|ALL SECTIONS | ABOUT MEDIATION | Civil | Commercial | Community | Elder | Family | ODR | Public Policy | Workplace|
Subscribe to the Mediate.com NewsletterSign Up Now
David Brooks recently wrote a frustrating but compelling piece in his NY Times Op-Ed column, titled “The Technocracy,” where he critiques the health care and financial reform legislative packages. Being a self described conservative of the more classical and constructive kind, he raises what must be acknowledged as valid concerns about each of the two laws, observing how both exceed some 2000 plus pages. In the same vein, he references the 3-part Washington Post series, “Top Secret America,” by Dana Priest and William Arkin, (July 20, 2010), which describes in cringing detail the huge bureaucracy of some 1200 government agencies and 1900 private companies spawned since 2001 by the Homeland Security Act. Whether valid and justified in purpose or not, the sheer size of the legislative acts are daunting and it is hard to fathom the ramifications as their implementation progresses. No less a credentialed liberal than Hendrik Hertzberg of the New Yorker, has already noted how the intelligence community is at serious risk of being unable to function because of the law, and is “...hobbled....by a toxic mixture of secrecy, compartmentalization, turf rivalry, and tremendous duplication of effort....” (“Open Secrets,” The New Yorker, p. 17-18, Aug.2, 2010)
This unparalleled and exponential growth of laws, suggests an apotheosis of sorts has been reached in the belief in the power of law and regulation as a primary instrument of rational governance to manage complex issues. The approach follows on the path set, in the view of many highly regarded historians and economists, by FDR’s New Deal of the 1930’s to counter-act the Great Depression and Lyndon Johnson’s Great Society of the 1960’s, designed to address poverty in America. In crafting this technocracy, Brooks wonders out loud if we are reaching too far in our reliance on law as a primary means of effecting change. The 20th Century has been characterized as the “techno-rational age” (Schon, D. The Reflective Practitioner, 1981), and where the supreme belief in rational problem solving, effectively illustrated by the film, Apollo 13 (1995). After the memorable line said by mission commander Jim Lovell, played by Tom Hanks in a stirringly and perfectly pitched and ratiocinated manner despite the life and death circumstance at hand, “Houston, we have a problem,” the scientific support team on the ground proceeds to solve the problem of fitting an essential square part through a round opening, vindicating a culture dedicated to the power of rational problem proving. Now that ‘techno-rational’ thinking frame used to solve complex scientific and technological matters is being married to the management of social systems and human affairs with a renewed energy and the 21st Century quickly assuming the moniker of the “technocratic age.”
Among the Western techno-rational cultures, the United States has most avidly seized upon a positivist spirit and the idea of progress drawn directly from the Eighteenth Century’s Age of Enlightenment. In America, most discussions, especially in the political realm, are framed as who or which policy is right or wrong; most people believe as an article of faith that there are right answers, or truths, which are discoverable and knowable through an analytical, dispassionate, rational and objective thinking process, and each side in any given controversy proceeds to do battle on that basis. Each side claims the evidence and facts---or makes it up---to prove their point. Of course, any semblance of a the deliberative process envisioned in accordance with the basic principles of democracy where issues are the subject of free and open exploration in a civil discourse, are often lost in the chaotic and argumentative shoving match between the opposing sides.
The Myth of Rationality, however, carries on and the power of reason originally spawned by scientific methodology has been carried over into the application of analytical planning methods to social and political affairs. The claim of rationality of the process presumptively bestows validity, legitimacy, and authority on any conclusion, law or regulation adapted or reached as being a correct one, at least until disproven. And as Voltaire noted, that can be a long time in coming, because to many rationalists, as irrational as it may seem: “the more ancient the abuse, the more sacred.” Underlying the democratic order and a successful deliberative process is the working assumption that people are desirous and capable of making rational decision. Specifically, this means that if people have sufficient information, know the available options and the risks and advantages of each choice, they will make good decisions based on their calculated self interest. In the technocracy, Brooks suggests this working assumption has been extended to government professionals and experts who are merely later-day ministers of the rational faith, able to analyze and use social science to manage complex systems and organize decision making on behalf of citizens in order to obtain the right results and make an otherwise chaotic world more orderly, fair, and safe. (NYT, July 20, 2010) As Ivan Illich suggested many years ago, the experts and professionals are installed as the ‘high priests” of the techno-rational faith. (Medical Nemesis, 1976)
Suffice it to say there are many holes in the logic of the working assumption of rational decision making, especially in a society all agree is becoming increasingly complex and with ever-greater awareness not just of the “known unknowns” of planning and plotting solutions to problems, but of the pitfalls of the “known unknowns and the “unknown unknowns.” Having sufficient information available is often easier said than done, even in seemingly basic and straightforward Type I kinds of matters where the issues and options are apparent. Negotiations in many business and divorce disputes often break down over valuations of property and assets---especially in the current economy---and whose numbers to believe.
This state of affairs, however, does not appear to deter many professionals/experts from presuming to have the right answer. Many well socialized professionals or experts have never met a rule they did not like. Yet, even if every rule has a “good and valid” raison d’être, the cumulative effect of an overly ruled society can quickly become downright irrational. With more laws, rules and regulations, albeit intended to clarify and simplify, most require interpretation and are frequently contradictory, causing as much confusion and conflict as they do clarification and direction. For every law passed to solve a given problem, one or more new and unanticipated issues or problems are likely to be created. The unforeseen and unintended consequences of laws are particularly troublesome. Just as the overuse of antibiotics has been found to incite strains of viruses resistant to treatment, the attempt to manage conflict through the overuse of law may actually intensify and make the conflict even more difficult. Too much law can hide not just knowable risks, but unknowable ones as well. In the aftermath of the Columbine High School shootings in Colorado, many schools instituted policies and procedures to clamp down on students and supposed risky behaviors that have arguably caused more, not less, school violence, not to mention the compromising of the educational purpose. Similarly, on a national scale, the multiple laws and agencies in the Department of Homeland Security have created a morass of duplication, and confusion, which makes the United States less safe. When laws and regulations create the circumstances they were intended to cure, they effectively ‘bite back;’ this unintended consequence is a ‘revenge effect’ against the overconfidence in simple rules and laws as an answer to a more complex issue. (Tenner, Edward, Why Things Bite Back: The Law of Unintended Consequences, 1996)
From Brooks’ attention to health care and financial reform, and “homeland” security, some can infer technocratic thinking is solely a function of the public sector and limited to those particular issues. However, technocratic thinking and the accompanying risk of ‘revenge effects’ is equally evident in virtually every other complex issue we face in both, be it in the public sector or private spheres of our lives. Certainly education reform, immigration and environmental policy planning are susceptible, and are business and personal family matters, where professionals and experts seek to solve problems by law, regulation, and rules. For example, we have come to accept the involvement of courts and the police authority of the state in peoples’ personal lives by virtue of the fact of divorce. Albeit with a well intended purpose of protecting children’s interests assuring the smooth financial re-ordering of the family, the involvement of court officials and others in the family is frequently disruptive.
Many businesses, corporations, non-governmental agencies, and other organizations, have veered toward becoming increasingly technocratic, especially as they have sought a national or global reach and become less tied to a particular locale. Corporate policies regularly trump the exercise of discretion by “on the ground” managers in particular circumstances, even when it arguably stifles good business practices and productivity. The notion that private business is, per se, more efficient than government in delivering services, being more flexible and grounded in the reality of the ‘bottom line’ is based as much on myth as fact. In addition, private businesses are not obligated to be democratic or even to provide or protection of the most rudimentary constitutional rights of citizens in a democracy. They are typically autocratic and free to curtail the right of freedom of expression among others. And, while there legal protections against some forms of discrimination, other discriminations are regularly practiced with impunity.
The size of a businesses’ or agencies’ employee handbook is often a good indicator of the amount of conflict present in that organization: the thicker the book, the greater the level of conflict. The time, money, energy and resources most businesses unnecessarily spend on managing conflict, not because of government regulation but of their own making, is considerable. In fact, while entrepreneurs are justifiably praised as creative risk takers, a majority of those businesses fail within a 10 year time frame, and the track records of many major corporations, such as Enron, AIG, Lehman Bros. or more recently, British Petroleum, is less than stellar and inspires little confidence in the power of corporate governance. The glorification of private business as a rational enterprise, and exhorting government to function more like a business is dubious at best.
Despite the risks, however, the unfurling technocracy that gives David Brooks and many others pause is not only inevitable, but probably essential in some form or fashion, to manage the complexity of modern society. Furthermore, it would be absurd to suggest that the faith in the rationalist thinking frame that has been foundational to the success of the industrialized cultures and vindicated by centuries of scientific and technological advances that have extended life expectancy, and provided for the basic safety, comfort and security of countless people and continues to hold untold promise for countless more be denigrated or dismissed as outdated. A rigorous, rational and analytical thinking process remains foundational and a critical component of the planning and management of complex issues and difficulties. Finally, while a decentralized system is appealing to the romantic notions of states’ rights, it is hard to imagine how that might work in the regulation of financial or health care systems that span most state boundaries.
It is not hard to appreciate why the allure of laws, rules and regulations is so strong. From the negotiation and adoption of the Declaration of Independence, the United States Constitution, and the Bill of Rights, through to the various Civil Rights Acts of the mid 20th Century, the rule of law has provided an essential super-structure to effectively manage difficult issues and conflicts, and at the same time protect personal freedom. It has demonstrably made society more safe, fair and just. Paradoxically, the same penchant for enlightened rationality that protects us has augured in a technocratic order that threatens many of those same personal freedoms and carries its own brand of chaos. The political twists and turns necessary to pass laws, build a regulatory and enforcement structure, and provide the necessary check and balance of judicial review, often creates a confused, contradictory gaggle of dictates often working at cross purposes and which strain logic and the very rational ordering that gave rise to them in the first place. Understanding the commonly “uncommon law” is like learning manners for the Tea Party in Carroll’s Alice in Wonderland and using Franz Kafka as your expert consultant.
From a policy perspective, Brooks sees this progressive era as a “high-stakes test.” “If “ as he says, “...the country remains safe and the health care and financial reforms work, then we will have witnessed a life-altering event. We’ll have received powerful evidence that central regulations can successfully organize fast-moving information-age societies. If the reforms fail — if they kick off devastating unintended consequences or saddle the country with a maze of sclerotic regulations — then the popular backlash will be ferocious(,)” (NYTimes, July 20, 2010)
The critical question, then, is not if there is to be a technocracy, but how in this 21st Century, is it to be managed and the risks of moderated so that the system does not collapse under its’ own weight? Are there mechanisms available to allow for the basic and necessary uniformity without fitting people into legal and regulatory schemes chokes off the use of common sense and the exercise of discretion?
For any bureaucratic order to work, not the least a highly developed technocracy, then there must be informal moderating mechanisms available to smooth the inevitable confusions and contradictions that will occur in the formal system. Negotiative processes, such as mediation or ombudsmen work, have always provided that buffer. While done more by design in recent years, in the most productive organizations, some semblance of that go-between role has always been essential.
Conflict management work is and will continue to be more essential and important than ever in a technocracy. In the shadows of the formal system must be informal negotiative processes that function as safety valves to escape the sometimes overly strict application of rational governance principles and protocols. This makes for an irony of the first order because the skills and thinking required for effective negotiation can often appear to be non rational and directly at odds with the traditional rational problem solving methodology proffered by the experts in the formal system. To manage difficulties and issues in a highly rationalized technocratic system necessitates the use of creative lateral and non-linear thinking frames and is often accomplished by in-direct and sometimes even surreptitious methods.
Curiously, negotiation---and those who would espouse its’ use--- have always been viewed skeptically, if not with downright disfavor, especially in highly rationalized cultures. Rational problem solving is primarily dependent on logic and reasoning and practitioners pride themselves on being objective and ‘scientific’ in their approach. Effective negotiation practice, by contrast, steps away from and often grates against those traditional notions. While not abandoning the substantive analysis of a problematic matter, the creative problem solving done by negotiators frequently involves relying on intuitive sensibilities to gauge what may be going on under the surface as well. This more subjective approach is questionable to many because it appears to be less precise and non-rational. If one believes there is but one correct answer to a problem, then engaging in negotiation where several possible options might be considered is a dubious venture from the outset. To the extent that a technocracy fosters the illusion that rules and law alone are sufficient for a more rational society, it can become more rigid and less admitting of the informal adjustments generally encouraged or allowed for in negotiated settlements.
Unmoored from set notions of logic, or what is a right or wrong answer to a problem, negotiation allows for multiple alternative forms of rationality to take hold. Negotiation, however, sometimes requires going outside the rules and bending the law. The creativity necessary to solve problematic issues often strains pre-set boundaries; in any organization there is a constant stream of issues where the rule is not clear and require interpretation for reasonable enforcement.
Against the backdrop of ‘zero tolerance’ and the strict adherence to rules, laws, regulations and requirements of precedent requirements, negotiators and mediators are obligated to operate in the more ambiguous terrain of ‘don’t ask-don’t tell” where sometimes workable agreements necessitate bending the rules and coming up with torturous explanations that defy logic. (Benjamin, R.D., “About Rules: Between Don't Ask-Don't Tell and Zero Tolerance,” http://www.mediate.com//articles/benjamin12.cfm, March, 2003) The informal and typically unwritten policy of “Don’t Ask-Don’t Tell” has been practiced for time immemorial; it is a time honored technique of avoiding difficulties and stepping around thorny issues unless or until the people involved are forced to confront the matter directly. Its’ employment by the United States Military as a means of addressing the issue of the service of Gays and Lesbians is not unique except that the policy has for one of the few times in history been brought “out of the closet” and enabled and practiced openly by a formal written edict. In the workplace, many managers necessarily function by selectively following to the letter the rules of the employee handbook in order to maintain a sense of fairness and employee morale; likewise, many marriages survive because one or both spouses practices variations of ‘don’t ask-don’t tell.” And, experienced mediators have learned not to ask too many questions about clients’ tax returns when the numbers on the page do not appear to correspond to the prepared income and expense forms.
In real world negotiations and mediations, even those concerning business and family disputes, ethical, professional and legal boundaries are sometimes strained. While following precedent and order are important principles, applied indiscriminately and without some measure of discretion, absurd results can occur. Negotiation and mediation are the primary means by which such internal contradictions, unintended consequences and other confusions have always been sorted out. In this regard, mediators have much in common with the classic trickster figures of myth and folklore; those stories present in virtually every culture on earth, illustrate how a third party (e.g. a fox, a coyote, a road runner, a supply Sergeant in the military, an off beat detective like Columbo or Monk), might use unconventional means to effectively mediate between irresistible forces and immovable objects to get the job done must be done. The trickster figure, not unlike the mediator, is less concerned about who or what is the right answer to the problem than in making the situation work so that the people involved can survive, To do so, he or she is not unwilling to use either sacred or profane means. (Benjamin, R.D., “Managing the Natural Energy of Conflict: Mediators, Tricksters and the Constructive Uses of Deception,” in Bringing Peace Into the Room, eds. Hoffman, D. and Bowling, D, 2003; “The Dirty, Risky Business of Negotiation,” http://www.mediate.com//articles/benjaminappeasement.cfm, 2008)
This role of the mediator or conflict manager as trickster figure is particularly interesting and sometimes problematic for those working in or within the technocracy. If one is too closely aligned with or part of the technocratic structure, they can act, or appear to the parties involved to be acting, as an agent of the institutional order and his or her usefulness can be eroded and compromised. Ombudspersons are particularly familiar with this issue. For their part, mediators are also susceptible to being co-opted or biased as a result of close associations either with the organization involved or the subject matter. The trend of those mediators who specialize in particular substantive dispute contexts comes with the increased risk that they will rely on substantive expertise and look for the right answer, thereby becoming merely another technocrat and losing sight of the process. Critical to creative problem solving and effective mediation practice is the ability to be able to step outside the technocratic order and to be released from any responsibility to act as an agent of the state, agency, business or corporation involved.
The stakes are high. The Tea Party Movement, some might suggest is an early visceral sign of resistance, albeit an inarticulate one, to the creeping, “Borg”-like technocratic order. The cyber technology that undergirds the technocracy allows for some the greatest and most creative advances in human history but there can be no question but that the technocratic order also presents a real threat. The systems’ ability to track data and enforce levels of social control and regimentation has never before been imposed by any previous government or regime to the same degree.
Apart from the Tea Party folks, plagued as they are by many demons in addition to “Big Government,” a more troubling issue is the apparent lack of discussion of this issue: specifically, how the cultural and legal landscape is shifting and responding to complex issues and what needs to change? In fact, there seems to be a tacit acceptance that laws, rules and regulations are the only way for a rational society to operate. And, just as frogs will not jump out of a pot of water that is incrementally heated up and boil to death as a result, there appears a real risk that we of the technocracy, will expire under the weight of our own laws, unable to flexibly and creatively respond to circumstances, some of which are life and death matters. Frogs, as they were in the Second Plague of the Book of Exodus in the Old Testament, were then and continue to be sentinel specie. Just as in the present day they literally signal through observable mutations in their form or outright disappearance that something is wrong in the environment, their behavior in a pot of water is a compelling metaphor which we disregard at out peril. (Benjamin, R.D., “Lessons from Frogs: The Place of Mediation in Our Cultural Ecology,” Peripheral Visions: AFM Mediation News, September 20, 2000)
Other cultures have disappeared because of a slavish insistence on dysfunctional thinking frames, as Jared Diamond noted in Collapse: How Societies Choose to Fail or Succeed (2005). The faith in pure rational thinking and rational governance that has worked reasonably well in the past century may be insufficient to meet the demands of the complex issues of the present day. If followed without some adaptation, we risk boiling to death in our own hyper rationality. The difference may be in a willingness to negotiate and accept a measure of the chaotic thinking that process obligates for creative problem solving. The future for those practiced in negotiation and mediation is full of promise.
Mediators and negotiators offer an essential measure of humanity and some sense of control in a system that otherwise appears to be unmanageable. But if they are to be effective, they will have to hold firmly to the basic precepts of conflict management practice and take great pains not be co-opted to do the bidding of the technocracy and become merely agents charged with enforcing the status quo. This has less to do with whether or not they work inside the organization or as outside private contractors, than their state of mind. Practicing the craft of negotiation will require them to be sufficiently facile, flexible and protean in approach so as to work inside the technocratic order with an outsiders’ attitude. (Adler, P. “Protean Negotiation: Rejecting Orthodoxy and Shifting Shapes,” in The Negotiator’s Field Book, eds. C. Honeyman and A. Schneider, 2006 Negotiators and mediators must be able to maintain their balance in uneven terrain; if they are on the inside they will have the advantage of knowing how to work the system; if they are on the outside they will have to pick up on the politics of the system quickly. In that sense, the technocratic order is no different than any other bureaucratic system. Working inside offers the advantage of moving into difficult situations with some measure of credibility and acceptance already established while being an outsider gives the advantage of being able to avoid possible biases. Regardless of being on the inside or outside, the most effective negotiators and mediators have exhibited that kind of flexibility that goes well beyond merely being a disengaged and objective neutral. Curiously, borrowing from the Dalai Llama, a good negotiator or mediator must carefully study the rules to know how to break them.
Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care. A lawyer and social worker by training, he practiced law for over 25 years and now teaches and presents professional negotiation, mediation, and conflict management seminars and training courses nationally and internationally. He is a standing Adjunct Professor at the Straus Institute for Conflict Resolution of the Pepperdine University School of Law, at Southern Methodist University’s Program on Conflict Resolution and in several other schools and universities. He is a past President of the Academy of Family Mediators, a Practitioner Member of the Association for Conflict Resolution, and the American Bar Association’s Section on Dispute Resolution. He is the author of numerous book contributions and articles, including “The Mediator As Trickster,” “Guerilla Negotiation,” and “The Beauty of Conflict,” and is a Senior Editor and regular columnist for Mediate.com.
|Free subscription to comments on this article||Add Brief Comment|