Homeland Security Watch

News and analysis of critical issues in homeland security

September 29, 2010

Alternatives

Filed under: Legal Issues,Organizational Issues,Strategy — by Mark Chubb on September 29, 2010

American Socio-economic Fairness

Source: Cohort Zero at http://www.cohortzero.com/

I spent last weekend attending a course on mediation in the hopes of learning skills that might prove useful in crisis management and public engagement since these processes often become framed not just as failures but as conflicts as well. Although familiar with the field before taking the course, the two days of instruction and practical role play were a pleasant reminder that we always have alternatives to thinking and acting in the ways we usually do. At the same time, I was reminded that breaking old habits of mind is an acquired skill that requires lots of patience and practice.

Most of the alternatives to conventional conflict adjudication and resolution don’t just seem messy, time consuming and inefficient, they really are! Talking with one another and taking the time to appreciate others’ positions is terribly difficult, especially when we know we are right to begin with. But the sometimes “irrational” solutions that arise from alternative dispute resolution process often lead to genuine reconciliation, which in the end begs the question whether the adversarial win-lose approaches typical of other proceedings is not only irrational but unjust as well.

Something surprising often happens when we engage in open, honest and ongoing dialog with the objective of finding something of benefit to all parties, especially those experiencing differences with one another. We learn that other people face many of the same difficulties we do. And their bad decisions and actions, like our own, sometimes result from the best intentions, distractions or plain old poor execution. In other words, we are not the only people who have trouble dealing with uncertainty, time pressure, ill-informed or poorly articulated expectations and competing objectives. And we are not the only ones who have trouble accepting the consequences of our actions, especially when they fall short of what we want.

An effective mediator recognizes the importance of remaining neutral and letting the parties find their own ways to solutions that might otherwise never surface. Often this involves validating their feelings, expressing empathy for their position, clarifying their issues and interests and summarizing what they said. Taking the time to do these equally with each party also helps model for the participants the behaviors that will lead them to find a satisfying resolution of their own making.

The instructor for my course — a middle-aged Israeli woman who was drafted at 18 years of age to serve as combat nurse in both the Golan Heights and West Bank just before the outbreak of the Yom Kippur War– seems particularly well-equipped to appreciate both the subtleties of these techniques and the genuine importance of their application to conflicts among people, whether they involve individuals, institutions or cultures. For the past 20 years, she has mediated a bewildering array of disputes ranging from the petty to the preposterous to the truly ponderous. In the process, she has acquired a deeper understanding not only of conflicts among human beings, but also of the conflicts within herself and by extension in each one of us.

As we talked throughout the two days, it became clear that she still holds very strong views about the conflicts in the Middle East. But she also made it clear that she is far more aware of the ways others see them too. As such, she is not one to advocate for, much less favor, quick fixes. I could not help but wonder how useful her input and that of others like her might be if they were given the mantle of resolving the dispute between Arabs and Israelis rather than relying on leaders whose vested interests in maintaining the power of the state and their own power often leads them to narrow conceptions of what’s workable.

As I contemplated the questions posed by Phil Palin on Sunday and thoughtfully debated by several of us over the past couple of days, I wondered what our discussions could achieve and whether similar efforts if engaged by a wider audience could actually create a more peaceful world. The course helped answer this question as well.

Change, whether from a state of conflict or chaos, to something more stable, even comfortable, requires participants to engage their heads, hearts and hands. Every conflict involves substantive issues. Often the absence of procedural fairness inhibits resolution, and adds to the frustration or fear of future consequences that brings people to impasse. It may be possible to resolve the issues at the center of a conflict without addressing the interests underlying the participants’ positions. But avoiding the hard work of examining participants’ emotions, biases and the values that inform them often leaves everyone wondering whether anything really changed. We all need answers to the why, what and how questions before committing ourselves to which direction we will go.

Some people cannot or will not participate in mediation. People who lack self-awareness or a capacity for empathy cannot engage mediation in any meaningful way. Yet that does not mean we, as their adversaries, lack alternatives, it just makes finding them, negotiating them and implementing them that much more difficult as we carry water for both (or all) sides.

During his campaign for the presidency, Barack Obama was widely criticized for suggesting we could and should engage those with whom we find ourselves in conflict. Those who struggled to accept his stance became all the more uncomfortable, if not incensed, when he received the Nobel Peace Prize for little more than suggesting we might make the world a more just and peaceful place by doing so consistently. Very soon afterward, the President was ridiculed by the right for suggesting that empathy was an essential quality in a supreme court justice.

Mediation is an intensely practical pursuit, not some sort of intellectual fantasy or philosophical exercise. It accepts that getting something better for each and every party often means one or more party must accept something less than that to which they might otherwise consider themselves entitled. Getting better results for all often involves accepting something less for ourselves rather than extracting something more from others.

Whether we want to see peace in the Middle East, improved employment prospects at home, an end to Congressional gridlock or a more equitable, efficient and accessible health care system for ourselves and our fellow citizens, we may have no better option than ending our obsession with and insistence upon justice. As we consider alternatives to the conflicts preoccupying us today, we would do well to talk with one another about how we might live if we were simply fair.

Further reading:

Dworkin, Ronald (2008). Is Democracy Possible Here? Principles for a New Political Debate. Princeton University Press.

Habermas, Jurgen (1984). The Theory of Communicative Action (Volume 1): Reason and the Rationalization of Society. Beacon Press.

Habermas, Jurgen (1987). The Theory of Communicative Action (Volume 2): Lifeworld and Systems: A Critique of Functionalist Reason. Beacon Press.

Rawls, John (1971). A Theory of Justice. Belknap Press.

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9 Comments »

Comment by William R. Cumming

September 29, 2010 @ 5:51 am

Well another great great post from Mark. Alternative Dispute Resolution and Mediation grew out of two factors. First the expensive and very very inefficient adversary system represented by the civil process in the courts. Second, the fact that Judicial Temperament is a much rarer commodity than many think and allowing your client to think they may “win” given the vagaries of the civil justice system is really just taking advantage of the ignorance of the clients, usually for profit or gain by the lawyer.
International teams skilled in mediation have grown more prominent and I have often wondered why the UN and other appropriate mulitlateral organizations don’t make more use of them. Is George Mitchell, former US Senator and Judge not the apotheosis of such skills?
That said, terrorism and homeland security are imbedded in the notion that violence can result in objective political change and perhaps in the dominance of some culture, religion or political belief system. Its opposite homeland security [civil security] is imbedded with the notion that violence can be used to prevent violence.
The world that mankind inhabits is not unfortunately a black and white world but much more shades of grey. Yet today in the US in particular the polity and its leaders is led to believe that adversary relationships and right versus wrong, evil versus good, etc. etc. are in fact reality.
What is our (US) reality? Democracy is a tough proposition in that trying to determine the will of the majority is difficult in itself. Trying to erect and maintain a system that is respectful of individualism and the rights of the minority is clearly very very difficult. Yet this line drawing which is a constant process must be organized on on the basis of some fundamental fairness or understanding of the beliefs and opinions that make up the polity and which hopefully lead the majority to wise decisions. So the mediators and the ADR types have to be the wise men and wise women but unfortunatley, there power to faciitate, not to decide, is in very very short supply.
Clearly Sir John Keegan’s book “On War” which delves into the history of warfare and its causes often comes back to the basic problems of “ego” and certain other factors. In reality I beleive that for better or worse, FREUD and JUNGER and others who led advances in psychology and related fields are the dominant factor in making this a “pyschologically driven world”! And this is the dominant fact of the 20th century. Massive egos pitted against massive egos in the leadership and the populace at large.
The problem I have is that in my lifetime I have come across many very nice but very incompetent people. And I have come across many with huge egos that were also very competent. But what I see is that there seems to be a loss of self-control generally and specifically in the US resulting in the state intervening in areas that self control should have effectively restrained.

On another blog, I described the primary and distinguishing characteristic of the man who really won WWII General George Marshall as having one of the most effective mechanisms of self-control in history. That self-control allowed a huge ego and motivation and drive to be even more effective when matched with enormous intelligence.

MEDIATORS and ADR personnel unlike many Judges show that same self restraint and self control so that they can assist those involved in seeing their way to their true interests and problem solving. Thus, they facilitate self-control. Personally I believe schools and colleges and universities need to do far more with mediation and ADR instruction, trainng, and teaching. The “game” paradigm has definite limits in the modern world with its “win” or “lose” pathologies.

I argue that no side in warfare “wins” or “loses” in the traditional sense of those words unless of course their is anniliation of some faction or side. 5000 years down the road who will be considered to have won or lost WWII?

Well again a great post! Every man an ayatollah makes for the ultimate failure of reason versus faith or said another way self-control versus the dominance of the ego.

We have evidence of self-control in the Presidency and now more and more even his friends argue for displays of “ego”! Why is that? I don’t have the answer but this worries me greatly.

Comment by HISTORY DETECTIVE

September 29, 2010 @ 6:11 am

Goober built a car inside for Sheriff Andy. The sheriff from Mt. Pilot wanted Goober to build him one inside the courthouse in Mt. Pilot. Barney was on the board of directors for the Tin Foil Drive at Mayberry Union High. Do your bud nippin’ best. Slaves don’t have opinions and comments are free. Bad landing gear trouble today. Ditched mechanics to save money. Got flying circus.

Comment by Philip J. Palin

September 29, 2010 @ 7:34 am

Participation, collaboration, and deliberation are, in my experience, fundamental to progress for a wide range of homeland security risks and opportunities.

Participation can usually be ginned up. Collaboration is unusual. Real deliberation is rare. As a result, risks and opportunities are not substantively engaged. Progress is not made.

What is usually missing from collaboration and deliberation is the authentic listening that mediation (and meditation?) require.

Comment by Dan O'Connor

September 29, 2010 @ 8:28 am

Do not dismiss the need for trust in any collaboration. Change always has three parts; the initiator or the want of change, the object of the change, and the collaborative result. Change if often pitched as radical or extreme… to the other Gentlemen’s posts its often closer to one another’s point of views than perhaps lead to believe.

To persuade one to evacuate their point of view is daunting; no less than evacuating ones own. Hence, to Phil’s point, participation can usually be ginned up and almost universally is with focus groups, town meetings, etc. Collaboration is unusual because it takes sacrifice and compromise, not consensus. Real deliberation is rare.

As a result, risks and opportunities are not substantively engaged. Progress is not made. The quixotic leadership formula nets an ineffective zero
What is usually missing from collaboration and deliberation is the authentic listening that mediation (and meditation?) require
People can spot authenticity from a great distance away… unfortunately they can also spot lack thereof.

What we require, what we must have, is substantive, authentic, no holds barred candor in identifying and executing tasks…at the very same time embracing, reinforcing, and protecting civil liberties and the Nation.

Compromise of either is a corruption of our ideals.

Thanks for sharing,

Comment by John Comiskey

September 29, 2010 @ 9:30 pm

-Mediation requires unfettered inclusion and representation.

Our representatives/mediators are all too fettered by:

1. Political obligations to their benefactors and political parties
2. Uncompromisable belief systems and especially religous beliefs
3 Sheer greed and avarice
4. Inability of true public servants (those who want to serve the public good and ultimately the interests of humanity) to overcome the aforementioned.

Comment by HISTORY DETECTIVE

September 30, 2010 @ 7:59 pm

Fair warning. Number 1 shield better be in my hand on Friday. Alternatives? Hell to pay and people to pay. Gotta make payroll. Looks like more mall closings. Rough economy and all. These are the times that try mans credit cards. What’s she buying now? Pick up a mall for a song and make them dance with a 6 shooter 66. It’ll be fun.

Comment by HISTORY DETECTIVE

September 30, 2010 @ 8:12 pm

Working on a disbanding operation here. Low on money heavy on metal. The band plays on. They play dumb and get certified. Glorified mall guards.

Old Number 7

Comment by HISTORY DETECTIVE

September 30, 2010 @ 8:43 pm

38K bad gas line problems. Suck the gas pipe and get K a .38 Special. She can have more fun than should be legal. This is about to get crazy. If it ain’t crazy we have people for that. Thanks to BP you can watch the unthinking unfold on YouTube. Google hit squads. Killer apps. New technology, what can you do?

Birds digging sunflower seeds in covered bridge feeders. We got it covered.

Comment by HISTORY DETECTIVE

October 4, 2010 @ 10:22 am

Market undercurrent. Hit circuit breaker? Personally I’d put them in electric chairs and crank up the amps. Waiting for invitation. Feeders need refilling for the birds.

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