The heart of the matter: the battle over rules.
Some people have never met a rule they didn’t like and see them as essential for the moral order of society, while the anarchists among us hate all rules equally and would never join any group for fear of compromising their principles. The tension over the place, purpose and nature of rules is especially poignant in light of the perception of fear, valid or not, of conflict and violence in present day life. The blow-up of the World Trade Center, the student shootings at Columbine High School, and other notorious instances of violence, have become poster events, symbolic of our age, lending credence to a culture of fear. Those occurrences are perceived as justification for the belief of a pernicious threat afoot to the fundamental order of our society. Paradoxically, while people are gripped by the fear of what could happen, statistically we have, in fact, probably never been safer. (Ropeik and Gray, 2002) The ripple effect of real or imagined threats, disputes and all forms of amorphous conflict are particularly acute in organizations and systems—schools, hospitals and health care systems, and the workplace. These are the places where tension between order and chaos is most evident and pronounced.
Organizations are often viewed as either overly permissive ‘free fire’ war zones where anything goes and there is little or no sense of order, or as stifling and dehumanizing prisons of the human spirit, so overly ‘ruled’ that nothing gets done. The perspective shifts depending on who you talk with— an administrator or management type, the funding source (health maintenance organization, government agency overseer, or insurance company), the service provider (doctor, teacher, counselor, worker), or the consumer (student, patient, beneficiary). For example, teachers chronically lament that the students run the asylum; students are convinced they are nothing but prisoners and the administrators are wardens more concerned with control than education, bunkered in their memo lined offices. In many workplaces, the sentiments of the cast of characters mirrors the schools with employees feeling watched, controlled and distrusted by managers. Likewise, in health care, doctors, nurses and other service providers, are at odds with administrators, who in turn are all at odds with distant third party payers, and patients and other consumer groups are distrustful of all of them.
After each group blames the other, the solution that appears most popular seems to be passing a new law, creating another regulation or setting a rule. Our culture has a ‘rule’ mentality. The first line of defense against the threat or fear of conflict and disagreement is to make a law and treat everyone the same, then no one can complain—but of course they do. At core, the issue common to all organizations and dispute contexts is the balance between the need for control and order on one hand, and the effective delivery of a quality product or service. While many are fearful of the lack of control, others sense that service and product quality has been compromised in deference to preoccupations with rules and order.
The Study of Rules: “Ruleology”
Rules permeate every aspect of our lives from birth to death, in both our private and public existence. From the laws, statutes, ordinances and regulations of the legal system, to the rules and policies of an organization or agency, all the way down to the unwritten traditions, rituals and protocols of ethnic, cultural and social groups and families, they vary only in the degree of formality and given importance.
For the purposes of this discussion, any and all dispute contexts can be conflated together because the feeling and sense of rules in general, transcends specific settings. So whether it is parents grappling with how permissive or strict to be with their children, a human resources manager or school administrator concerned with formulating rules, policies, procedures and codes of behavior, the negotiation of regulations in public policy, health care delivery or the allocation of natural resources, all begin at the same point: beliefs about rule setting, application and enforcement. Rules are the primary subject of discussion and source of friction in most disputes. Yet, ironically, while the need for rules is so seemingly obvious and pervasive, it is largely taken for granted, unexamined and unquestioned.
That makes the study of rules—‘ruleology’—all the more important, especially for those who are in the middle of conflict. It is an essential part of a conflict managers’—a mediator, facilitator, ombudsperson, or other third party— preparation for two reasons. First, sizing-up the conflict terrain and gauging the difficulty and complexity of the dispute requires observing and assessing a group’s or organization’s rule sensibility. There are a number of factors, including the following: 1.) the extent and specificity of the rules in the system—a continuum from many spelled out in detail to a few general ones; 2.) the importance they are given—ranging from being viewed as sacred and inviolable to mere guidelines; and, 3.) the level of adherence and conformity to the rules—extending from haphazard to always, without fail.
The second is less obvious and often overlooked: the third party conflict manager’s personal rule sensibility; his/her own feelings beliefs about conflict and the place or value of rules. Left unexamined, it can unwittingly become a source of bias, affecting the climate of the negotiations, and constraining the options considered. Does the third party approach their work as a de facto rule enforcer, or as a subversive agent, willing if necessary, to bend or break rules? A facilitator with too many rules and too much structure can stifle the negotiation process, while one without any rules risks losing any sense of order and focus and may contribute to the confusion. As well, how the third party uses rules sends an implicit, ‘meta-message’ about their own ease and tolerance for conflict and ambiguity that will likely be inferred or sensed by the parties. A common practice of many mediators and facilitators, for example, is to ‘spell out’ ground-rules for the participants at the beginning of the process. While for some people, this might provide a useful sense of safety in an otherwise tense situation, for others this practice technique risks setting a formalistic tone that discourages open discussion. The pro forma and automatic resort to rule setting in all matters, belies an unreflective practice style. Too often, rule-setting serves to alleviate the mediators personal discomfort with conflict, more than anything else. Many will not heed the rules, and those that do, probably did not need to hear them. In some situations rules might even get in the way—once set, they must be honored; this can result in sucking the third party into the enforcement job, being a quasi police or ‘third grade teacher’. Understanding ‘ruleology’— the place and uses of rules is not only warranted but critical for effective conflict management practice.
“Conflict is a form of pollution that contaminates an orderly society.”
Most people avoid conflict—-‘like the plague’. The simile is more than incidental; conflict is associated in peoples’ minds with disease and pollution. Our visceral, gut level, feeling response to conflict is at the very least, unease, and not infrequently, even disgust. The prevailing response expressed to the killing by students of students at Columbine High School was disgust. For many, conflict is imperfection; a form of pollution that contaminates what should otherwise be a just and peaceful world. Mary Douglas, a noted anthropologist, observed that, “(e)liminating dirt (or conflict) is not a negative movement, but a positive effort to organize the environment.” (Douglas, p.2, 966). The desire to suppress conflict and keep it out of sight, is borne of the same strong desire to deny or remove what are viewed as obnoxious ideas or putrid elements, like excrement or vomit. (Miller, 1997). In theological terms, what is culturally thought disgusting—or unclean—is translated into being immoral. Thus, conflict signifies immorality: it is the absence of beauty and justice as a direct result of humankind’s ‘fall from grace’. (Pagels, 1995)
Curiously, many professional conflict managers, mediators and facilitators, claim a dispassionate and intellectualized understanding of conflict. On the surface, conflict is described in detached terms, such as, “conflict offers both risk and opportunity”. Underneath, however, their actions, practice approaches and techniques belie far greater discomfort and antipathy to conflict than is admitted. Mediators regularly confuse themselves with peacemakers, emphasizing cooperation and disdaining what are considered harsh competitive strategies in negotiation. Few people like to be around the stress of disagreement and there is a concerted effort to avoid difficult situations, people or conversations. Ironically, the professionals who choose to involve themselves in conflict, often do not appear to like it any more than anyone else and quickly resort to rules.
Rules, laws and regulations serve as a primary method of containing the pollution and limiting the contamination of conflict in an orderly society. Fear, repulsion and moral loathing all coalesce to give rise to a strong desire for rules designed to suppress and control conflict. The more severe and absolute, the better; there is right and there is wrong, no gray. Rules are part of our evolutionary biology and psychology. Most living species have rudimentary protocols that order their existence, status systems, rules of accepted behavior and sanctions for transgressions. For humans, the first rules probably appeared about the time the third person showed up on the scene and the first two people decided they needed to make rules for him or her. Humans, like most other species, are ‘hard wired’ for rules to organize and protect themselves from predators and threats to the group—- both internal and external. (Masters and Gruter, 1992) Disorder and chaos are pernicious threats to society in general and a primary source of individual anxiety and conflict.
Ambivalence about conflict and the confusion of rules.
In public all of us “protesteth too much” about the evils of conflict, while privately we can barely contain our anger and rage at those with whom we disagree. We exhibit a profound ambivalence about conflict. On one level we find it disgusting and repulsive, or at the very least, a necessary evil; on another level, in the not so deep recesses of our psyche, we are also intrigued, titillated, attracted and enticed by conflict and the violence it sometimes produces. Some of the biggest traffic jams are the result of people wanting to sneak a peak at the blood, gore and mayhem.
There are numerous cultural signs of this confusion, that is most visibly apparent in the number of films and television programs that deal with conflict. While we each personally believe there should be rules for others and for our protection, we are nonetheless drawn to the hero—or anti-hero— that breaks the rules. In the movie ‘Patton’ (1970), the World War II General, played brilliantly by George C. Scott, doesn’t follow orders but gets the job done. Likewise, Clint Eastwood, (‘Dirty Harry’,1971), and Paul Newman, (‘Cool Hand Luke’, 1968), can trace much of their success to their film personae as rule breakers, and the role is no longer reserved for men only, as Julia Roberts demonstrated in ‘Erin Brockowitch’ (2000). Television also offers numerous examples of award winning programs where the hero—the rogue cop, doctor, or lawyer— operates outside the strict boundaries of the law in the name of justice and order. (NYPD Blue) The theme of breaking or bending rules in pursuit of justice taps a deep and rich vein of supportive public sentiment. Films and television reflect our operative mythology—stories we tell ourselves to make sense of the world around. We suborn conflict and rule-breaking.
This underlying turmoil and ambivalence about conflict serves as a back-drop for understanding the differing approaches to rules. Two are predominant, and at first blush appear to be directly at odds, but are ultimately symbiotic. The first, is the now popular policy of ‘zero tolerance’, the phrase used to describe a severe, no-nonsense approach to lax rule setting and slip-shod enforcement. In contrast, ‘don’t ask/don’t tell’ is effectively a pragmatic, unwritten, defacto-policy widely practiced. to alleviate the onerous effects of overly ambitious regulatory schemes, and over zealous enforcement.
The attraction of ‘zero tolerance’
In the Western cultural ethos, ‘zero’ is a symbol for a form of perfection. ‘Zero’ mistakes gives a perfect score or a perfect safety record; something obtainable with enough design and discipline. At root it is a mechanistic notion; just as machines and technology can evolve and be improved, so too can human beings. In the Human Resource Management field, ‘zero-defects’ has become a mantra. While intellectually questionable, the techno-rational culture purports to eliminate risk and perpetuates the belief that we are positively moving forward toward a ‘more perfect union’. The absence of conflict—however obtained— is a sign of that progress and ‘zero tolerance’ us dedicated to that end. If nothing else, it offers an excellent sound bite for political rhetoric. It is being used in schools, the workplace, the legal system (“three strikes-you’re out), and many other contexts. It carries an in-escapable moral tinge, insinuating that as a culture we have slipped into a morally relative morass that encourages the flaunting of values and makes vague the line between appropriate and inappropriate behavior. A policy of “zero tolerance” is intended to establish a bright, inviolable and absolute line of propriety. The belief is that if the expression of strong feelings and antagonisms between people can be stifled, suppressed and constrained, then the underlying conflict will be minimized, controlled or extinguished.
“Zero tolerance” reflects a purist dedication to our ‘techno-rational’ cultures’ near-sacred belief in the value of rules and the ‘Rule of Law’. In large measure the ‘Idea of Progress’ and optimism—hallmarks of Western cultures in general and the United States in particular— is based on our penchant for laws, rules, and regulations. In the HBO television series, The Soprano’s, there is a scene that poignantly expresses the American rule ethos. A Russian émigré, a woman who has befriended the head Mafioso, Tony Soprano, says: ”…you Americans are the only people in the world that expect everything to turn out right— and get aggravated when it doesn’t. Everywhere else, no one expects anything to turn out right, and it usually doesn’t”. The irony is that even our criminals expect things to turn out right— if you follow the rules.
Consider football, a quintessential American sport. It is largely rule-oriented with each play defined by lines, whistles, and flags. The N.F.L. (National Football League) publishes a rule book that runs more than 200 pages, that is edited and modified each year; every game is administered by a team of officials—7 on the field and 1 in the booth— which almost equals the size of the two teams playing. In more than a few games, it is not the athletic prowess of the players or brilliant strategy, but the rules, that determine the outcome. (Winklemann)
There is more than a small measure of utopian vision mixed in to the devoted and unwavering adherence to rules in general and the rule of law in particular. The working assumption is that if all people are given notice of clear and uniform rules, then there will be no questions, compliance will make sense, those who refuse to follow the rules will be easy to identify and sanction, and as a result, there will be less conflict and confusion. How much rules and order aid or hinder the exercise of individual freedom and liberty has been a constant discussion, reflected in the classic lines from Robert Frost’s poem, “Mending Wall”, “…good fences make good neighbors….”; “…something there is that doesn’t love a wall…”. (Frost, p.92-95) When all is said and done, however, the idea of justice is closely aligned in the American mind with the rule of law. .
The limits of rationality: too many well intended rules may confuse things.
There used to be a tongue-in-cheek cartoon regularly appearing in the newspaper, called “There Oughta Be A Law”; it conveyed the facetious suggestion that every human silliness can be redressed by a rule. True to form, however, some apparently missed the humor, and took it to heart and have created an industry around passing laws. Most people close to the legal system can directly observe the exponential increase in law: the statutes of most states, contained within one or a few modest volumes twenty years ago, now require five to ten times that number of books. Some legislators will candidly acknowledge that they concoct laws merely to appear useful and productive. They appear blissfully unmindful that for every law passed to solve a particular problem, they may unwittingly have created three more unforeseen problems—and diminished the capacity to reasonably enforce most of them .
This is an example of the law of unintended consequences—the revenge effect. The principle is observable in a number of contexts: building bigger highways in Los Angeles contributes to traffic going slower, or how the over-use of anti-biotics has given rise to more virulent strains of viruses resistant to treatment. And, more law and regulations is likely to make for less justice, not more. Human systems and organizations are complex, dynamic and non-linear; as such, they are seldom susceptible to correction by the application of a simple rule or law. (Tenner, 1996) The “fly in the ointment” of the seeming rational schema of ‘zero tolerance’ is that humans do not behave in a purely rational manner; cause and effect are elusive at best, even though frequently presumed.
The inundation of laws, regulations and rules pushes the limits of rationality. (Elster, 1989) This may well be one of the most compelling issues of the Twenty- Second Century—the extent to which the accumulation of presumptively rational rules, laws and regulations becomes irrational and effectively undermines and inhibits the exercise of individual initiative, discretion, and responsibility. Rules designed ostensibly to protect, end up working to immobilize effective response; conformity to one rule or regulation often compels the violation of another. (Howard, 1995) Not unlike a frog that will boil to death before jumping out of a pan of water where the heat is slowly turned up, we may see the demise of our culutre by being so rationally foolish as to believe our salvation lies in more rules and laws.
The necessity of “don’t ask, don’t tell”
Ironically, the advent of ‘zero tolerance’ policies and strict enforcement of rules spawns the countervailing human penchant for rule-breaking. It comes from the need to survive too much constraint. Our evolutionary biology and psychology provides for some tolerance of ambiguity in order to relieve the pressure of overzealous social controls.
‘Don’t ask/ don’t tell’, is a form of constructive deception. (Benjamin, 1995) It allows the people involved, both those who are disregarding or flaunting a rule or regulation and those who know they are doing so, to form a silent conspiracy whereby neither acknowledges the rule bending or breaking to each other, to outsiders, and sometimes even to themselves. Many behaviors and actions clearly deemed inappropriate by social convention or illegal by law are nonetheless tolerated. Notorious examples are the laws against homosexuals and other forms of consensual sex, that have been on the books for centuries and largely ignored, which is not to minimize those painful cases where people were vilified and sanctioned. A measure of practiced self-deception helps dilute the concentration of rules and protocols that can otherwise quickly become oppressive. These constructive deceptions—some more noble than others—allow us to survive in a difficult world. “Don’t ask, don’t tell,” can be glimpsed in many common expressions, such as, “live and let live”, “let sleeping dogs lie.” We simply agree to not see what is going on.” (Rue, 1994)
The paradox is that the more we pursue “zero tolerance”, the more compelling the need for safety valves or escape hatches to offset the extreme and strict application. People cannot live without some flexibility. Just as law must be followed so too, must compassion be available.. When we take ourselves too seriously and become overly ambitious in our belief that we can solve every problem rationally with another rule, then we are likely to be forced by reality to retreat.
Every organization has its’ own unique chemistry and way of doing things. Just like individuals, organizations develop familiar and comfortable habits and tend to resist change. At the same time, organizations must go through a process of adaptation to changes in the surrounding environment. All living organisms subtlety respond to external stimuli. An orchid, for example, will seductively take on the coloration and design most attractive and similar to it’s primary pollinator. Likewise, human beings, in their interactions, wittingly or unwittingly, allow themselves to quietly slip into strategies such as “Don’t ask/don’t tell,” which offer a less threatening way of doing things differently without saying so out loud—we just pretend everything is the same, even if it is not. It is often easier to beg forgiveness than to ask permission.
Ervin Goffman made a number of observations about organizational behavior some 40 years ago that remain relevant today. In examining the culture of people in closed institutional settings and asylums, he noted a penchant for the imposition of a ‘total institution’—a facsimile of ‘zero tolerance’— where, “(t)he handling of many human needs by the bureaucratic organization of whole blocks of people…” whether effective or not, is the same. (Goffman, p. 6) He also observed that such schemes, “…are invariably offset by the corruption of authority, an ‘underlife’ whereby official expectations are skirted.” (p. 304-308) In short, when there are obtrusive rules or surveillance, people will subvert systems and rules to meet their needs.
In the overall scheme of things, this bodes well for the future of negotiated conflict management processes like mediation, facilitation or whatever amalgam might be concocted in the future. The more laws, regulations and rules there are, the greater the need there will be for alternative social mechanisms that work in the shadows. This holds, if for no other reason than the fact that what comes with more rules is the practical reality of a lesser societal capacity to enforce the rules. (Adler, 1993; Benjamin, 1998) A recent New Yorker cartoon is worthy of note, the gist of it being two corporate mid-management types looking out on a floor of mostly empty desks with only a handful of employees remaining; one says to the other, “Maybe we need to lighten up on the ‘zero-tolerance” stuff”.
The Paradox: More Rules Leads to More Conflict—Not Less.
With a geometric increase of rules, laws and policies in our culture, “don’t ask/don’t tell” is being practiced more than ever, but is still insufficient to mitigate the ultimate paradox: there is an direct inverse correlation between the number of rules, laws and regulations and the amount of resulting conflict. More rule appears to generate and exacerbate—not manage conflict. We end up less safe with more rules. The sheer size and number of volumes of law and regulations in most states and the Federal government is daunting, with many of the specific provisions contradictory of each other. Similarly, the size of an organization’s employee handbook’ is often a good predictor of the amount of conflict in the workplace: the larger the book, the greater the likelihood of conflict. With specific policies elaborated in detail, there is more to question and quibble about.
Ironically, going against the cultural grain of a society dedicated to the rule of law, many people chafe under the yoke of too many rules, especially when they are formalistically and rigidly applied. There is, no doubt, an attractive symmetry and practical efficiency to treating everyone the same, uniformly and equally, but that does not necessarily accomplish a perceived sense of fairness or justice. Little room is allowed for individual needs, variables and unforeseen circumstances. With the exercise of individual discretion curtailed and “hands tied”, disallowing any deviation from the set protocol, traps both the rule enforcer and identified transgressor. As a result, many anomalous and poignantly difficult situations arise: doctors are forced to passively support euthanasia out of compassion despite laws to the contrary; supervisors discretely disregard the employee manual when necessary; police officers and prosecutors exercise discretion in law enforcement.
Most of us have been compelled to find ways around the formal or written rules to make things work and get the job done, although surprisingly few will admit to it publicly. The very notion of ‘thinking outside the box’ is closely linked to the ability to concoct stratagems, rationalizations to get around pesky rules and requirements. These machinations are known more politely as the ‘alternative framing’ of the problem. Creative management necessarily requires the constructive use of deception.
The mediator/facilitator as rule-breaker and mediation as a subversive activity.
As our society becomes more complex and rule-laden, clear right answers are more elusive. There is often a wide gap between the ideal, rational, and “right way” to do things, and the pragmatic, sometimes dirty, arrangements that must be negotiated to survive. As often as not, in difficult issues, the parties back into an agreement, as much out of exhaustion as anything else, and choose an outcome that holds the least of the possible evils. In these situations, as much as anything, the mediator or third party, plays the role of a patch-up artist, cobbling together an agreement that is proverbially held together with ‘duct tape’ and chewing gum. The times when the third party can ride in on a white horse as the heroic problem-solver are few and far between. The third party spends a fair amount of time on the edge—not directly suggesting the intentional disregard of a rule or law, but not being too fussy about strict adherence either. (Benjamin, 1998.)
“Don’t ask-don’t tell” is one of a pragmatic negotiator’s most important unstated strategies and possible options in managing—not resolving—conflict. Not surprisingly, it is seldom talked about often or openly. Even though it has a long- standing tradition of being regularly practiced in the real world, most people are disdainful and dismissive of the approach. It carries the taint of being ‘back-room’ stuff, sleazy and deceptive. Some consider it an outright sellout. In one of the few public exposures of the strategy, President Clinton used the strategy to negotiate a deal with the military leadership over the inclusion of gays and lesbians in the armed services. The negotiation was handled clumsily, not so much because of how he proceeded, but because of his timing and the public display. To this day, he has never escaped ridicule—from all sides—but the agreement has held.
“Zero tolerance” is not bad per se. The firm adherence to principle is a noble tradition that has aided the pursuit of justice and principled practice. And, “don’t ask, don’t tell”, likewise offers a necessary dose of pragmatic flexibility. The two approaches to rule management form a dynamic tension playing off each other. Neither alone is functional, and over-reliance on either is risky. At the extremes, while ‘zero-tolerance’ offers a good rhetorical sound bite, it can be rigid and ineffectual as a primary means of managing conflict in organizations, schools, or for that matter, any inter-relational context. The assumption that clear rules create a more rational, ordered and safe work or school environment is seriously flawed. Too many rules, too stringently enforced, may well operate to stifle work output and depress employee morale, and intensify and exacerbate the very conflicts the rules were intended to quell in the first place. At the extreme, although the informality of “don’t ask/don’t tell” can be useful and necessary, it is also risky and potentially destructive. If too much of an organization’s protocols and procedures are left unwritten and informal, then there will be little sense of coherence and an increased chance of unwitting transgressions. It is like working in a building with glass walls—you don’t quite see them and know where they are until you run into one. There is little predictability and a persistent insecurity that one might suddenly be called to account for doing something that has previously been done with impunity. That circumstance can be as stress producing as the strict enforcement of a zero tolerance policy.
The heart of mediation and facilitation practice is about where to draw lines, and when to ‘hold’ or ‘fold’ in the stringency of rule formulation and application. Managing that tension takes place in the terrain between principled adherence to ‘zero tolerance’ and the necessary pragmatism of ‘don’t ask, don’t tell’. It is not an easy place to be. At one extreme, is the murkiness of no rules where little is clear, and at the other extreme, the risk of unwarranted optimism that rules will make all things clear. Not surprisingly, there are no clear rules, only choices.
Adler, Peter, “The Future of Alternative Dispute Resolution: Reflections on ADR as a Social Movement,” in Possibilities of Popular Justice, edited by Sally Merry and Neal Milner, University of Michigan Press, 1993.
Benjamin, Robert D., “The Constructive Uses of Deception”, Mediation Quarterly, Vol 13, No. 1, Jossey-Bass, Publishers, 1995.
Benjamin, Robert D., “Mediation as a Subversive Activity”, www.Mediate.Com, October, 1998.
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