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‘Truthiness’ is to a rigorously thought out and vetted idea what spam or macaroni and cheese out of a can, is to a carefully prepared gourmet meal. It is intellectual comfort food--- warm, mushy and filling. It’s O.K. once in a while, but a steady diet of the stuff, with the salt and trans fat content, will kill you. The prevalence of truthiness may well be just another reflection of the deterioration of the culture in general, that includes the substitution of video games for education, and the acceptance of wikipedia as an authoritative reference.
Truthiness has infected ‘real’ news reporting, and most disturbingly, the intellectual dialogue of many in academia and professional practice, including, and most dishearteningly, the conflict management field. Many models, styles and approaches to mediation and conflict management practice are little more than truthiness: fluffy, familiar and feel good stuff paraded around as substantive ideas and too easily accepted in the contemporary mediation culture. Unexamined, that truthiness becomes ossified into orthodoxies of style, and in the extreme, the stuff of cults. ‘Truthiness,’ unless held in check, not unlike other viruses, once gaining a foothold, spreads quickly and attacks the muscle and bone of its’ host, whether that host be a person, a computer or an organization or profession. Truthiness can paralyze thoughtful discussion. Just like sacred myths and the seeds of truth carried in conventional wisdom, with which truthiness has much in common, all being based on stories and anecdotal evidence, they, they are emotionally embedded and not easily altered. Those who try, are often cast as heretics.
The intellectual bearing of the conflict management field, as an emerging profession, has never been on solid footing. Cross bred from a variety of traditional disciplines, including law, sociology, psychology, and the counseling professions, conflict management has frequently found itself shunned as a diluted or impure mix that does not easily fit in any of them. However, while problematic for the academic and professional schools, it was and is just that kind systemic thinking that makes conflict management and mediation study so attractive and important. Effective conflict management and problem solving requires the integration of multiple disciplinary perspectives, knowledge, techniques and skills. Intellectually and professionally, it is precisely that holistic thinking frame that distinguishes the conflict management field and allows an escape from the set parameters of the established disciplines.
The conflict management field is particularly susceptible to the infiltration of truthiness. Because of it’s very nature of being a composite of the thinking of many disciplines it is typically unaligned to any particular discipline and left exposed to the infiltration of less rigorous thinking and fragmentation. Mediation practice has been divided into separate dispute contexts with the clear suggestion that family mediation bears no resemblance to practice in civil, workplace, or health care disputes. Further, some disciplines have sought to brand it as their own and set rules for who is qualified to mediate, and how and when mediation should be allowed. Systemic thinking is but a faint memory. Two examples are readily apparent. First, to make it comfortingly familiar, the style of mediation commonly done in the legal context, ‘legal mediation,’ is often likened and reduced to being merely a variant of the legal case settlement conference. Second, at the other end of the spectrum, a strong contingent of practitioners view mediation as an off-shoot of a therapeutic, spiritual, or faith based endeavor, of which transformative mediation is a good example.
Truthiness aids many lawyers to think of mediation as essentially the same as the familiar case settlement conference, merely renamed. They have not bothered to consider how it might be separate and apart in purpose, strategies or necessary skill training which might be discomforting.
Stories of how the legal system is broken have stirred professionals, including many lawyers to pursue alternative modes of dispute resolution. The villain is an ‘adversarial’ system that dehumanizes both the people and professionals caught up in the web of the legal process. The traditional lawyer is cast as the epitome of a mean-spirited, competitive, warrior-type, who practices without mercy. This popular and simplistic view conveniently avoids observing how the legal system merely reflects the views of the larger culture to conflict. Nonetheless, many lawyers self describe themselves as ‘recovering attorneys,’ as if practicing law had been a crime.
As well, lawyers, judges, law Schools and even the American Bar Association’s Section on Dispute Resolution, have embraced mediation, but choose to endorse their own special brand of truthiness about the mediation process---an approach that feels familiar and good to them. They prefer a style and structure that is essentially indistinguishable from what they have traditionally done in negotiating out of court settlements in the past. With the ‘lawyer-mediator’ (the hyphenated term is a commonly used self-descriptor) in charge, the mediation ‘hearing,’ as some term it, bears remarkable similarity to a case settlement conference and has many of the earmarks of the court room process. Often beginning with a mini lecture by the mediator about the process and rules of procedure, counsel for each party will then give opening statements and from there the parties and their attorneys will retire to separate rooms, with the mediator shuttling back and forth between them in separate caucuses. Not infrequently, the mediator will offer a case evaluation, ostensibly to aid the parties ‘reality testing.”
While lip service is paid to the notions of client self-determination and other principles of mediation practice, for most, the referring lawyer, not the parties’ themselves, are the clients to be satisfied. Mediation, as often practiced and urged by Court, is geared toward ‘moving cases.’ Law school courses on negotiation and mediation practice have fallen into line in teaching this style of ‘legal mediation. Of course, collaborative negotiation is stressed. Getting to Yes, is a Bible of sorts, and interest based negotiation is the predominant mantra. Nonetheless, upholding the precedent and straining toward the familiar, the essential difference between mediation and the court process is the substitution of a ‘neutral’ mediator for a ‘neutral’ judge. This truthiness allows lawyers to pretend to be doing mediation while continuing to be ‘real’ lawyers.
For some lawyers, however, even the low-key profile of the ‘legal mediation’ model is uncomfortable. In recent years the Collaborative Law has become a’ courant, in large part because it allows lawyers to remain lawyers and makes few demands on them to scrutinize their thinking frame and does not obligate them to be discomforted in the role of a third party. Undergoing the conversion from being a traditional attorney to a ‘collaborative law’ practitioner merely requires signing a pledge to work only with other counsel who have similarly committed to being collaborative, and that they agree to practice in a kinder, gentler and more reasonable fashion in pursuing the settlement of the parties’ legal issues. Varying degrees of training might be requested but there is no significant departure from traditional practice approaches to conflict or negotiation and the collaborative law practitioner, not unlike the traditional attorney, remains primarily predominantly responsible for the problem solving.
The powerful allure of the familiar is worthy of note. Robert Sapolsky, a noted neuro-scientist, suggests that humans, along with other animal species, have what appears to be a biologically ordained penchant for being creatures of habit. We are open to new experiences through young adulthood, by roughly age 25, however, we become set in our ways. Familiar habits are borne in part from having obtained some measure of success in our prior behavior, and in part from the need for maintaining the illusion of stability. In short, the truthiness of the familiar is deeply ingrained and not easily altered even under the best of circumstances. (Interview with Robert Krulwich, National Public Radio, August 16, 2006).
Many have gravitated to the conflict management field and mediation out of a philosophical and ideological belief, or spiritual faith that conflict is an opportunity for moral growth. This view is often based on the truthiness notion that if only people would be more cooperative and less competitive the world would become more peaceful.
Faith based practice is not in and of itself a bad thing and obviously offers a personal source of motivation for many practitioners. However, faith based belief is an insufficient and dubious premise for the intellectual foundation of the field. Even the teaching or techniques and skills have been contaminated by the truthy premise that caring is enough. Many teach “listening from the heart,” with focus on ‘healing’ the relationship between the conflicting parties in order to foster their moral growth.
The pretentiousness and presumptuousness of this truthiness aside, the idea of having a field believe that conflict can be turned into peace is akin to turning water into wine. Of course, no argument will be able to counter the belief bolstered by stories and anecdotal evidence of miracles occurring wherein a proverbial Scrooge figure has an epiphany and his hard heart is softened by forgiveness. It might happen, but not often and not to be relied upon. This form of truthiness appears to be more about salving the needs of the practitioners than providing competent service to parties embroiled in real life difficulties. Practice models geared toward creating transformative experiences cross over the line from thoughtful and reflective mediation practice into a form of therapeutic healing and a spiritual laying on of hands.
The more truthiness infects the conflict management field, the more it is marginalized and its’ relevance and professional validity called into question. Already, ‘Legal mediation,’ especially as it is increasingly becoming mandated and institutionalized, is becoming thought of as little more than another hoop to jump through before going to court. At the same time, many people in conflict are not seeking moral growth, a spiritual experience, or a more fulfilling relationship, they just want to be done with the immediate dispute.
Some mediators and negotiators have engaged in a rigorous course of study of theory and practice approaches drawn from a number of disciplines. Most, however, have limited their focus to only a few disciplines such as, communications, social psychology, sociology, and bits and pieces of anthropology, that, while helpful are not sufficient in themselves. Much of the literature concentrates on relationship dynamics, multi-cultural perspectives, values, and formulas for the allocation of resources. The work is often redundant with a high frequency of repeatedly citing the same authors and texts as authoritative. A review of the titles of journal articles and conference workshops is revealing: “the collaborative process,” “peace, peacemaking, and harmony,” and of course, “the neutral mediator.” Even assuming the competency of the work, they illustrate a certain myopia and decided bias in favor of the familiar belief that the primary source of conflict is merely a failure to communicate, and that peoples’ ‘thinking errors’ can be corrected by logic and the persuasiveness of rational explanations. None of which has been borne out scientifically.
The teaching and training in mediation and negotiation, by professional trainers, law schools and graduate conflict resolution programs of mediation is often so formulaic that it has effectively become an incubator for truthiness. There is a decided preference for teaching set rules and prescriptions. The rationale is that students should first learn a set and simple model before being encouraged to think about why and what they are doing as a negotiator or mediator. The attraction of the formulaic should not be minimized: note that the most popular articles posted on Mediate.com are those that have numbers in the title, “the 10 best techniques… 5 worst mistakes… 15 exercises for better abs and 6 for buns of steel… .” The formulaic teaching approach is not unlike the pills and exercise machines advertised in late night info-mercials that tout the easy way to a perfect body. I suspect that a soon to be published book (if not already out), will be, Mediation For Dummies.
The formulaic allows lawyers to rationalize that mediation is just like legal practice and for counselors to liken it just another form of counseling. Of course, some programs avoid the formulaic entirely, preferring to focus purely on abstract philosophical principles of pursuing social justice and peace in the world, undisturbed by the realities of the practical world. The most common observation of students, after viewing a difficult mediation or negotiation process, is about how tedious and difficult it appears to be. Only slowly and painstakingly to they come to realize that, more often than not, parties in difficult matters, back into an settlement out of sheer exhaustion and out of necessity. Seldom do they find the mystical “win/win,” elegant solution reported to have been sighted in far too many texts.
Experienced mediators know that in addition to careful study and an active intuitive sensibility, tenacity and determination---sheer stubbornness---are often the keys to success. Yet, truthiness lulls many into believing that disciplined study and preparation are unnecessary, preferring instead to believe that more cosmic notions of forgiveness and the eradication of social injustice and ‘enmity’ between people. They prefer to avoid conflict and pursue the study of peace. Ironically, however, few peace study programs address how to manage the many conflicts their ideas will stir. As Sun Tzu suggested thousands of years ago, “If you want peace, study warfare.”
The thinking and perspectives of other disciplines must be imported into the conflict management field. Essential for the complete and thorough understanding of conflict and negotiation, and notoriously overlooked, is the work of neuro-scientists about how the human brain functions, processes emotional events and conflicts and ultimately comes to decisions. From physics, the theories of Quantum Mechanics, Chaos and Complexity, all offer essential insights into managing organizational conflicts. Little has been discussed about the history of negotiation, as if the field had only been recently invented, and dismissing out of hand the thinking past great negotiators and mediators, including among many others, Sun Tzu, De Callieres, Tallyrand, and Abraham Lincoln. The philosophical underpinnings of the field have also been largely ignored. Descartes, Spinoza, Rawls and Rorty, offer perspectives relevant to conflict management work. Likewise, the influence and importance of religion and theological perspectives on conflict and negotiation are always present, but should be immediately apparent in the ongoing conflicts in the Middle East, and Europe, but seldom discussed. Even study of the visual arts, music and theatre are invaluable in the full appreciation of the negotiation and mediation processes.
The antidote to the ‘truthiness’ virus and the resulting orthodoxies in style it spawns in the conflict management field is the fresh perspectives of other disciplines brought to bear to broaden and deepen the understanding of the nature of conflict and to test many of our working assumptions. The notion, for instance, “people can be separated from the problem,” commonly proclaimed, is highly suspect, as is the ideal that people are capable of being “cool headed reasoners” in their decision-making. There is no doubt that it is more comfortable to hold on to the familiar and easier to approach parties’ in conflict, not as they are, but as we might hope for them to be. The strength of this field has been the insistence of those drawn to conflict management and mediation practice to challenge the molds of their professions of origin and fundamentally alter traditional thinking frames. Ironically, the same vacuum that allows truthiness to spread can allow room for rigorous and innovative thinking to develop. It merely requires that we leave our comfort zone and challenge ourselves.
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.
The views expressed by authors are their own and do not necessarily reflect the views of Resourceful Internet Solutions, Inc., Mediate.com or of reviewing editors.