Mediation is about Necessary Endings- Constructal Law

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Every ending is just a new beginning. We just don’t know it at the time. 

Mediators inhabit this strange world of endings and beginnings. It is an intermediate state  of disorientation where the status quo is unsustainable, but the parties have yet to  transition to the new. Anthropologists call this transition stage liminality. 

We tend to treat conflict as something of a failure or something that has gone wrong.  Something to be rectified or made right. However, conflict is just a signal that something  must change. It is far more productive to see it as a natural change agent that opens the  door for the new. 

This change in the way conflict is viewed started to emerge with Ury, Brett and Goldberg’s  book ‘Getting Disputes Resolved’ (1989) in which they viewed conflict from a systems  perspective.  

This approach was developed further in the early 1990s by Christopher Moore, Bernie  Mayer, Susan Wildau et al at CDR Associates in Boulder Colorado in their Dispute System  Design workshops which I attended. The idea was to bring conflict out from the shadows  and into the light. 

The workshop had a profound effect on my thinking as a mediator, opening me up to the  realisation that conflict is an energy source. It is the fuel needed to break through blockages. Without it, people stagnate in the shadows of an organisation or within a relationship.  

Constructal Law 

This brings me to Constructal Law developed by Adrian Bejan, Professor of Mechanical  Engineering at Duke University in the US. It describes the phenomenon of flow in all of  physics that governs our human existence. It basically says when the flow stops you die  

whether it is a blocked vein causing a heart attack or stroke, a blocked river that stagnates  or a blocked family group, organisation, government, country or empire that decomposes. 

He puts it in the positive: 

“For a finite-size flow system to persist in time (to live) it must evolve such that it provides  greater and greater access to the currents that flow through it.” 

It is a version of the two laws of thermodynamics which concerns the natural flow of  processes in the human and physical world. We know, through the second law of  thermodynamics, that flow goes in only one direction, that is, from hot to cold. So, a volcano  will cool naturally but an iceberg won’t melt unless energy is applied.  

Entropy, which is a scientific concept associated with disorder, randomness and uncertainty, always increases. Things break down over time. We grow old, we don’t grow younger. 

We clean our bedroom on a Sunday night and by Wednesday it is messy. It doesn’t clean  itself without us putting energy into it. While the second law is far more complex than this simple example it does give you the idea that things naturally get messier and increasingly random. 

However, all is not lost because the first law of thermodynamics states that the total energy  of the universe remains constant. Therefore, nothing is created or destroyed, it just changes  its form.  

This is the circle of life. Things die out and are reborn in a new form. Generations come and  go. New ideas take hold then die and new ones take their place. It’s all about flow.  

Max Planck, the German theoretical physicist, suggested that science progresses through  the funerals of the previous generation of scientists. His full quote was:  

‘A new scientific truth does not triumph by convincing its opponents and making them see  the light, but rather because its opponents eventually die and a new generation grows up  that is familiar with it’ 

Each mediation, in its own way, is a microcosm of that death/rebirth flow cycle. Mediators  work in the flow of life particularly focused at its tipping point.  

The Santa Fe Institute 

Some four hundred miles south of Boulder Colorado is the city of Santa Fe, New Mexico, the  home of the Santa Fe Institute (SFI) dedicated to the study of the science of complexity. It is  based on the principle of inviting leading scientists and professionals from around the world  to work outside their field of expertise to bring novel insights into complex problems. It  

breaks down the culture of silos so prevalent in traditional universities. It’s operating principles include the following: 

• Scientific work at SFI is always pushing creativity to its practical limits. We always court a high risk of failure. 

• Occasionally we find that an invited guest is insane. This generally cheers us all up.  We know we’re on the right track. 

Two of their founding members have added important insights into the law of flow that I  believe are helpful in understanding the mediation process. 

Stuart Kauffman developed the principle of the ‘adjacent possible’. It proposes that  biological systems (including humans) are able to morph into complex systems by making  incremental changes. The adjacent possible contains all the elements outside but near that  represent the opportunities to expand into new connections. 

Steven Johnson describes the ‘adjacent’ possible as a kind of shadowy future, hovering on  the edges of the present state of things, a map of all the ways in which the present can  reinvent itself.  

Kauffman describes the ‘adjacent possible’ as where things happen. He maintains that the  complex systems best able to adapt are those poised on the border between chaos and 

disorder. That the process of stepping into the ‘adjacent possible’ is one of being sucked  into opportunities and innovation 

Once you step into an adjacent possible a whole new world of adjacent possibilities opens up and on you go. It’s about taking small incremental steps rather than intellectually  jumping ahead to a conclusion and then pressuring the parties to close the gap. 

As a mediator I find this a great term to describe the effect of a small concession by one  party. Often something unexpected and unpredictable emerges. It is like stepping through a  portal into a new possibility. It is consistent with constructal law and the power of the ease of flow. Going with the flow, as the saying goes. 

Emergence 

Nobel Prize winner Murray Gell Mann (SFI founding member) proposes that what emerges is not related to what went on before. It’s not made up of the sum of the parts. Put another way, what is going on now does not determine what emerges. As he states: 

“You don’t need something more to get something more. That’s what emergence means.” 

The concept of emergence resonates with my experience over 30 years as a practising  mediator. I often see a party unexpectedly take a quantum leap into something totally new.  It is almost as if the mediation starts again at a different level.  

It is why trying to predict in advance using the solution focused hypothesis approach can  skip over those little adjacent possibilities and the opportunity for emergence of the new.  

It challenges the concept of the hero mediator who, using their toolbox of skills, insightful questioning, or content expertise, personally leads the parties through the desert to a solution.  

I am not suggesting that the mediator does nothing. Although anyone watching me mediate could easily form that view based on my apparent inactivity. It is my lesson from Colorado,  that conflict is the energy source for change. It can melt icebergs. It is harnessed through  the human connection between the mediator and the parties with the mediator as the mirror. It is called humanistic mediation (Jacqueline Morineau). 

It is creating a venue for the natural laws of change and flow to work its magic. It’s called  doing without doing. Mediating without mediating. 

The Problem with Systems Thinking for Humans 

Apart from the structured industrial engineering context systems thinking is counter productive when applied to the human condition. As Murray Gell Mann has stated: 

“Today the network of relationships linking the human race to itself and to the rest of the  biosphere is so complex that all aspects affect all others to an extraordinary degree.  Someone should be studying the whole system, however crudely that has to be done, because no gluing together of partial studies of a complex nonlinear system can give a good  idea of the behavior of the whole.”

In other words, we humans are not the sum of the parts. We are interwoven with each  other forming and being reformed as we move forward. We are not in total control of our  own story. As the moral philosopher Alasdair MacIntyre has said, our actions are always  caught up in the web of others.  

A lot of social science theories, while intellectually stimulating, tend to fall into the trap of  simplistic dualism such as something is good therefore something is bad. It is static  intellectual thinking that doesn’t describe a world in a state of flux and change that we  actually inhabit. It doesn’t take into account time and context. 

This dualism can be seen with Daniel Kahneman’s System One thinking, which is bad, and  System Two thinking which is good (Thinking fast and slow, 2011). Noise which is bad and  presumably no Noise which is good (Noise: a flaw in our human judgement, 2021).  

A good example of the flaws in dualistic thinking is the proposition that people have  cognitive biases that are flawed patterns of responses to judgements and decision problems. However, these so-called biases are nothing more than how we humans navigate a world where we have insufficient information. They form part of our ability to adapt and  make quick decisions in complex situations.  

This ability to filter out the irrelevant (like the gorilla) and focus on the task at hand  underpins our success in creating the amazing physical world we live in. If we have so many  flawed biases, how is it that we are so successful as a species. They must be of practical use to us.  

The only people who are without biases are those on the autism spectrum. They find it  difficult to interact socially. They populate the IT industry because they can see everything.  We will end up needing our so-called biases to be able to successfully navigate big data and  AI, which are themselves autistic processes. 

The use of the negative/’bad’ word bias, which sounds very much like prejudice, which it is  not, is another example of the good/bad syndrome that underpins dualistic thinking. A  better word would be perception. This human trait is neither good nor bad. It is just how we are.  

This artificial right/wrong, good/bad categorisation polarises thinking and debates which then become addictive and contagious. Its logical extension can be seen in the political and  social polarisation currently spreading in the US.  

Angela Merkel 

I would suggest mediators follow the approach of the former German Chancellor Angela  Merkel. Kati Marton in her biography The Chancellor, (2021), notes that Angela Merkel had  the confidence to sit in silence which she would deploy to unsettle adversaries. She said she  was like a tight-rope walker only thinking about the next step (the adjacent possible).  Paradoxically she succeeded by working sideways indirectly with a light touch. She was an  incrementalist who sought results no matter how modest. She worked for change obliquely  (Obliquity, by John Kay 2010)

There is now a new German verb ‘Merkeln’ – to do nothing, make no decisions, issue no  statements. It was meant as a criticism but I’m sure she would accept it as praise. 

Merkel allowed the answer to emerge. She watched with soft eyes and waited for the  unexpected before making a bold move.  

Her approach to politics and decision-making was no doubt influenced by her background of  being awarded a PhD in physical chemistry with her thesis on quantum chemistry. She was not your usual solution focused outcome driven politician. 

Angler Merkel’s approach resonates for me as a mediator. The role of flow in life and in the  mediation setting is really all about the subtle use of time and space. It’s about being  present in each sequential moment (mindfulness) of the flow. Mediators can create a venue  in which to slow down or speed up time. We play with time and space. It is referred to as  temporality. As my colleague Barbara Wilson has often said:  

“Time is the mediator’s friend”.  

The ability of the mediator to be comfortable with time and with necessary endings provides a role model and guide for the parties to be able to sit in moments of uncertainty  and allow something new and unexpected to emerge.  

Summary and conclusion 

In reflecting on my 30 years as a mediator and 50 years in the law I do not see it as a series  of patterns. This is because nothing is ever repeated in the same way. As the Greek philosopher Heraclitus (500BC) said:  

“No man steps in the same river twice. For it’s not the same river and he’s not the same man.”  

Rather, looking back, I see a series of endings and new beginnings. The inexorable flow of  time is the biggest factor that drives these beginnings and endings sometimes quickly and sometimes over a long period. Change is the only constant. As the Greek poet Menander (300BC) said: 

‘Time heals all wounds.’ 

I can think of no better summary of what I am proposing in this short paper than the final  part of the speech the former German Chancellor Angela Merkel gave at the Harvard commencement address for the class of 2019: 

“The moment when you step out into the open is also a moment of risk-taking. Letting go of the old is part of a new beginning. There is no beginning without an end, no day without night, no life without death. Our whole life consists of the difference, the space  between beginning and ending. 

It is what lies in between that we call life and experience. I believe it time and time again; we need to be prepared to keep bringing things to an end in order to feel the magic of new beginnings and to make the most of opportunities. 

That was what I learned as a student, and it is what I know in politics. Who knows what  life will bring after my time as a politician? That, too, is completely open. Only one thing  is clear. It will again be something different and something new.” 

Angela Merkel, May 30, 2019