Not Even Wrong


by Barry Goldman

December 2008

Barry Goldman The physicist Wolfgang Pauli…would sometimes exclaim "wrong" (falsch) or "completely wrong" (ganz falsch) when he disagreed with someone. Near the end of his life, when asked his opinion of an article by a young physicist, he sadly said "it is not even wrong" (das is nicht einmal falsch). (1)

I get the same sad feeling as I survey the state of ADR. I'm afraid that for many of the most respected writers in the field being wrong would be an improvement.

Take for example Bringing Peace into the Room: The Personal Qualities of the Mediator and Their Impact on the Mediation, a much anthologized article by Daniel Bowling and David Hoffman. It begins this way:

Empirical studies of the mediation process consistently show high rates of settlement, as well as high levels of participant satisfaction. These results seem to occur regardless of mediation styles or the philosophical orientation of the individual mediator.... Indeed, the history of mediation, as well as our own experience, shows that mediation sometimes works even when the mediator is untrained. Is there some aspect of the mediation process -- wholly apart from technique or theory -- that explains these results?

The authors go on to provide this answer:

[T]here is a dimension to the practice of mediation that has received insufficient attention: the combination of psychological, intellectual, and spiritual qualities that make a person who he or she is. We believe that those personal qualities have a direct impact on the mediation process and the outcome of the mediation. Indeed this impact may be one of the most potent sources of the effectiveness of mediation... As mediators, we have noticed that, when we are feeling at peace with ourselves and the world around us, we are better able to bring peace into the room. Moreover, doing so, in our experience, has a significant impact on the mediation process. (2)

This is not something I pulled off of some flakey website. It comes from the textbook I use to teach my ADR course at Wayne State University Law School. Lawyers everywhere would recognize the book. It’s one of those big red and black jobs with gold lettering that cost $122. This is mainstream thinking in the ADR business. And it is not just nonsense, it is pernicious nonsense.

The model that can best help us understand the mistake being made here is the history of medicine. For the first several thousand years of medical history doctors had no idea what they were doing. Sometimes they tried a poultice, sometimes a pessary, and sometimes a purgative. It didn't matter. Sometimes the patients got better and sometimes they died. No intervention was any more or less effective than any other. What was to be made of this?

What some people made of it is that the effectiveness of an intervention has to do not with the intervention itself, but with the spiritual purity of the intervener. If the doctor was ritually purified the intervention would work. If not, not.

This belief - precisely this belief in the necessity of ritual purity - delayed for centuries the discovery of antisepsis.

And it is precisely this mistake that we are making in ADR today. All the vast literature on "mindfulness" and "presence" and inner peace, the advice that mediators need to meditate and center themselves before and during their mediations, is deluded in just the way that the physician is deluded who fasts and prays instead of washing his hands.

No one who knew what he was talking about would make that mistake. When we discover the dispute resolution equivalent of antiseptic we won’t make it either. But that discovery will only come about if we dedicate ourselves to careful empirical investigation of testable hypotheses. As long as the field contents itself with producing article after article, conference after conference, book after book on the subject of “mindfulness” and as long as introspection is its chief investigative tool, real progress toward understanding will be delayed and the field will continue to wander in ignorance and superstition.

End Notes

1 R. Peierls. Biographical Memoirs of Fellows of the Royal Society 5 (February 1960), p. 186 quoted in P. Woit. Not Even Wrong: The Failure of String Theory and the Search for Unity in Physical Law, Basic Books 2006, p. xii.

2 reprinted in Resolving Disputes: Theory, Practice, and Law, Folberg, Golann, Kloppenberg Stipanowich, Aspen 2005, p. 268-9.



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Biography




Barry Goldman is a Michigan-based arbitrator and mediator of workplace disputes. He is also an adjunct professor at Wayne State University Law School where he teaches courses in negotiation and ADR and the author of The Science of Settlement: Ideas for Negotiators, published by ALI-ABA in 2008. He can be reached at bagman@ameritech.net 



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Comments



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 Alasdair ,   Sydney, Australia    12/15/08 
 Synthesis not binary solutions 
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It seem ironic that Mr Goldman seems to advocate (in this instance) a binary approach. Ignore the emotions, don't worry about the effect that your long standing family problems might have on your ability to mediate effectively etc., to a process that attempts to fuse the needs, wants, and desires of those in dispute, into a result they can all live with. By nature, mediation could be seen as a process of synthesis. As several of the above commentators above have mentioned we risk throwing out the baby with the bathwater, if we ignore the value of being aware that our own mental state has on the process. I doubt any mediator thinks that just being well centred alone will help solve a dispute. On the medicine analogy, while undoubtedly "ignorance and superstition" have held back progress in that area. The politicisation of and entrenchment of the orthodox view in medicine have led to an expensive and cumbersome system that finds itself in crisis, partly through the refusal to include complimentary medicine, and look at other ways, where appropriate. Let's not see mediation crippled in the same way.
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 Robin Amadei,   Lafayette CO    12/11/08 
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Here is another perception to consider. When I read Mr. Goldman's quote out of 'Bringing Peace Into the Room' I read the quote as meaning that there are many models of mediation out there and they all can be effective, depending on the case, the parties, where they are in the process, and the mediator's own style preference. What often makes a difference in case settlement and in party satisfaction, no matter what style is used, is the mediator's presence and intuitive sense about what to do, or not to do, next. I believe that mediator presence and intuitive sense is developed through intentional development of insight and attention to personal growth (in addition to more traditional mediator continuing education, of course). All of this put together is what the mediator brings into the room. A mediator is more than just the techniques that he or she employs. His or her essence that he or she brings into the room does make a difference, though this is hard to measure or grasp. As a mediator becomes more in tune with what he or she brings into the room and is truly and 100% present with the parties, the opportunity for transformative shifts, in addition to settlement, is enhanced. I'd like to suggest that Mr. Goldman (who, by the way, wrote the excellent book "The Science of Settlement") consider that the field of mediation, as well as mediators themselves, will be most impactful and most credible by embracing both sides of the spectrum. If we just focus on heart (right brain) our field will not attain the credibility and respect that it deserves and perhaps could be discounted as a simply a woo-woo alternative. If we just focus on cognition, we run the risk of leaving the potential gains of relational transformation, and personal insight on the table. The field of mediation, mediators themselves, and our society as a whole will need to develop the ability to think systemically, using both sides of our brain in service to peacefully resolving whatever conflicts come before us.
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 Paula  ,   Grundy VA    12/11/08 
 Whose Wrong? 
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Take a look at the thesis in Daniel Pink's book called A Whole New Mind: Why Right-Brainers will Rule the Future. Hoffman and many other touchy-feely, right-brained mediators lead the way to our field's future. They offer exactly what parties need and what we as professionals yearn to offer the world: good process design, a chance for parties to share their stories, a holistic approach to problem-solving (called symphony in the book), empathy, creative play, and meaning.
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 Mary ,   Denver CO    12/11/08 
 Workplace Mediations 
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Written like a true attorney! Let's not get into that touchy feely stuff. Let's just stick to the facts of mediation. Well, my experience has been that it takes both, the mediation skills and a lot of warmth and hope. We can rarely or never know whether someone did or didn't do something to the other party. Mediation is future focused and we are concerned with rebuilding some respect so that the parties can manage their differences and go back to work. I think there is some magic in a good mediation but it comes after a lot of hard work.
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 Eva Zimet,   Randolph VT    12/11/08 
 science 
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Thank you for sharing your discouragement with us. But all is not lost! My uncle was a scientist - a geneticist and the first to clone a vertebrate (George Streisinger on zebra fish). I took some valuable lessons about science and scientific method from him and his brother (my dad). They would tell us stories about failed experiments, snafu's, goofs, you name it. My favorite set of stories involved the scientist or team repeatedly throwing out the "failure" and trying again, only to discover that their mistake was in RECOGNIZING that the garbage was just what they were looking for all along. Compassion (peace, mindfulness, awareness, et alia) is the antiseptic. With compassion our hands are clean and we become clear and free of attachments - to anger, conflict. Compassion is something to be caught, rather than taught, says the Dalai Lama. A mediator who brings compassion (peace, mindfulness, awareness) into the room shares an indispensable component of the peace process. Compassion, like love, is not something to make -- it's all there already. Our task is to recognize it, and use it to do good.
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