Mediation and Negotiation Are Designated As Criminal Acts: Maybe It’s For the Better


by Robert Benjamin

June 2010

Robert Benjamin

John Paul Lederach, Bill Lincoln, and others who have worked tirelessly to place in action their “moral imagination” by extending the practice of conflict management to many and varied extreme disputes in the world had better watch out. And this is fair warning to any seeking to join them.

Should you be a private consultant or working for an NGO, e.g., Mediators Without Borders, Mercy Corps, or the Red Cross, who might dare to meet with, provide training in mediation, or suggest negotiation strategies that might encourage a nonviolent approach to any “designated” foreign “terrorist” organization---there are many---you can be charged with the crime of “material support” in violation of the Federal Patriot Act of 2001.

The United States Supreme Court ruled today in Holder v. Humanitarian Law Project, in a 6 to 3 decision which included both Justices Kennedy and Stevens, the presumptive swing votes, that the intentionally comprehensive, or more accurately, sweepingly broad law passed after the September 11th attack, overcame any First Amendment free speech concerns to justifiably criminalize not only the direct aid of cash or weapons, but the benign assistance of training or advice in the less violent ways an organization might achieve it’s goals. (Adam Liptak, “Supreme Court Affirms Ban on Aiding Groups Tied to Terror,” New York Times, 6.21.1010)

Ralph Fertig, a 79 year old civil rights lawyer sought to do exactly that by aiding a militant Kurdish group in Turkey in finding more peaceful ways to achieve its goals but was blocked by fear of the “material support” provision of the law. (Adam Liptak, New York Times, February 11, 2010)

Supreme Court Nominee, Elena Kagan argued for the Obama administration in favor of the broad application of the “material support” provision even suggesting that it was not a First Amendment issue but rather limited to conduct. Ironically, Chief Justice Roberts, one of the anchor conservatives, dismissed her view that it was not a free speech issue, albeit one where Congress could appropriately curtain citizens rights to offer “expert advice or assistance,” even if it were for peaceful purposes.

The Court’s decision has obvious and significant implications for those interested in peace and human rights advocacy, and by close extension to professional conflict management professionals, being the purveyors of some of the core strategies and technical skills essential to effectively do that work.

There is positive twist that might be applied to this otherwise contorted and irrational outcome of supposedly rational legal principles that limit the pursuit of sensible and nonviolent settlements of conflict. For the teaching and training of negotiation and mediation to be criminalized must mean the skill sets have become sufficiently recognized as potent and sufficiently effective to be a threat. The only question is now, a threat to what? Fewer terrorist acts, bombings, piracy, death?

There is some perverse satisfaction to be taken with the Court’s decision. Perhaps the more negotiation and mediation are seen as subversive activities the better they will be delivered and received. Howard Nemerov, a Pulitzer Prize winning poet, many years ago observed the best way to interest people in poetry, as he observed an otherwise seemingly innocuous and wholly useless pursuit, was to keep it a secret. Leaving poets to produce their product and earn a living against the odds in a capitalist marketplace, and for seekers to be obligated to discover the value and power of carefully juxtaposed words for themselves is a powerful incentive that can overcome the most stubborn resistance.

Most people are similarly resistant to the idea of negotiating; it is seldom the first or preferred choice of people in conflict. Be they big or small disputes, there is always that feisty matter of the principle worth dying for. The human brain doesn’t help much, there being no neuro chemical inducements to negotiate as there are to fight or avoid real or perceived conflicts. Negotiative processes, while supported by evolutionary necessity of cooperation, still must be a conscious and intentional act that generally doesn’t kick in immediately. Many people need to thrash around, sometimes coming perilously close to killing themselves, before they are sufficiently exhausted and compelled to look at alternative strategies to survive. Then is when negotiation and mediation begin to look more attractive.

Making mediation and negotiation into secret strategies, or better yet, making the suggestion of them into criminal acts might aid to overcome the resistance. I suggested as much in “Mediation as a Subversive Activity”, and “Guerrilla Mediation: The Use of Warfare Strategies in the Management of Conflict and Pursuit of Peace” (www.rbenjamin.com, 1998 and 1999) Having negotiation labeled as illegal places it further outside the box and makes it more enticing; it becomes a last resort that gives proper importance to the conflict.

I suspect the United States Supreme Court knew of this constructive use of irrationality in rendering their decision in Holder v. Humanitarian Law Project. With a wink of the eye, the six conservative justices were daring us as human beings to do whatever is necessary, including breaking the law and negotiating, to grab hold of the craziness and absurdity of the conflicts that plaque the world. The left leaning justices, having no sense of humor, seem to continue on insisting on being rational. What a drag.



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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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