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<xTITLE>Thoughts on Addressing Racial Injustice</xTITLE>

Thoughts on Addressing Racial Injustice

by Richard Barbieri, Bernard Mayer, Richard Susskind
August 2020

This work juxtaposes an announcement by AAA-ICDR with articles that promote dialogue in difficult conversations.



What's the Right Thing to do When You are Really Angry About What's Happening in America? by Larry Susskind

Students are marching in the streets to protest the recent killings of Black Americans. They want those in positions of power to acknowledge that these deaths are, at least in part, the result of unchecked racism that is still very much alive in our country. Whatever progress has been made over the past fifty years to address inequality, unfairness, racial bias, ignorance, lack of empathy and unequal opportunities, there is still a long way to go before everyday life in America aligns with the ideals we espouse as a nation. The protesters want the institutions that they are part of to do a better job of addressing rampant unfairness and privilege in their normal course of business. (There isn't a single class being offered in any college or university, for example, that couldn't make a useful connection between what is being taught and the changes required to make the world a fairer place.) They want our political leaders to re-affirm that fairness and equality of opportunity are, in fact, important goals. They want to see explicit action and resource commitments that make it possible to achieve the democratic ideals we allude to all the time.

And, if the leaders in all the institutions and communities in the country no longer think that greater equality of opportunity and fairness in the allocation of collective resources are appropriate goals, then the protesters want them to admit that. Recent reports indicate that the majority of our citizens no longer think the American dream is something that they or their children can reasonable hope to achieve. That is, with the jobs they are likely to get, they won't be able to afford the housing and services they require. With the public education available to them (at increasing costs), they won't be able to get better jobs. And, with the cutbacks in government and government services, they won't be able to count on the healthy environment that is a prerequisite to living a full life and providing something better for their children. If that's what the majority face, the protesters want those in positions of leadership to own up to that. Because once they do, it might be possible to rouse the vast majority of people from their political lethargy.

Even with increasing control of our political process shifting to lobbyists and wealthy donors, the power of social media can not be suppressed. If the vast majority of people reach the conclusion that the inequalities and unfairness in our society are no longer tolerable, and they had an easy way to express their unhappiness, the noise would be deafening. If that noise were accompanied by an on-line mobilization effort around a very simple agenda, it would be possible to reframe the political discourse in the country and draw in the half of all eligible voters who don't bother to vote. It now takes only 20% of eligible voters to win a Congressional seat. It doesn't take much more than that to win the Presidency. If everyone eligible could vote on line, and their votes were clearly connected to an explicit action agenda (rather than a watered-down party platform), it would be relatively easy to engage the half of America that is too disheartened or angry to vote.

What might this new political agenda include? Not easy bromides or slogans about divisive social issues that have no consequence for how trillions of public dollars are spent. Rather, the agenda should include free public education through college for anyone whose family makes less than $100,000 a year. Free job training for anyone who chooses not to attend college. Free health care for anyone who needs it, but can't afford it. Free food for any family that can't afford it. Housing subsidies for anyone who can not afford market-reate housing. A retirement wage sufficient to live a meaningful life. The programs needed to accomplish all of these goals are already in place (although there are elected politicians trying to dismantle them). They are just not funded adequately. We have the financial resources in our overall economic system to cover these costs while still allowing continued economic growth. At the heart of everything is what we have forgotten about the role of government. It is only through our collective efforts that our individual well-being can be guaranteed, and government is the only mechanism by which we can act collectively. There is no way that each household can ensure clean water, clean air, adequate transportation, food that's safe to eat, punishment of consumer fraud, access to information, a legal system that holds private parties to their contractual obligations, protection from terrorism, investment in basic science, and so on. Yet, as a country, we have been brainwashed. We think that shrinking the government is going to help us. Nothing we do privately will amount to anything without an adequate government system to protect us. Each of us is both a private actor and a citizen. People have been focused too much on the things they can do for themselves as private individuals, and not enough on the things we must all do together for our private interests to amount to anything.

Take the total cost of all the guarantees I have listed. Subtract the revenue raised by a reasonable tax on corporate wealth and profits. Divide the remainder by the number of households in America. Compare the remaining cost per household to the income and wealth that each household has. Calculate what a progressive system of taxation would need to raise to cover these basic guarantees. Design a system of taxation that rewards entrepreneurial effort, but only after our minimum collective costs are covered.

What we need are some very bright people to prepare a national budget starting with a clean sheet of paper. I think most people would be shocked to see how easily all the basic guarantees I have listed can be met. If people ran for office on a very specific agenda of expenditure and revenue priorities, we could hold our elected officials accountable (at every level of government) to fulfill these commitments (and nothing more). This would restore everyone's sense of political efficacy. My colleague Sol Erdman and I have spelled out how this would work (what we called Interactive Representation or IR) in a book entitled THE CURE FOR OUR BROKEN POLITICAL PROCESS: How We Can Get Our Politicians to Resolve the Issues Tearing Our Country Apart (Potomac Books, $10 Kindle or Hardback). But, even if you don't look at the book, think about what it will take to ensure greater equality of opportunity and fairness of results in America. Think about the things we have to do collectively because individuals working on their own can't accomplish them. Think about using social media to mobilize people around a very simple agenda. Think about the things you can propose that would benefit the vast majority of Americans and ensure greater fairness in our society. Try to get the place where you work or study to put aside a little time to talk about the systematic racism and unfairness that people in our country face every day.


Staying with Conflict - Election Edition: A Conflict Practitioner’s Lens on the US Election by Bernie Mayer

Introduction:  In this seemingly endless election season, just about everyone who believes they have any angle at all on making sense of what is going on has weighed in with their analysis.

So why not conflict professionals? 

Elections are in essence a way of engaging in social conflict.  Sometimes constructively, sometimes not so much. 

The very structure of elections leads to escalation of existing or latent conflicts—with the idea that issues will then be laid out, differences underscored, and voters offered a clear choice. 

Electioneering is almost never about what candidates agree about - unless it is that all of us in one party are infinitely better then all of them in the other - but what they disagree about and how they are different. 

So we propose that those of us who study conflict join the crowded field of opiners about this election.  We invite anyone who wishes to do so to submit a short (< 1200 words) commentary on the election from a conflict practitioner’s perspective.  The goal is to take a creative look at what is transpiring using the conceptual and practical tools we bring to our work— not to promote any particular candidacy.  And we encourage responses to what others have posted - the more action, the more interesting.  We encourage you to link to this discussion wherever you feel it would be appropriate to do so.

For our opening post we offer:  


I.  Are We Ever Neutral?  Should We Be?        by  Bernie Mayer

The heart of our ethical commitment is to be who we say we are, and to act as we say we will act.  So when we say that we will act as neutral third parties in a conflict we must do two things—explain what that means (good luck with that) and act accordingly.  I have argued before that neutrality need not be our defining purpose or identity.  Neutrality is at best a tool or strategy, and at worst a blind alley that can lead us to act against our own values.   And our values are the key to our effectiveness.

Who we are and what we do

Our purpose ought to be to assist people to deal with conflict effectively, constructively, wisely, and peacefully.  We do that in many ways and from many vantage points.  Sometimes we act as third parties assisting people in conflict to have a constructive discussion, one that frequently results in agreements about issues important to them.  However, there is no ethical or strategic imperative requiring that conflict interveners only act as neutral third parties. 

Often, we can be most effective by working with individual parties as allies, strategists, coaches, or advocates.  At other times, our focus is on designing or managing systems of interaction.  We can be effective in all these roles, but we must be clear about which role we are playing at any given time.  

Neutrality, Fairness, Authenticity, Transparency

When we act as third parties, ought we not ensure that we maintain a neutral stance as interveners and throughout our lives? But we always carry our history and values with us. I have been a lifelong supporter of unions, a former union activist, and a proponent of empowering unions to be more effective advocates for workers.  Surely, that ought to disqualify me as a labor-management mediator? But it doesn’t.  In fact most of the mediators who work on labor management disputes for federal or state agencies come from union or management backgrounds. This experience is often essential for understanding how collective bargaining or grievance procedures work, and it actually enhances their credibility as third parties.  

In mediating labor disputes, it wasn’t my personal beliefs or history that was most important but my commitment and effectiveness in helping people handle their interaction constructively and fairly. This was also my experience as an environmental mediator, an area in which I also have an activist background.  Of course, no one has wanted me to advertise my own beliefs in the middle of mediation or to comment publicly about their particular dispute, but neither my background nor convictions have prevented me from creating a safe space within which parties can negotiate. 

Calling out unacceptable behavior

We are, sadly, experiencing the rise of open and unconstrained racism, misogyny, anti-Semitism, and homophobic behavior in our public lives, abetted and even provoked by our President and his associates.   Are we obligated to remain silent about this in order to maintain our status as credible neutrals?  On the contrary, I think one of the great contributions we can make as conflict interveners is to call out unacceptable behavior, which is making it increasingly difficult for us to talk across our differences or to deal with the most important challenges we face as a society.  We need to find constructive and effective ways to confront unacceptable behavior both in our capacity as conflict professionals and as citizens of our world.  But we must do this in a way that recognizes that people can change, that interactions make a difference, that people who behave in an abusive manner still have genuine concerns that ought to be addressed, and that we ourselves are fallible.

To me, this is a core ethical responsibility.  We ought not remain silent when we see people abused or bullied or when we hear hateful speech or actions.  Our silence does not make us more credible third parties—in the long run it makes us less trustworthy.  

Aspirational neutrality

So what is our commitment to neutrality really about?  When I say that I am acting as a neutral third party, I mean that my goal is to help disputants have the conversation they need to have, and that I will not intentionally advocate for one person’s legitimate interests at the expense of another.  I will be transparent about any connection I have with the parties and any way I may stand to benefit from a particular outcome.  

Often the answer is that there is no outside connection or benefit. But we can rarely offer “pure” neutrality in this interconnected world.  What we can be clear about are our intentions.  And the power of these intentions derives from our beliefs.  If we believe that conversations across our differences are important, and that there is great value in skilled third parties helping others to have difficult conversations; if we believe that people need help with having these conversations and not just with achieving desired outcomes, and if we believe that parties are better judges of what they need than we are, then we are offering  aspirational neutrality—the only kind of neutrality that we can actually promise.



II. Advocacy, Neutrality, and the Role of ADR in “The Age of Trump, by Lawrence Susskind

In what ways does the Age of Trump present special challenges for consensus builders and other ADR professionals?   

What’s special about the Age of Trump is that our political leaders (not just the President) no longer feel an obligation to represent all the people in the district, state or country that elected them. Now, they only feel accountable to their “base.” This is a relatively new occurrence (not just in the United States, but in other democracies as well). It used to be that after politicians were elected they felt some obligation to represent the interests of all the people in their district, state or nation. As a result, we now have districts or states (or countries!) where 49.9% of the electorate has no representation. The unrepresented people feel angry, anxious and defense. 

So, right now, many ADR professionals are feeling a huge strain. The neutrality that is central to our professional role cuts against the anger, defensiveness and outrage (and the desire to take sides and take action) that many of us feel in our personal role as citizens who are not aligned with what the formal leadership stands for.  We need to remember, though, that ADR professionals operate in ways and with the intention of evening-out how political power is exercised and how our democracy operates, so that those who are in various ways disadvantaged by the existing systems of decision-making and governance, whether in the legislatures, the courts, in their communities, or in negotiating with large corporations or other powerful interests, can count on ADR professionals to help them feel treated in ways that enhance the fairness, efficiency, stability and wisdom of decisions that affect them. 

Neutrality is central to the value we add as ADR professionals. Our neutrality allows us to earn the trust of all sides in any dispute. It also means we can operate in the interstices between the parties and, in so doing, carry messages and provide cover for parties to come together without appearing to be weak. My contention is that many ADR professionals are so upset by what is happening in the Age of Trump that they are ready to risk their neutrality. While I understand their motives, I am convinced this would be a disaster for the profession.

If we take our professional responsibilities seriously, and maintain our neutrality, while everyone else is escalating efforts on their own behalf, and feeling entitled to act in their lives as if the interests and needs of the “other side” don’t matter, there ought to be increasing demand for our services.  We should be able to find more work and help in important ways.

This responsibility, I believe, extends beyond the traditional notion that we are impartial, or non-partisan, however one chooses to frame our stance in conflict processes where we have been hired.  Each one of us has an opportunity to take direct political action in our personal lives. Remember, though, that the way we act in our personal lives may well affect how we are perceived in our professional roles and, thus, our ability to function effectively as professional neutrals.  We need to think very carefully about how we present ourselves in public – in an effort to pursue our personal political goals. The wrong perceptions in the public eye can vitiate our most valuable contribution as ADR professionals.

It may in fact be easier to facilitate useful and productive conflict in more contentious times. And, the Age of Trump has certainly generated more contentious times. We ought to be able to help reconcile conflicts or find problem-solving strategies in ways that no one else can.  To succeed, though, we must:

  • Remind potential clients that our goal is not to stamp out conflict! Conflict is productive if it is well-managed;

  • Make sure that people understand our job is not to get anyone to change their beliefs or change their minds; and

  • Create enough value through ingenious trades that all sides are better off than they would have been if they hadn’t come to the negotiating table.

I know this puts me at odds with some who see the job of ADR professionals as primarily facilitating better dialogue or better communication – leading to better understanding.   But, in my mind, dialogue for its own sake is not our primary concern.  We need to focus on more strategic goals – helping people in conflict find a way forward that better meets their interests than no agreement. Whether they understand each other, or like each other more as a result of the interactions we facilitate, is much less important than the working agreements they reach.

Finally, I must reiterate that we need to be absolutely diligent about maintaining our neutrality – no matter how strongly we feel personally – if we want to make a case for the value we add. I’m convinced that the way we act in our personal lives may shape how we are perceived in our professional roles. If you sign a petition, march peacefully, write op-eds, or lobby for your point of view, there is no way anyone who disagrees with the positions you have taken will accept you as a dispute resolution professional they can trust. I promise you that whatever actions we take in our personal lives will be noted. Being perceived as neutrals in the Age of Trump is, in my view, the key to contributing in important ways to the resolution of conflict in these contentious times.  



AAA-ICDR Foundation Announces Competitive Grant Process to Fund Innovative Projects to Reduce the Impact of the COVID-19 Crisis on the U.S. Justice System and Promote Dialogue Addressing Racial Injustice, announcement by Richard Barbieri 

NEW YORK, N.Y.—June 22, 2020—The COVID-19 pandemic has affected every aspect of daily life in the U.S. and the world, including the justice system. Traditional methods for resolving disputes have been severely curtailed or delayed, hurting middle-, low-income, and vulnerable Americans especially hard. At the same time, protests against systemic racism in the U.S. have reached a level not seen since the civil rights movement of the 1960s.

In response, the American Arbitration Association-International Centre for Dispute Resolution Foundation® (AAA-ICDR Foundation) has established a new grant opportunity that will award one or two grants, up to a total of $250,000 each, to support programs that will address either of the following:

  •  Make ADR processes more accessible and generally available or utilize them to improve traditional options for resolving disputes in the U.S. justice system.
  • Create innovative and additional ways to engage citizens in meaningful dialogue with one another and/or with government authorities including the police to address long-standing racial discrimination in the U.S., such as differences in the use of force in interactions with people in communities on the basis of race.

“During this crisis, professionals in the field of conflict resolution can play a vital role in helping all communities across the country by expanding access to ADR processes and services,” said James R. Jenkins, Chair of the AAA-ICDR Foundation. “We are also pleased to provide much needed funds at a time when they can do the most good through projects that serve those most harmed by the pandemic, or that promote community engagement, dialogue and resolution of historical differences in the administration of Justice in the USA on the basis of race.”

Eligible programs must have the capability to become operational in a short period of time, serve a significant diverse number of people, and make their work available to generate easy replication. Interested organizations are required to submit a preliminary application by August 14, 2020. The AAA-ICDR Foundation will select a limited number of applicants to draft a more detailed proposal. To download the application, please visit https://www.aaaicdrfoundation.org/grants.

About the AAA-ICDR Foundation

The American Arbitration Association-International Centre for Dispute Resolution Foundation (AAA- ICDR Foundation) is a 501(c)(3) not-for-profit organization that is able to solicit donations and provide grants to fund a range of worthy causes that promote the Foundation’s wide-reaching mission, which is to support the use and improvement of dispute resolution processes in the United States and internationally.

Its focus includes fostering measures that reduce potential escalation, manage and resolve conflicts; increasing access to justice in and through alternative dispute resolution; and encouraging collaborative processes to resolve public conflicts.

The Foundation is a separate 501(c) (3) not-for-profit organization from the AAA®, and the Foundation is not involved in any way in the oversight, administration or decision making of the AAA-ICDR® cases or in the maintenance of the AAA-ICDR's various rosters of arbitrators and mediators.

For more information on the AAA-ICDR Foundation, please visit: www.aaaicdrfoundation.org

Resources: 

“What We Talk About When We Talk About Neutrality: A Commentary on the Susskind—Stulberg Debate, 2011 Edition.” Marquette Law Review, Spring 2012 (Volume 95, No 3).  

“Core Values of Dispute Resolution: Is Neutrality Necessary” (transcript of Panel Discussion), with J. Stulberg, L. Susskind and J. Lande. Marquette Law Review, Spring 2012 (Volume 95, No 3). 

A major theme of Beyond Neutrality were the limitations that this focus as our primary identity put on our capacity to work on major conflicts in an effective way.

Biography



Dr. Richard Barbieri is a board member of the Association for Conflict Resolution and Managing Editor of the journal ACResolution.  He is past president of the New England Association for Conflict Resolution and the Martha’s Vineyard Mediation Program.

Bernard Mayer
Bernie Mayer, Professor of Dispute Resolution, The Werner Institute, Creighton University, is a leader in the field of conflict resolution.  Bernie has worked in child welfare, mental health, substance abuse treatment, and psychotherapy.  As a founding partner of CDR Associates, Bernie has provided conflict intervention for families, communities, universities, corporations, and governmental agencies throughout North America and internationally for over 35 years. Bernie’s latest book, The Conflict Paradox, Seven Dilemmas at the Core of Disputes, is just out (January, 2015).  Earlier books include: The Dynamics of Conflict, Beyond Neutrality, and Staying With Conflict.

Professor Richard Susskind OBE is an author, speaker, and independent adviser to major professional firms and to national governments. His main area of expertise is the future of professional service and, in particular, the way in which the IT and the Internet are changing the work of lawyers. He has worked on legal technology for over 30 years. He lectures internationally, has written many books, and advised on numerous government inquiries. Richard lectures internationally and has been invited to speak in over 40 countries and has addressed audiences (in person and electronically), numbering more than 250,000. He has written and edited numerous books, including Expert Systems in Law (OUP, 1987), The Future of Law (OUP, 1996), Transforming the Law (OUP, 2000), The Susskind Interviews: Legal Experts in Changing Times (Sweet & Maxwell, 2005), The End of Lawyers? Rethinking the Nature of Legal Services (OUP, 2008), Tomorrow’s Lawyers (2013), and has written around 150 columns for The Times. His work has been translated into 10 languages.