On Negotiation, Extremism and History - Book Review of Brown's and Marriott's ADR Principles and Practice


by Robert Benjamin

ADR Principles and Practice, 3rd Edition, Henry Brown and Arthur Marriott, Sweet & Maxwell, London, 2011. Available on Amazon.com in June, 2012.

May 2012

book cover

As I now tend to take a more backward view of my life and professional career, the saying “youth is wasted on the young” increasingly comes to mind along with it’s companion, “the young are too youthful to appreciate the flow and importance of history.” The latter has particular resonance working as a negotiation consultant and mediator. I frequently think younger people, without significant life experience, tend to be more more sure of the right answer and less tolerant of the amiguity obligated by negotiating. Something like, when you are young, if you have no passion for a cause, you have no heart, and when you are older, if all you have is passion, you have no brain.

I know for me, I’m now forced to admit that when I was young, I had more passion than sense. Like many others studying political science and history in college in the later half of the 1960’s, I believed that peace was merely the opposite of war and the choice was a simple one. That view was, of course, easier to hold being a relatively secure student questioning a far- away war in Vietnam that appeared to make little sense and President Lyndon B. Johnson was an easy target for my moral contempt. Moreover, as a good American, living in what now appears to have been a bubble, isolated from the turmoils of the rest of the world, I vividly recall the smug pride I took in the notion of American exceptionalism, I was taught and accepted largely without argument. Unlike those Europeans, encumbered by centuries of religious wars, and still yet to fully emerge from the grip of the Communist Manifesto or the Sturm and Drang of Fascism, we Americans were of a “can do, pragmatic, non-ideological” nature. Europe, on the other hand, was seized by extremists like The Green Party and the Bader-Meinhoff Gang. As Americans, we had supposedly escaped the dysfunctional politics that were tearing at Europe.

Our more moderate pluralistic system of democracy was propped up as the model for reconciling diverse interests. And, while I remember little specific use of the term “negotiation” back then---which is revealing in itself---that skill set is, obviously, the primary modus operandi of such a system. Ours was a Civic Culture, as two noted political scientists of the time, Almond and Verba, would call it. Daniel Bell, a prominent sociologist, would go so far as to profess in his book, The End of Ideology (1960), that the United States had progressed to a more mature and sophisticated form of political discourse. This view held for many years. When I had the opportunity to teach negotiation and mediation in the former Soviet Union and Eastern Europe countries emerging from Communism in the late 1980’s and early 90’s, some colleagues pessimistically suggested “they,” coming from authoritarian regimes, did not have sufficient cultural grounding or experience to appreciate or practice negotiation---only “we” of the democratic world were so able. What I discovered is every human being negotiates in some manner or another; in more repressive systems, organizations, businesses or families, those negotiations are merely more likely to be done quietly in the shadows.

In the course of my lifetime, however, Europe and the United appear have shifted directions or outright reversed their earlier courses. The American civic culure appears to be under siege, if the present U.S. Congressional gridlock is any measure. At at the same time the once extremist political climate of Europe has since dramatically shifted. In 1993 the European Union, one of the most dramatic and far reaching accords of the 20th Century, was negotiated into existence by the member countries, against considerable odds. The European Continent is a case study in wars, religious and otherwise, strong animosities and rivalries between the memeber countries, accumulated over tcenturies. While the EU faces serious issues, the most of recent of which is the current finanial crisis, and the agreement is constantly second guessed by many---a circumstance that plagues most negotiations of complex matters--- the basic structure has held. So over the course of 50 years, American pragmatism and faith in pluralism once taken for granted, is being sorely tested, and a once hopeless Europe has vindicated the power of negotiation as an effective mode of conflict management. So much for he end of ideology and the presumption that the dispostion to negotiate is solely a function of culture. As it has been throughout history, extremist politics, war, and negotiation have always moved through cycles; extremism, sometimes resulting in war, necessitate negotiation to end the warfare or moderate the extremism, which in time re-occurs. Despite the shifts, what remains historically significant is the emergence of the formal field of study and the professional practice of mediation, arbitration, and other modes of conflict management.

The conflict terrain of the last 30 years is an important backdrop to a complete appreciation of ADR Principles and Practice, Third Edition, by Henry Brown and Arthur Marriott, published by Sweet and Maxwell in 2011. The authors, both from the United Kingdom, demonstrate an appreciation for the vagaries of history and gritty realities of mediation, arbitration and conflict management practice garnered from many years of life and professional experience. Arthur Marriott, QC, has practiced as a lawyer and arbitrator for over 40 years and is a member of the Governing Board of the International Council for Commercial Arbitration. He is one of the first two solicitors in history to be made Queens Counsel. Henry Brown, responsible for the mediation of the book, was born in Cape Town, South Africa, and came of age during Apartheid before emmigrating to the U.K. in 1971. As a young lawyer, he was on the front lines in that harsh political climate and had occasion to represent Nelson Mandela when he was imprisoned at Robben Island. After practicing law for some years, gravitated to mediation practice in the early 1980’s and became one of the earliest practitioners, trainers and proponents of family and commercial mediation in Britain, South Africa, Europe and Hong Kong.

While a reference text in purpose and appearance, it is eminently readable and useful beyond that albeit important purpose. This is perhaps all the more true because the authors are not from the United States. Thus, especially in the mediation section, while Brown is respectful of the early beginnings of formalized mediation practice in the United States he does not hesitate to offer a fresh, broader and different view of practice. Unfortunately, that this book is not published in the United States makes it less likley to receive wide distribution it richly deserves. Many American practitioners, and not a few academics, in the conflict management field tend to be provincial and view work by those outside the U.S. as less relevant.

This book offers not just the basic “how to’s” of mediation, but as well, a sophisticated discussion of the “whys and what for’s” of practice. Equally important, a reader might gain a fresh perspective on practice helpful in staving off the risky habit of practice orthodoxy and slipping into a “one size fits all” model or style. The authors draw thoughtful practice insights not only from the U.K. but from mediation, arbitration and conflict management practices in Europe, Australia, New Zealand, Singapore, Hong Kong, and many other places around the world.

ADR Principles and Practice is a substantial compendium of some 868 pages. It is a cross between a Wikipedian-like encyclopedia and Douglas Yarn’s Dictionary of Conflict Resolution, and could hold it’s own on a bookshelf next to Chris Moore’s, The Mediation Process. It offers a comprehensive view of managing disputes across substantive dispute contexts and styles. Perhaps, most remarkably, this book links conflict management concepts with broader thinking frames of approach, identifies variations of practice styles and suggests the risks and benefits of each. No small task and there are few other books that even attempt to make these connections, let alone do them so well.

While the book is taxanomically organized in a way that makes the discussion of a particular issue searchable and would likely make Charles Darwin proud, it is worthy of just being randomly opened to any particular page where the reader is almost certain to trip over a small, gratifying and thought provoking nugget for reflection or discussion. For example, on pages 509-510, in sections 22-050 and 051, on “Cautions and Reservations” in “Working With High Conflict Parties,” Henry Brown warns of “making inappropriate assumptions about any party(.),” noting that, “…a party who is maintaining a strong position may well have a justification for doing so, however unreasonable it may appear to be.” He then gives body and perspective to the practice hint by citing George Bernard Shaw, “…the reasonable man adapts himself to the world, the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.” The writing and discussion of issues is so vital and relevant that it is perhaps unfortunate that it is constrained to a reference text where it is more likely to be overlooked. But, there is little to be done about that concern except to recommend it as strongly as I do.

(ADR Principles and Practice is scheduled to be released in paperback in June, 2012 and available on Amazon.com.)



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Biography




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. 

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Website: www.rbenjamin.com

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