless of whether the parties are out of control when they decide to “fix the problem”, there are three (3) mechanisms to handle the dispute. Perhaps the most obvious, if not illogical, means to resolve a dispute is (1) Street Justice. This is an emotion-driven response to a problem based on actual or perceived events that might serve as a guide to future conduct. Unfortunately, violence begets violence, so it is unlikely that street justice will solve the problem. Another obvious dispute resolution mechanism is (2) Litigation (e.g., “I will sue you all the way to the Supreme Court”). Two or more adversaries submit their dispute to a Judge or Jury; conduct extensive fact-finding activities; file motions; and either go to trial or settle. A major problem with litigation, however, is that it makes a private dispute very public. Consequently, posturing and brinkmanship are a given; and not always for the better. Whether it truly is necessary to “go all the way” largely depends on taste. Given the large number of lawsuits that settle before trial (80% or better according to some statistics), however, it is likely that some of these battles might never have been waged if there had been a greater exercise of accountability, common sense and empathy when the impasse arose. A final conflict avoidance mechanism is (3) alternative dispute resolution (“ADR”). As David correctly observes, Mediation is not a subset of Law. Mediation actually is a subset of ADR, which is itself a subset of “how” to resolve a legal conflict.

So, where does that leave us? Unless and until we accept, that Law is the end game it will be difficult to get our arms around the debate. Does conflict resolution always require the intervention of lawyers and Judges? Of course it does not. However, ours is a system of laws (i.e., the Constitution, statutes, ordinances and regulations, etc.). The public has a loose definition and understanding of these laws, but many times they are ill equipped to digest and apply these laws to human discourse. All we can hope is that the people will not take their lay interpretation of the law into their own hands, or resort to physical violence when the talking stops.

Best wishes,

Rawle

Part Two of Rawle’s post continues tomorrow. David will respond next week.

The genius of mediation is that it removes the third-party decision maker. It is genius because although people may say that they just want the situation over and want someone to make a decision, they actually want someone to decide in their favor. The legal answer, however elegant and well-supported in case law, may leave people just as angry as they were before. In mediation, responsibility for the outcome rest squarely on the clients (which does not exclude any type of support from legal, financial or therapeutic professionals). The clients are the ones who must squirm with the difficulty of finding an acceptable outcome, and there is no one outside the situation to convince, cajole or blame. The genius and importance of this approach is that it makes resolution possible.

This setting is wholly unique from a legal process, even though it is influenced by it. Working out beliefs about fault (in divorce, discussions of fault are a routine part of the mediation process), the human experience, pain, love and grieving are as important as understanding the legal context and finding a workable outcome. Mediators spend much of their time in ambiguity. I have received many blank looks from attorneys in mediation role plays when I say, “The truth doesn’t matter right now!”

In the midst of a mediation, my mind is busily sifting through facts and emotions, asking, “How does this argument make sense to this person? Does she simply need to express something that hasn’t been said or is her upset based on a perceived material need? Does he need to vent emotions or look at his expense sheet? How can this person give up their position while saving face? Why did he tear up just now and should I stop or let it pass? How can I challenge this person to ask for what they want without losing the other client?”

My good mediation clients are defined not by an absence of questions of fault, but their willingness to be empowered as the chief negotiator for their situation. I am merely providing grease for the wheels.

The sticky issue arises when mediation clients are not well-informed. What if the grease needed in a situation is legal information?

I’d like to address this more next time, but suffice it to say that where Rawle sees ADR as an acceptable course to take in the midst of a law degree, I’d like to see a law course or two given in the midst of an ADR degree.

Best wishes,

David

I really want to thank Rawle Andrews for his thoughts. It is exactly the conversation I crave to have, and to have such a well respected attorney-mediator to have the conversation with is an honor.

First of all, I am totally congruent with Rawle in one of his conclusions – I have no problem with the valuable service that he and good attorneys provide. I honor it, respect it, and think it is a vital part of society. I am clear that it is a valuable service to my clients who consult with attorneys during their mediation. I in no way want to diminish the legal profession.

That said, my basic declaration in response to Rawle’s blog is this: Mediation is not a subset of law.

Rawle writes: “why resort to [alternative degree plans for mediators] if law schools simply can add a course to an already established degree plan, or attorney mediators can audit such non-traditional social science courses on their own time.”

I have trained several hundred mediators. In general, the group who has the greatest difficulty in the mediator role is attorneys. In my experience, attorneys, more than other professionals, tend to get impatient and uncomfortable with the stories and emotions people have, step over important nonverbal communications, value details and facts over human experience, and have trouble sitting in a process when the outcome seems obvious. Many attorneys simply take the training, say, “This isn’t for me” and go back to their legal practice.

I’m not saying this is universal and I’m not saying that good attorneys can’t be good mediators. I am saying that mediation skills come from a different mindset, frame of reference, ethical code and theoretical background that must continue to be defined and distinguished rather than made a subset of the legal mind.

Best wishes,

David

David’s post will continue tomorrow responding further to Rawle’s points, discussing “the genius of mediation.”

Mediation is here to stay. The perception of its effectiveness as a tool for resolving disputes, however, depends largely on whether the parties have confidence in the experience (i.e., the integrity of the process and the mediator). It is not hard to imagine the inherent tension between mediators who are not attorneys presiding over disputes involving two or more parties represented by counsel. Beyond the education divide, the elephant in the room is that the mediator might be experienced as a neutral but the prevailing perception is that the mediator’s sphere of reference is unduly limited because he/she never sat on the other side of the table as an advocate. Fortunately or unfortunately, no alternative degree plan or Law School certificate program will change this bias that exists, to some degree, even among lawyers & Judges given the constant furor surrounding U.S. News & World Report’s annual Law School Rankings.

Although the MDP issue is alive and well, perhaps the best way to grow and nurture mediation is for like-minded ADR proponents to abandon turf wars in favor of united advocacy for expanded use of the process. For example, regardless of pedigree, neither Mr. Rivers nor I question the other’s right to serve the public or motives for doing so. If Mr. River’s expertise, as a mediator who is not an attorney, can help people in need, we can ill afford to shelve those skills because of the “packaging” anymore than we should discount the value of lawyers from a process that can be used to reduce or streamline litigation and its attendant costs. Gini Nelson has provided one such forum to accomplish this result. Our challenge, as ADR proponents, is to use it so that best practices can be shared for the greater good. Anything else, as the television commercial says, would be uncivilized.

Best wishes,

Rawle