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Aragaki - The Dao of Friendly Skies

by Art Hinshaw
April 2017

Indisputably

Guest post by Hiro Aragaki

Art Hinshaw

FOI Hiro Aragaki (Loyola-LA) provides his thoughts on last week’s United Airlines debacle.

In the past week the Internet went ablaze with news reports of United Airlines passenger Dr. David Dao’s merciless ejection from a Louisville-bound flight.  Members of the AALS Contracts list serve picked the incident apart from multiple perspectives—breach of contract (by whom?), racial discrimination, international conventions on the subject, self-help v. legal remedies, etc.—with the discussion getting heated enough at one point that several members summarily unsubscribed from the list.  By contrast, I have heard nothing on the subject from ADR corners.  Zero.

Is there a reason for that?  What do you all think?  What value-added do we bring to this discussion?  It would be great to get some input from readers.  Here are some possible starting-off points, and I welcome others:

  1. This seems to me a prime example of the need for more conflict resolution/negotiation training. In the heat of the moment, did anyone use what we would think of as effective negotiation, de-escalation, and problem solving skills to resolve the conflict?  Were any of them trained in such skills to begin with and, if not, why not?  This also would have been a perfect moment for a flight attendant to announce over the intercom: “If you are a mediator, please ring your call button.”  Did the flight attendants not think to do that or was that just not in their script?  (Well, maybe only on a flight to San Francisco!)
  1. Dao has hired Thomas Demetrio, a heavyweight plaintiffs lawyer, who framed the dispute in the following terms. “Are we going to continue to just be treated like cattle?  Bullied? Rude treatment?  We all have had enough … angst for flying as it is. Don’t treat the people who helped make you be the corporate entity you are like Dr. Dao was treated….”  How helpful is this frame?  Is it accurate?
  1. Demetrio’s comments—like the comments of most others—reflect quite a binary view of the situation: Big, bad corporate actor versus powerless individual consumer. But does this framing conceal a more complex network of responsibility?  Consider that the flight was not operated directly by United but by Republic Airlines, over which United probably had little day-to-day supervisory control and in whose professionalism United had to trust.  Why is that relevant?  Well, most people fault United for calling in the Chicago Department of Aviation (CDA) rather than simply offering Dr. Dao more compensation to leave voluntarily.  But do we know if Republic even had that discretion under its contract with United?  Assuming it did not, what choice did Republic have in this situation but to call in the CDA?  The CDA officers, of course, made the matter exponentially worse than it should have been and also likely violated CDA official policy in doing so.
  1. None of this is to deny that United is legally responsible for what happened within its purview. But it does shift the conversation from a blame game to one of “contribution,” which is the move that Difficult Conversations encourages us to make.  Is that move helpful here?  I suggest that it is, if only because it helps us see this tragic event as the culmination of a lot of inputs, not all of which may stem from malice or even negligence.  Yes, United could have anticipated this type of situation and placed more checks and balances in place—for example, in its contract with Republic.  But what if that would have been more costly to administer?  In that case, negotiating a Republic contract with very rigid protocols for this type of situation may have looked like quite a rational choice to United ex ante.  Moreover, it is a well known fact that the airline industry’s profit margins are razor thin and that cutting costs is the main way that airlines make money.  This race-to-the-bottom market may explain why United subcontracted out the (presumably) lower profit Chicago-Louisville segment in the first place.
  1. Continuing with the Difficult Conversations theme, here’s a really tough question for me: Could some of this have been avoided if Dr. Dao had not resisted and chosen instead to document the situation and file suit later (especially if, at best, it is unclear whether United had the contractual right to bump him off)?  In other words, did Dr. Dao “contribute” to this problem, and if so by how much?  5%? 1%? 10%?  On the other hand, is it actually a good thing that he did?  Consider that if Dr. Dao had left peaceably, society would have lost out on the information and public discourse benefits that came out of it.  There would be fewer calls for reforms of the overbooking system as there are now.  It also would not have been worth Dr. Dao’s while to pursue a claim against United.
  1. What does it say about our society when the only way for real change and healing to happen is for these types of explosive conflicts to come to the surface—blood, missing teeth, and all? Why can’t corporate actors like United pour some more thought into anticipating the unintended consequences of cutting corners in the blinkered pursuit of maximizing shareholder value?  And instead of seeing Dr. Dao’s upcoming court battle as one greedy corporation’s comeuppance, what would it take for us as a society to move past the blame game of who is right and who is wrong—that is, to pay more attention to the systemic roots of this dispute and on preventing conflicts like this from happening in the first place?

Your thoughts?

NB: If it sounds like I’m trying to defend United, I’m not.  As an Asian-American male this incident hits too close to home for me in ways that I cannot even begin to explain here.

Biography


Art Hinshaw’s research and teaching interests lie in the field of alternative dispute resolution (ADR), primarily mediation and negotiation. His research bridges ADR theory and practice, and his teaching responsibilities include the Lodestar Mediation Clinic and Negotiation among other ADR courses.

Professor Hinshaw is active in the ADR community having served on several academic and professional committees at the state and national levels. Currently, he serves as a member of the ABA's Standing Committee on Mediator Ethical Guidance. Additionally, he is a Senior Fellow at the Center for the Study of Dispute Resolution at the University of Missouri School of Law and is a contributor to Indisputably, the ADR Prof Blog.

Professor Hinshaw joined the College of Law faculty after teaching at the University of Missouri School of Law and at the Washington University School of Law in St. Louis. Before his academic career, he practiced law in Kansas City, Missouri.



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