Building upon the foundation established over recent decades, The Mediation Futures Project will gather and report upon our best thinking about the future of the mediation field and mediation practice.

Re-conceptualizing the Work as Something Bigger than Ourselves--Reconciliation

January 2015

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Doug Yarn

In 1983, I attended the first National Conference on Peacemaking and Conflict Resolution with my boss and mentor, former secretary of state Dean Rusk. We would huddle after each session to discuss what we learned and thought relevant or useful. Mediation was an old and familiar concept in foreign relations, but I was particularly intrigued by some of the new directions people were taking it in the domestic context. Rusk was considerably less sanguine. As a former idealist turned realist, he appreciated the idealism but discounted it, if not viewing it with suspicion. His concluding comment to me on the future of the “new” mediation was “Some of this may catch on in limited contexts, but it will have little lasting impact, particularly in the way large political and social problems are resolved.” Being still an idealist, I respectfully disagreed, abandoned a future in the Foreign Service, and set out to prove him wrong.

Fast-forward 30+ years and I’m watching “Bob’s Burgers,” an animated TV show that I highly recommend. The episode was about conflict (as all good stories are) arising from a meeting of Tina’s (Bob’s daughter) middle school conflict resolution club. After a 30-year career in ADR, I found myself conflicted. A school conflict resolution club--an institution that was in its infancy in the early 80s is now the linchpin of social satire. Take that, Mr. Rusk. You were wrong. Court-connected mediation is the most significant civil justice reform in the last 30 years, thousands of people identify themselves as mediators and part of a field, I’ve made a decent living mediating and teaching mediation, and mediation is the butt of jokes on TV. Ah ha!

As I said, I’m conflicted. Mr. Rusk may have also been right. When the Hewlett Foundation---a primary benefactor of mediation programming and organizations for a better part of the last quarter of the previous Century --- withdrew it’s funding in the early aughts of the current one, a fundamental weakness was revealed. With the exception of a once overburdened court system, society really didn’t crave what we were selling. NCPCR is no more, and ACR is holding on by a thread. As predicted, the values of the once new mediation movement have been sacrificed by its absorption into the legal system. The “field,” such as it is, is arguably irrelevant beyond a few specialized institutions that have developed graduate studies programs, and the fair number of elementary and secondary schools that have started conflict resolution clubs that work well in wealthy districts, but are hard to sustain in impoverished inter-city districts where the kids come to school hungry and basic needs remain unmet.  In the scheme of things, these are rarefied ventures; mediation remains a cottage industry in which only a comparative few practitioners make an acceptable living. Society has not been transformed, and political leaders do not turn to Mary Mediator for help solving the domestic and international problems of the day. More crucial perhaps is the fact that normal everyday folk don’t turn to Mary Mediator for help either—at least without prodding by a court. Did we merely ride the coattails of a successful cultural meme that has run its course?

Perhaps. Or maybe without realizing it, I have reached old fogy status and my perception is skewed. But after toiling in this field for 30 years, I have the strong sense that the patina has worn off and the institutions we have created are fraying and unsustainable in their current manifestations. I’m in good company in this perception; however, that doesn’t mean there is no future for mediation. I just have no clue as to what it looks like. There are trends elsewhere. In some parts of the world, the concept is still fresh and new. For example, I was training mediators in Turkey this summer where a new statute provides for mediation in both civil and criminal justice. International commerce is now looking toward mediation as an alternative to an increasingly costly arbitration system, and UNCITRAL is considering treaty language. I recently met with a large number of enthusiastic higher education ombudsmen in Europe, most of whom have barely scratched the surface when it comes to using mediation in their organizations. But here in the U.S., it’s hard to see similar growth and expansion except in a very few similarly untapped places or online, as Colin Rule points out. It could be simply a dearth of imagination on my part or my conversion from an idealist to a realist.

The only certain thing I can envision about the future of mediation practice in the next 20 years is that I won’t be in it. Wiser and more energetic heads will plot the course, but I have a suggestion for them—articulate a new and more vibrant cultural meme. “Mediation” has run its course. It’s old news. We’ve boxed in the concept. Can we explore new, exciting socially relevant themes for the work we do. All of us have personal reasons for interposing ourselves into other people’s problems, but is there something that transcends the personal, that is a “stickier” idea, that inspires a new generation of practitioners? I don’t claim to have it, but I can tell you what motivates me these days—reconciliation. Yes, at one level, I mean actually reconciling people in conflict, but at another level, “reconciliation” is the creation of a new organism, a new life form, so to speak.

Life on this planet is over 3.5 billion years old. It began only once with the first replicating molecule, a primitive form of RNA. We are all descendants of this molecule, known as LUCA (last universal common ancestor). It is present in every living thing on this planet. When LUCA created copies of itself, it created competition over the building blocks of replication. This is the primordial conflict that lies at the heart of all conflict today, and it could have ended in a tragedy of the primordial commons but for variation and error in reproduction, which lead to the adaptive behavior of cooperation. Cooperating replicators, the earliest form of which is known as the hyper-cycle, competed more effectively together than alone. This tension and competition for resources leading to a new more evolutionarily fit cooperative organism lies behind all complexity in nature. These are the forces that underlie the major transitions in evolution, which transformed replicating molecules into chromosomes, into simple cells such as bacteria, into more complex single-celled animals such as ameba, into multicellular animals, and eventually into societies, groups of cooperating multicellular animals.

Social cooperation in primate societies allows for cooperative endeavors such as hunting, food sharing, protection from predation, economic exchange, and the creation of more complex societies. Although living and cooperating together has its benefits, principally a general increase in evolutionary fitness, it also puts its members in more direct competition with each other—intra-group conflict. What happens when someone cheats or defects? When an individual refuses to share the spoils of a group hunt, or fails to hold up their end of an economic exchange? Each transition in evolution is dependent on the cooperating units holding up their end of the bargain. Potlucks stop working when more people come to eat than bring food. So the stability of more complex entities in nature required the emergence of behaviors that discouraged cheating among lower level cooperators and reestablished cooperation after a breach. Game theory shows us that the conflict management mechanism that emerged was reciprocal behavior, essentially tit-for-tat.

We can find conflict management systems based on reciprocal behavior at each evolutionary transition.  Examples abound throughout nature; even slime mold engage in tit-for-tat in order to control non-cooperators when coalescing to survive harsh conditions This behavior is in-the-genes, so to speak, no brain or nervous system involved, but in social primates, it’s in the brain. Our brain is a tit-for-tat machine, evolved to provide the social cooperation mechanism through reciprocal behaviors in a reconciliation cycle that starts out trusting, assesses the behavior of others through a sense of fairness (justice judgments), in which cheating triggers retributive emotions and behaviors, while eventually continuity in the cooperative relationship requires forgiveness, and reconciliation leading to renewed cooperation. Shame and apologetic behaviors are co-evolved behaviors to hasten reconciliation. The brain paparazzi (fMRIs) and neurochemistry confirm this. Moreover, dyadic conflict doesn’t happen in a vacuum. Other group members are potentially affected by intra-group conflict, and emotional contagion spurs intervention. In primate societies, third parties will intervene in various ways to stop a fight and encourage reconciliation and the resumption of cooperative behavior.

As human societies evolved from simple small hunter-gatherer bands to increasingly complex and larger forms of organization, we are left with Paleolithic brains and behavior in an infinitely more complex social environment. This time-shifted reality, this disconnect explains many of the biases, cognitive errors, and heuristics that make our behavior, which may have been rational in the environment of evolutionary adaptation, decidedly less than rational in the modern world. The necessary physical evolution to cope with this development in social architecture just can’t happen that fast, and gave rise to the need for adaptive institutional interventions in order to support cooperation. As more complex human social architectures emerge, the fitness of these societies increasingly depends on extensions of the biological through cultural evolution, i.e., the creations of adaptive social institutions that can effectively intervene and manage conflict and support cooperation among the lower level social units and ultimately human beings that compose a more complex social unit. Instead of genes, we’re adapting through cultural memes. Language, gossip, reputation, expression of norms, morality, ethics, religion, law, and conflict management modes, like those provided by mediators, all serve this purpose.

Our species is a mere 100,000 year blip in the grand cavalcade of life, but our success and future survival rely on our ability to maintain cooperative behavior in the face of competitive pressures. The inevitable conflicts and competition that sever cooperative relations among individuals and groups must be followed by reconciliation—the formation of new more complex cooperative social relationships that are capable of addressing the challenging problems we share on this planet. Reconciliation is at the heart of evolution at any scale. Each new or reformed social relationship is essentially a new organism. For me, this concept of reconciliation has fundamental social relevancy. Self-determination is a wonderful objective for mediators, as might be problem solving (and problem-finding), but I don’t think we have thought enough about seeking reconciliation as a primary goal. Most mediation today is about assisting in the breakup of relationships rather than in the reformation of them. Think of how comparatively little mediation is occurring in the service of restorative justice, for example, or in saving an employment relationship or maintaining a marriage or a partnership. We should focus more on the creation of life, on evolution rather than devolution.

Because we are social animals, we will always have conflict and the need for assistance in resolving it. Today’s mediators, among legions of others, serve that purpose and can continue to do so if they adapt to the changing conflict resolution needs of the societies they serve. Regardless, “mediation” as a profession and a “field” doesn’t have a future unless it finds a unifying raison d’etre and revives or creates a more vibrant cultural meme. To me, there is something really awesome about being cogs in a marvelously evolved 4 billion year old machine, being mere vehicles for a replicating molecule. We can have an existential crisis about that, or we can embrace the fact that we as mediators are conscious of our role in evolution--the emergence of adaptive cultural mechanisms designed to sustain the cooperation necessary in an ever-changing and increasingly complex interconnected world. In this sense, I suggest that the future of mediation lies in aspiring to possible relevance as facilitators of reconciliation at whatever scale we are working.



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Doug Yarn teaches in the areas of conflict resolution and professional responsibility and serves as Executive Director of the Consortium on Negotiation and Conflict Resolution, a leading inter-university, multi-disciplinary theory-building center. He has taught at the law schools of Emory University and University of Georgia and in the civil engineering department at the Georgia Institute of Technology. Before joining the GSU faculty, Professor Yarn practiced as a litigator, in-house counsel for an investment banking firm, and in-house attorney, mediator, and panelist trainer for the AAA. He has trained mediators and arbitrators nationwide, drafted arbitration legislation, and designed conflict management systems for private and public entities.

Professor Yarn has served as a facilitator and mediator in hundreds of civil legal disputes and numerous public policy disputes involving issues such as access to health care, land use, and the environment. His publications include, practice treatises on alternative dispute resolution, the authoritative dictionary for conflict resolution, and numerous book chapters and articles. His research interests include international environmental conflict resolution, ADR ethics, conflict management in institutions of higher education, history of English arbitration, dueling codes, apology and forgiveness, biological foundations of conflict resolution, and conciliatory behavior in non-human primates. In his spare time, he plays Uilleann pipes in a traditional Irish ceili band.

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