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Archive for May, 2012

Following up on the questions I raised in the post on mediation and legitimacy, check out these brief talks by three leaders in the US field of mediation, asking what it is that unites – or divides – the field, of even if we’re a “field” at all. The questions are relevant for me at the moment if what we’re trying to do is to promote mediation: we are bound to ask, and may not have really begun to ask, what version and what vision of mediation it is that we’re promoting. We can’t assume we agree on this – nor, especially, will there be agreement between official and unofficial promoters of mediation.

So, see these links that appeared on the mediate.com website:

http://www.mediate.com/articles/meadow1.cfm

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Close to 20 years ago (in fact, in 1995) a group of us met in Cambridge, MA, under the auspices of the Program on Negotiation’s public/practice offshoot, to talk about just one question, roughly paraphrased – what’s  left of the “Harvard model” of negotiation once you add culture? In part this was a response to the concerns expressed by critical commentators that this supposedly neutral process of negotiation was, in reality, a cultural model in its own right. We can date that meeting tragically, as Jeff Rubin, one of the participants, died in a mountaineering accident the following weekend.

No report ever came out of that meeting; but we can see the burgeoning literature on culture, conflict and negotiation as continuing the conversation.

It’s interesting to recall, however, the one simple conclusion was reached as to the impact of culture on this core (Western) model of negotiation: people need to tell their stories. And the task of negotiators – and mediators – is to attend, to respect, to challenge those stories; to modify their own; and jointly – in the kind of metaphor used by John Paul Lederach – to weave solutions out of those narratives.

None of this will come as a surprise to practitioners of narrative mediation and the work of John Winslade and colleagues, in which the narratives of a conflict lie at the heart of understand and transforming a conflict.

It’s also recognised that we spin stories, augment the truth, deceive even ourselves in recounting the “truth” of  conflict. See, for example, this blog by Cinnie Noble: http://www.adrhub.com/profiles/blogs/true-or-not-so-true-conflict-story-telling.

The point of this note is partly just recall that challenge to the model that has become so central to contemporary negotiation practice – and to note, as far as I’m aware, that nothing ever became of the conclusion. It’s partly also to link negotiation and, even more so, mediation, with the “narrative gift” which Jerome Bruner sees as not only central to how we make sense of the world but also as “one of the principal forms of peacekeeping.” (Acts of Meaning, Cambridge, MA, Harvard U.P., 1990; p.95).

Three aspects of narratives or stories at least can be linked to dispute resolution and transformation practice:

  1. first, the existential foundation, the recognition that we do, and need to tell stories, to construct a narrative reality (taken to quasi-fictional extremes by Bruce Chatwin in his The Song Lines, and his view of the Australian Aboriginal world sung into existence).As Eli Wiesel comments:

    “Our lives are rooted in story. Our stories are our lives. We find out who we are by the stories we tell and are told. The lives we live and the conflicts we embrace are held together by motif and myth. If we are to gain a sense of who we are, where we stand in the world, what our relationship in and with the world is to be, then we must see how our story works. A story is a way to articulate what it is we are living through and how the world lives in us as we live in it … Stories give meaning to common and shared experience.” [Eli Wiesel, quoted in J. Elkins, “The quest for meaning: narrative accounts of legal education,” Jnl of Legal Education   v. 38 (Dec. ’88) p. 577-98]

  2. second, the process aspect:  the implication of the first point necessarily is that if stories are what people come with, this is the material we work with; and
  3. third, the socio-political, hermeneutic dimension, recognising that negotiations are part of the ongoing contraction of social meaning and, to crank this up a level or two, can form part of the kind of deliberative dialogue, civic conversations, democratic iterations, public reason . . . or whatever the preferred term, that writers like Habermas, Kingwell, Benhabib, Sen, and Appiah promote, with differing emphases and arguments, but with the same core idea of the essential, political and constructive role of dialogue. There’s a hoped-for dimension to this too – in that much of the underlying political concern is that there is a lack of civil and deliberative dialogue – so, in that sense, the job is to recover and reinvent the tools of collective narrative; and in this respect, the role of dispute resolution processes is not merely to work with existing narratives but also – more so? – to build that capacity for constructive dialogue.

If, then, people want to tell their stories – and it’s a conclusion amply sustained by the long story-telling traditions of surely every society and culture – then we can look in two directions to work with that material: one, is to look at the narratives people bring to current negotiations and mediations, as the material to work with; the other is to take that foundational resource and turn it to the optimistic and participatory goals that inform cosmopolitan (Beck, Appiah) and democratic (Benhabib, Habermas, Kingwell) writers.

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I see a recent comment by my colleague, Prof Eduard Vinyamata, Director of the Campus for Peace at the Open University of Catalonia, on current challenges to mediation: http://www.uoc.edu/portal/english/campus_pau/articles/opinio/opinio/crisi_mediacio.html

The link with my previous entry is simply in the question of what “drives” mediation and what were – and have become – the underlying principles of access to resolution.

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Following recent meetings with some of the mediation “stakeholders” in Singapore, I’ve been thinking about another dimension of culture and mediation. We typically think in terms of the impact of culture on process, perceptions of conflict, relationships and so on; but what becomes apparent is the impact of context and culture on the foundation of mediation – that is, on how mediation fits the normative and cultural life of a community or society and how, in it’s more modern versions, mediation programmes are initiated.

Part of the question here arises because there are perceived to be challenges in getting mediation going – even though it is, in many respects, well established. And it now seems blindingly obvious to me that some of the obstacles to developing – or more likely exporting – mediation in and to new locations arise because of questions of cultural “fit”.

This now is how I look back on the same questions I addressed in looking at why mediation seemed to be slow in developing in Germany, notwithstanding the fact that the same sociology, the same issues of access to justice etc were all being considered in Germany at the same time as in the US, the UK, NZ etc. If I think of the literature I read at that time, the issue may well be this:

1. the German response was one of constitutional and legal caution, hesitating to adopt a process that seemed not to have solid constitutional and legal foundations;
2. the American literature on the founding ideals of “alternative” dispute resolution emphasised autonomy, critiques of legal formalism, the primacy of participation and choice . . . all of which are in fact challenges to core principles of legality;
3. at the same time, note the parallel critique of ADR from people like Fiss and Luban, concerned at the loss of the public domain in law and norms – a critique not unlike the early German reservations;
4. when, however, mediation can be given a place within the structures of law – through legislation, through court-annexed processes, or through judicial mediation, then at least some of those reservations are dimmed.

So, if I think about the issues of establishing mediation in, say, Singapore, some of the elements are these – especially when the question turns to locating the right “champion” to assist in the promotion of mediation, or determining the government agencies that need to be brought onside:

1. What values of mediation are being promoted (or are contested)?
– access to justice
– equity (including economic and indigenous equity issues);
– autonomy, responsibility
– efficiency and cost saving
– social cohesion, civic values

2. What process of mediation is promoted?
– independent, ‘alternative’
– indigenous
– court-linked
– professional
– Western, Asian . . .

3. What agencies are engaged?
– professions (new turf wars?)
– courts
– government (legislation)
– community bodies
– indigenous, faith or cultural groups
– civil society

4. What outcomes are expected?
– cost and time saving
– capacity building
– autonomy and participation
– settlement
– civic and civil dialogue (cf médiation sociale)

5. What constraints and critiques?
– public values (vs. private settlement)
– constitutional, formalist
– limiting court access (rights issues)
– loss of precedent
– emergence of parallel faith-based systems

6. What history is invoked (in promoting mediation)?
– the rise of informalism
– critiques of legalism
– community activism
– efficiency aims
– pluralism and indigenous & faith-based processes
– democratic participation and dialogue (e.g. in negotiated rule making)

7. What politics and policy issues?
– liberal individualism and values of autonomy, choice;
– identity, indigeneity, pluralism
– state interests in efficiency, costs, court backlogs
– negotiated rule making: participatory politics
– normative coherence (and managing mediation)

8. What jurisprudence is invoked?
– pluralism: substantive, procedural
– soft law and the role of the state;
– justice: again, procedural and substantive
– legitimacy – either [and these seem to be competing values]:
• by maintaining links to the legal mothership or
• by fostering wider access to resolution/justice
– role of state institutions in decision making
• what distance between mediation and law?
– institutional & political priorities:
• e.g. Singapore’s “hub” aspirations
• what policy reasons for promoting mediation
• civic and community values;
• mediation as a form of informal social ordering (cf Abel)

9. What cultural norms and values?
– recognition and inclusion of cultural processes
– creation and recognition of separate processes
– a cosmopolitan approach to the negotiation of pluralism
– or liberal assumptions (Brian Barry) of sufficient inclusiveness
– faith-based claims to distinctiveness
– indigeneity claims

10. What idea of agency in legal process and development?
– who are the drivers and champions
– what is the scope for initiative
– how is agency shaped by expected outcomes – e.g.
• efficiency
• civic order
– how is agency also shaped by the political context
• what ‘permissions’ are needed
• what scope for critical alternatives

The cultural point then is that adapting mediation involves more than adjustments to style, process, language etc – it seems to involve addressing what actually are underlying principles of legitimacy. And my recollection of the German literature on this is that that issue was in fact paramount – not least in the concern that there might be constitutional impropriety in having people making their own decisions which is directly an affront to principles of adjudication and public justice.

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