Reading two excellent articles in Mediate.Com, Douglas Noll’s “Talking it out is the Path to Peace,” and Dr. Deri Joy Ronis’ “Creating a Culture of Peace,” prompted the thought that perhaps as mediators, we may sometimes have no choice but recognize the place of conflict in the scheme of things, and admit that there are times when there is no option but to “give war a chance.”
The ghastly historical example of the need to exercise discrimination in attempting to “talk it out” is Neville Chamberlain’s ill-timed, ill-fated flight to Munich in 1938 to talk it out with Hitler.
The concept of talking it out contains certain assumptions about the other person or entity with whom the peace discussion is to be had. Consider the first great example of non violent action in the twentieth century, Gandhi. Was he not fortunate in his adversary? Was it not British culture and attitudes that made it possible for Gandhi to embark on his struggle, and British public opinion that kept him alive? There were many European empires yet no Gandhi arose in the context of the French, Spanish, Dutch, Portuguese or German empires. To see how the French managed, watch Gillo Pontecorvo’s 1966 movie The Battle of Algiers , said to be required viewing at West Point as the best description of urban guerilla conflict; systematic torture worked quite well for a while, but eventually “le catastrophe.”
What about the civil war? Could the secession of the southern states have been prevented without conflict? Lincoln did everything in his power to prevent the onset of war, but like the revolutionary war, the issue was not one that would yield to talk.
Even after the Emancipation Proclamation, the plight of most freed slaves continued to be one of oppressive servitude in the form of share cropping for nearly another hundred years. Even during World War II, African-Americans drafted into the U.S. Army remained segregated. Not until Martin Luther King did white attitudes to blacks undergo drastic change, and King had to engage in a long campaign of active conflict in order to attain his goal. He chose to fight non violently, but it was conflict nonetheless, and it was intended to be confrontational. We rightly revere Martin Luther King for his courage, but he was able to struggle non violently partly because public opinion in the north, which the Administration in D.C. could not ignore, supported his right to do so. Nor did King did not have any aversion for legal process; indeed, he insisted upon it, he relied upon it. He understood its strength and its deficits, saying “It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that’s pretty important;” a statement of considerable pathos considering how he met his end.
There is tension between impulses to peace and war, violence and non violence, litigation and mediation that simply cannot be avoided. That is why a major tool in every mediator’s toolbox is the BATNA, why we say to the parties: “Consider what will happen if you don’t settle, what risks you are taking, how failing to settle may result in something worse.”
Americans’ self-image is individualistic and competitive, and it is no accident that Americans are the most litigious people in the world. If talking it out were the societal norm, there would be minimal litigation and little need for mediators. Mediators exist because of the prevalence and persistence of the “Gun Fight at O.K. Corral” mentality, and partly of course, by reason of the complicated mess that currently describes our legal system, as expressed in the words of U.S. Supreme Court Chief Justice, Warren E. Burger: “Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people.”
Internationally, there are indications that the United States is drifting even further from the rest of the developed world, preferring to stick with the individualistic frontier attitude in preference to collaborative conduct. In the first gulf war in 1991, the U.S. proceeded with the sanctions of the United Nations, but by the time of the second gulf war in 2002, the second George Bush proceeded without United Nations approval and only the British as effective allies. The U. S. also refused to ratify the Kyoto Protocol to curb greenhouse gases, rejected the Land Mine Treaty and Comprehensive Test Ban Treaty, withdrew from the Anti-Ballistic Missile Treaty, and refused to support the International Criminal Court.
Europe is proceeding on a quite different course, and certainly has good reason for doing so, considering that Europe has been the cockpit of war for a thousand years, and in 1945 lay in devastation. Sixty years later, an attitude of collaboration in place of adversarial process has so taken hold that the European Union now embraces 25 nations, with 25 different languages, histories, cultures and ethnic compositions, yet united in a common goal, drafted into the language of the 1957 Treaty of Rome: “… to substitute for age old rivalries the merging of their essential interests.” Interestingly, the EU’s GNP now exceeds the U.S.’
Even so, critics claim that these accomplishments have been made possible only under the protective shield of American military might. Michael Gove writes: “Europe’s leaders seek to manage conflict through the international therapy of peace processes . . but they are really the withered autumn fruits of a civilization in decline.”
Some litigators are equally withering about mediation: “I try my cases,” they boast, a variation on the theme “real men don’t eat quiche.” But the reality is that these “real men” do settle their cases 96 percent of the time. They pursue peace, while preparing for war, which is the old formula.
The world was shocked by the atrocities committed by both sides in the Kosovo conflict, but it was American military power that had to step in in the face of European irresolution. The world was horrified by the Rwandan genocide, but did nothing effective to prevent it. The world is horrified by the Darfur massacres in the Sudan, but precious little has been done to prevent them. It is not always possible to talk it out; sometimes, you have to act with armed force. It would have been lovely if Chamberlain had been able to talk Hitler out of it, but Churchill was proved right about the impossibility of negotiating with a sociopath. The path to peace is not always through negotiation.
Just Court ADR by Susan M. Yates, Jennifer Shack, Heather Scheiwe Kulp, and Jessica Glowinski.Donna Shestowsky at UC Davis School of Law has been researching the relationship between litigants and...By Jennifer Shack