Business Conflict Blog by Peter Phillips
Anecdote One: The Bach St. Matthew Passion begins with a piece of music that is scored for two orchestras and two choirs, who ask and answer questions antiphonally. From time to time a boy’s choir singes over the assembled masses a melody that is a chorale — a familiar melody to the congregants at the Thomaskirche in Leipzig for whom the piece was written. Both in this opening number and in the other chorales that are featured in the Passion, it is assumed that the congregation would join and sing as these familiar melodies appeared. What a remarkable sound that must have been: Both choirs, both orchestras, the treble choir and all the people, joining in an event both new and deeply familiar.
Query One: Is there a melody that an American audience could hear, that they would all recognize, and could all sing together?
Anecdote Two: A Chinese friend of more than ten years’ duration was walking with me down Fifth Avenue a few summers ago during the lunch break. Dodging bikes and kids and hustlers and shoppers and tourists and delivery guys she asked me, “Peter, when you are on the street in New York, do you know who is an American and who is not?” No, I said, people who are visiting America and people who are Americans look the same. ”That would make me uncomfortable,” she said. ”In Beijing you know who on the street is Chinese and who is not.”
Query Two: Does it matter that Americans can’t recognize each other?
The Point: Negotiators at the table might have completely different interests and no shared ground as to the law or the facts; they can nevertheless contribute to a productive mediation because they are there. They share the dispute itself, and they share at least an interest in resolving the dispute in their clients’ favor. They share a recognition of the process, and a willingness to make themselves heard.
By contrast, the negotiator who has no interest in investigating terms to resolve the case, the one with instructions to use the process to find ways to further hurt the counter-party, the one who is there because the court said he had to be, the one who has not yet billed enough to justify terminating the representation at this point….
I’ve presided over such mediations. It’s like an un-shared melody, or an indistinguishable crowd. There is no purchase, no traction. In a private dispute, is there anything a facilitator can do to transform this waste?
And, writ large, are we Americans at risk, in our public discourse, of retreating into this regrettable condition?
Just Court ADR by Susan M. Yates, Jennifer Shack, Heather Scheiwe Kulp, and Jessica Glowinski.By Nicole Wilmet