The Frank Sander Lecture at the Alternative Dispute Resolution Section Meeting of the American Bar Association (San Francisco, April 8, 2010)
The labor mediators in the room can explain how and why the United States has a dispute resolution system, mandated by law, for resolving collective bargaining disputes. When the public interest is threatened by a strike, the parties can be urged to come to the mediation table. There are other professionals in the room who can explain how and why commercial disputes are mediated or arbitrated – usually because specific contract provisions mandate such action. Today, no one is surprised if a labor dispute or a commercial dispute goes to mediation. The parties and their lawyers know these systems work. And, no one doubts that appropriately trained neutrals will be available– regardless of how many strikes we might have or how many commercial disputes need attention. And, the enforceability of mediated agreements in such cases is well established.
There are other arenas, some less well understood by the public, in which mediation is an option. In small claims courts all across the country, private parties use mediation to resolve tenant-landlord, neighbor-to-neighbor and other two party civil disputes. At the federal and state levels, when new regulations have to be issued, federal and state agencies have the option of initiating negotiated rule-making under the relevant federal and state Administrative Procedure Acts. Professional neutrals, selected by the agency with the regulation-writing responsibility, bring the right parties to the table and assist in generating a draft of the required regulations. Again, appropriately trained neutrals are available to assist. The status of such negotiated agreements – whether in small claims court or in the federal regulatory arena – is circumscribed in law or in the relevant codes.
Why is it we expect these four kinds of dispute resolution processes to “work?” Why are we confident that adding a mediation step will produce beneficial results? Presumably, we wouldn’t advocate mediation if it didn’t generate agreements that satisfy the parties, cost less, take less time, and enhance working relationships . But, why exactly do we think mediation helps? It is not magic. There is a logic to our efforts. I think that logic goes like this: (1) for the most part, disputants know what they want (that is, they know their interests), they have analyzed what is most likely to happen if no agreement is reached; that is, they know their BATNAs, and they want to do better than that; (2) even if they sometimes exaggerate their claims during the give-and-take of negotiation (making demands far in excess of their BATNAs)-- or hiring agents to do that for them -- they are eager to see what can be worked out without extending a strike, proceeding with litigation, waiting for a judge to rule or engaging in a full-blown political battle; (3) after some huffing and puffing they usually discover whether there is a zone of possible agreement (somewhere between their BATNAS or what negotiation analysts call their Reservation Values) and if there is, they can usually craft an agreement and are wiling to be bound by it; (4) the mediator can be counted on to help the parties clarify their the interests, explore mutually beneficial trades, generate a written agreement, encourage the parties to be reasonable, and serve as a witness to what has been worked out. The LOGIC of mediation rests on three assumptions: (1) the parties know their interests; (2) when interests are in conflict, ingenious ways can be found to reframe, bundle, fractionate, or otherwise trade bits and pieces of what the parties want to produce workable agreements; and (3) the parties (and/or their lawyers) will be logical, if not reasonable; that is, they won’t turn down agreements that are better for them than no agreement.
The question I want to address today is whether the same logic of mediation applies when we are talking about disputes that involve deeply held values or beliefs (not just interests) and when identities (not just interests) are at stake. For the past several years, with colleagues at the Program on Negotiation at Harvard Law School, I have been trying to answer this question. I want to share with you my findings thus far. (You can read more by googling the Clearinghouse at the Program on Negotiation -- www.pon.harvard.edu/clearinghouse -- and downloading a paper entitled “Teaching About the Mediation of Values-based and Identity-based Disputes.”)
Let me start with three quick illustrations. These are stories based on real cases that have been prepared as role play simulations available through the PON Clearinghouse. They deal with disagreements over incorporating the issue of homosexuality into a public elementary school curriculum; a diversity campaign in a corporate workplace that pressed employees to be respectful of homosexual co-workers; and a dispute over a gay rights celebration in a public park and a city’s efforts to ensure freedom of expression to those who wanted to protest the celebration. These three conflicts provide a useful basis for distinguishing between the usual logic of mediation and a somewhat different logics that I think might be more relevant when values and identity rather than interests are at the heart of public and private disputes.
The three cases I’m about to tell you about where not actually mediated, although I think they could have been. The participants, and especially their lawyers and the judges in the courts in which these cases were filed, did not think mediation could help. If you play the “games” based on these cases, you’ll see otherwise.
The first dispute is between a public school system and two parents over classroom discussion and the distribution of materials depicting same-sex couples. It also explores the role of attorneys representing clients in negotiations involving deeply held values and beliefs. The family wants the school principal to notify them ahead of time whenever homosexuality, same-sex marriage or families headed by same sex couples might be discussed in class. They want their children to be excused from wuch discussions. The school principal has denied their request.
The family has filed a lawsuit against the school district in state court asserting their parent rights to have their children excused when parts of the curriculum conflict with their religious beliefs. The judge in the state trial court resolved the legal question in favor of the school district, holding that parents do NOT have a right to restrict what a public school may teach their children. The simulation begins at the point at which the family has filed an appeal of the lower court’s decision. Prior to oral argument, the appellate court has urged the parties to try mediation (in the game, that is, not in real life!)
The second dispute focuses on a disagreement between an employee and a large, privately-held software company called MacroB. In this situation, the employee was a senior project manager stationed at the company headquarters in California. A dispute arose when the company launched a diversity campaign featuring a series of posters, including one that read “I’m gay and I work at MacroB.” The posters were placed in highly visible locations in the workplace, including one on the exterior wall of the employee’s cubicle. This person is devoutly religious and from a faith tradition that believes that homosexuality is sinful. In response, the employee posted several Bible versus on the inside wall of their cubicle including quotations condemning homosexuality and predicting dire outcomes for anyone engaging in homosexual acts. When asked by management to remove the Bible versus, the employee refused. The issue moved up the ranks. The employee was given a week off with pay to reconsider. While they were away from the office, MacroB removed the Bible versus. Upon returning, the employee reposted all the Bible passages and refused to remove them. In the game, at the urging of a legal professional known to both sides, the company and the employee agreed to meet with a mediator (again, this is what happens in the simulation, not in real life).
In the third dispute, two private organizations and a city got into a dispute over the speech rights that would or wouldn’t be guaranteed in conjunction with a permit for a festival on city property. A local advocacy organization that supports the city’s sizeable lesbian, gay, bisexual and transgender (LGBT) community has organized a day-long, family-oriented event called the Outfest to celebrate National Coming Out Day and to affirm LGBT identity. In addition to drawing large, supportive crowds, the event attracts members of the public who opposed the message of the Festival and LGBT lifestyles in general. One group called Salvation Now! is a nationwide network of grassroots religious and social campaigners seeking to bring their religious message directly to those they consider to be living sinful lifestyles. Local Salvation Now! organizers were a regular and increasingly visible presence at the annual OutFest. In the past, they have arrived at the OutFest, megaphones at the ready, broadcasting messages that many at the Festival found offensive and hateful. The organizers of the event had readied a human buffer of numerous volunteers prepared to shield the crowd from the protesters. The volunteers carried massive signs to block the signs of the protesters. They blew whistles to drown out the megaphones. As tensions mounted, the police arrested several Salvation Now! members for refusing to follow police instructions and disturbing the peace. Although these criminal charges were eventually dropped, the confrontation damped the festival atmosphere and attracted unfavorable media attention to the city and the Outfest. The following year, fearing escalation as well as legal liability and court challenges, the city requested a meeting with all parties and their lawyers to talk about possible ground rules before they agree to grant a new permit. (At least, that’s what happens in the simulation. There was no effort made to mediate in the real life story.)
Why weren’t these cases actually sent to mediation? Probably because almost everyone involved presumed that no resolution was possible. The fights were about fundamental value questions and presumably neither side would be willing to soften its demands. Feelings of anger, aggression and hurt abounded. Each side assumed they were in the right and that the others had acted inappropriately. The parties in each case felt there was a great deal at stake. Indeed, in several of these disputes, national organizations quickly appeared to offer free legal services up to and including representation “all the way to the Supreme Court.” So, symbolic issues took on great importance.
To the courts involved, and presumably to the parties as well, there did not appear to be any way to resolve these disputes except to let the courts decide which principles would reign supreme: Do parents have the right to tell the public school what it can or can not teach their children? Yes or no? Does a private company have the right to impose a diversity code that forces its employees to refrain from expressing deeply held religious view that might be hurtful to others? Yes or no? Does a city have the authority to impose restrictions on free speech (especially what some consider to be hate speech) in public spaces? Yes or no? And, several of the partisans in these battles didn’t just want to settle these specific cases, they wanted to set highly visible national precedents.
Let me describe the four ways in which I believe mediation might have been useful in these cases and in other disputes like them. The logic to which I appeal in each case is what is most important. I think the logics are relevant regardless of the facts of each case. The question for you to consider is whether, as dispute resolution professionals, these alternative logics fit with your sense of your role and your responsibilities.
1. Consider interests and values separately: That is, try to separate a values-based or identity-based dispute into a more traditional interest-based segment and then help the parties deal with that portion of the dispute in the “normal” way. Maybe it will make it possible for them to take on the values-based portion at a later time.
2. Facilitate dialogue and offer opportunities for deeper mutual understanding and relationship building. Instead of aiming to resolve the dispute, help the parties understand and respect the views of their opponents and, most of all, help them avoid demonization. Again, maybe this will create a different climate in which something approaching more traditional settlement will be possible at a later time.
3. Appeal to overarching values: That is, reframe such disputed by appealing to values that the parties might share rather than focusing on the conflicts that precipitated the dispute. By referencing universal values – for example, equal rights, freedom or non-violence – a mediator may be able to help the parties find common ground. Recognizing common values can open lines of communication, build trust and otherwise improve relations. They may also be a springboard to inventing ways of living and working together more effectively. So, this is an approach to seeking settlement, but it attempts to work around the value differences.
4. Confront value difference directly: Help the parties confront their differences in a controlled fashion and help them explore and question each other’s values with the goal of possibly altering beliefs. Success in implementing this approach will result in at least one of the parties making a change in his or her values and or self-perceptions. There have been occasions, although they are limited in number, when groups with diametrically opposed values and identities have, through the therapeutic effects of truth-telling, cast aside generations of hatred or mistrust and moved into the long slow process of reconciliation. One need only look at all the many divided countries and cultures around the world (like South Africa and Northern Ireland) to see that transformation and reconciliation are possible.
Let me say a bit more about each of these approaches:
Let me use the school case to illustrate why it might be valuable to separate the portions of a dispute concerning interests and values. While the case was making its way through the courts, the children involved became victims. The children of the family that brought the lawsuit became the targets of bullying on the playground and the family was socially ostracized. Might it have been possible to address these aspects of the dispute while allowing the larger policy question to be addressed in some other way? Mediation, in this case, could have been used to resolve a portion of the dispute that dealt with both shared and conflicting interests.
Mediation can be used to try to alter relationships among disputants while not resolving their underlying value dispute. In the workplace case, it is hard to believe that the parties could not find a way of de-escalating the conflict and accommodating opposing views. One of my students suggested, since the underlying disagreement was about corporate pressure to ensure diversity, that the company add still another posters saying something like “I believe in traditional Christian values and I work at MacroB.” The issue of learning how to help employees with radically different social values live together was never addressed in the actual case. Mediation could have offered this possibility.
Reframing a dispute in terms of overarching values the parties might share is a form of resolution, although it requires a restatement of the problem the parties are being asked to solve. In our efforts to imagine what mediation of the Outfest case might have come up with, my students imagined a face-to-face meeting involving the festival organizers, the Salvation Now! leadership -- both their lawyers -- and the city government. My students played out what a mediated discussion aimed at generating jointly agreed upon guidelines that would please both the Outfest organizers and the protestors might look like. In several mock versions of the mediation, we were able to formulate a local ordinance that would increase the odds of accommodating both sides and meeting the city’s concerns.
Mediators aren’t therapists, but it does take a kind of therapeutic engagement to help parties confront others with diametrically opposed and deeply-held values and beliefs. On the other hand, it may be a mistake to assume that values are immutable. People may think they know what they believe in a general way, but there appears to be more room that we first imagined when it comes time figure out how their beliefs will be applied in a specific situation. It may be correct to assume that people engaged in value or identity-based disputes won’t agree to compromise, but other forms of accommodation and reconciliation are still possible. I think that the dispute resolution community has given far too little thought to the logic of reconciliation. When we think about the divided societies that have managed to build workable peace after decades or even generations of bloodshed, we have to be encouraged.
Finally, when I imagine applying the logic of reconciliation to the health care town halls held last summer or the current debates about climate change, immigration or abortion, I see new possibilities. Imagine something along the lines of the Negotiated Rulemaking process we now take for granted. A neutral selected by a joint committee of Congress (perhaps in conjunction with the Executive Branch) would engage in one or more of the mediated approaches I have described this morning. This would take place within a given time frame with the help of a team of mediators. It might be televised or streamed live on the web. This could happen at the national level or at state or local levels. The mediation would seek to achieve one or more of the four outcomes I have described: (1) separate interests and values and try to generate agreement on the interest-based portion of the dispute; (2) facilitate dialogue in the hope of achieving deeper mutual understanding and productive working relationships, (3) appeal to overarching values and find some accommodation; and 4) confront value differences directly and seek reconciliation. The results in each case might not look or feel like a more traditional settlement. However, in the way that the results of a negotiated rulemaking constitute a proposal that the agency with the relevant statutory authority can use as a basis for the rule it must formally issue, a little progress on values-based and identity-based disputes may be all we should hope to achieve.
Imagine that prior to Congressional deliberations on legislation, or prior to issuing executive orders, a mediated negotiation were to take place. A preliminary conflict assessment would be required to bring a manageable number of appropriate stakeholder group representatives to the table. The kind of deliberative poll that Jim Fishkin at Stanford advocates might be used to bind these ad hoc representatives to the views of their constituencies, at least at the outset. I firmly believe that these views are malleable, especially in response to an organized effort to promote reconciliation.
1. Mediation can, in fact, be helpful when parties are engaged in what are primarily values-based or identity-based disputes. I don’t think the usual problem-solving logic of mediation, however, necessarily applies. There are other logics that can, in fact, be helpful.
2. These alternative approaches to mediation need to be institutionalized so people don’t spend all their time worrying about how to proceed. We need legislation to spell out how this might work – a parallel to the National Labor Relations Act or the Negotiated Rulemaking Act. Formal experimentation ought to precede the development of such legislation – just as we did with Negotiated Rulemaking.
3. Mediators may have to learn some new ways of working, and we may have to develop a roster of mediators qualified to take on these types of disputes so the parties don’t waste their time trying to find appropriately-skilled help.
4. Judges will surely need to be educated about these alternative mediation logics. We’ve got to convince the courts that something short of comprehensive and traditional notions of settlement may be the most desirable outcome in certain kinds of value-based and identity-based disputes.
5. It is important that our profession establish a working group to dig into this question and decide what posture it wants to take on the question of mediating values-based and identity-based disputes.
6. Finally, it would help if the research community would document the logics of various dialogue groups that have been working on reconciliation for a long time, like Justice Circles that focus on restitution rather than retribution.
Many thanks for listening. And, my thanks to many of you in the audience whose work on peace-making, reconciliation, and dialogue has given us so much to build on.