Conflict Resolution|Mediation|United States

Disputes Involving "Who You Are" Rather Than "What You Want"

In his keynote address to the Section of Dispute Resolution of the American Bar Association, MIT Professor Lawrence Susskind urged that it was time for ADR professionals to get involved in the failure of meaningful discourse in American public life, and to assist people to talk to each other about deeply held beliefs.  He focused on disputes that arise “when people describe who they are rather than what they want” and outlined an approach to dispute resolution that is distinct from the familiar Fisher/Ury interest-based model.

The underlying assumptions of interest-based facilitation — that the parties have interests, know their BATNAs, will seek maximum return without unnecessary delay, and will accept an agreement whose terms are better than no agreement — don’t work when people’s values, or their very identities, at at stake.  Abortion or same-sex marriage are not interests, or even principles; they define who some people are.  When these defining values are encroached upon or attacked, what facilitation model applies? 

Susskind took elements of three “real-world” events and developed them into hypotheticals for his students to work on.  The result was a four-part set of principles that chart a new way for professionals to urge disputants toward reconciliation.  The three hypotheticals were varients on the conflicts that can arise from equal treatment of homosexuals:

1.  Same-Sex Marriage in the Public School Curriculum.  A school district adopted a curriculum including discussion of same-sex parents at an appropriate level of middle school, and declined a request from some parents to pull their children out of class when that topic is being discussed.  The parents wished to protect their children from coercive sessions that taught that same-sex marriage was an acceptable norm, and the school could not administer a protocol whereby all parents are advised of the timing of all discussions on all potentially offensive topics so they could pull individual children out of class for a short period of time in each instance.  The parents lost a court challenge and, while appeal is pending, are asked by the court to mediate the issue. 

2.  Workplace Respect for Diversity:  An employer launched a diversity communications initiative featuring a series of posters with pictures of employees and legends such as “I’m female and I work at XYZ” or “I’m African American and I work at XYZ.”  One poster placed on the outside wall of an employee’s cubicle read “I’m gay and I work at XYZ.”  The employee posted biblical citations condemning homosexual conduct on the inside wall of his cubicle, and refused to take them down when requested.  The employer seeks to mediate the problem.

3.  Public Demonstrations Advocating, or Opposing, Gay Rights.  A city granted a permit to a gay rights organization whose public festivities attracted loud and boisterous opponents of gay rights.  The ghay rights organization countered by blowing whstles to drown out the opposing group’s bullhorns, surrounding the opponents so their signs cannot be read, and otherwise interfering with their assembly.  The city now seeks to discuss the terms of future permits.

In none of the “real” cases from which these hypotheticals were drawn did mediation actually take place, said Susskind.  Why not?  Because all parties presumed that the other side would not soften its demands, and because certain national advocacy organizations intervened, funded the continuation of the conflicts, and converted each of them into a cause célèbre.  The matters went to court because the advocates funding the causes sought to obtain a “right/wrong, yes/no” outcome of neatly framed issues of identified social value.  This procedure was, to the advocacy groups (and presumably to the local participants) logical.

What if, Susskind, asked, there were a different brand of “logic” applied?  He proposed a four-part approach that might have more salutory personal and social results, as follows:

1.  Separate Interests From Values and Deal With the Interests First.  One of the children of the advocating parents began to be picked on and bullied by her peers as a result of the dispute.   This is an event in which all parties have a clear shared interest, independent of the values over which they disagreed.  Classic problem-solving skills could be brought to bear on at least this part, and the first steps at coordinated action can take place.

2.  Facilitate Dialogue and Build Relationships Without Promising to “Resolve” Anything.  Provoke a change in how the parties are treating each other, without tying that activity to any expectation of “settling” the dispute.  That particular poster could be located somewhere other than that particular employee’s cubicle.  A poster could be created stating “I’m an Evangelical Christian and I work at XYZ.”  Help the parties to develop new ways to deal with people who hold values different from their own.

3.  Appeal to Over-Arching, Shared Values.  Both the gay rights group and the opposing organization ascribe to nonviolence.  Both believe in equal rights to be heard in public fora.  Work around the “presenting” value that divides them, and identify other values that are shared.  Because both believe in free speech, they might be interested in collaborating to create guidelines that assure the persistence of that value.

4.  Confront Core Value Differences Directly.  All people hold values, but not all values are immutable in every context.  Seeking reconciliation is not the same as seeking settlement or compromise; it is seeking ways to honestly recognize our differences and continue to live with each other.

This last concept was inspiring.  Susskind is urging us to depart from reliance upon interest-based models when the nature of the conflict calls for us to do so.  And, to him, current heated conflicts surrounding health care, climate change, abortion and other immediate social challenges urgently call for it.  Value differences can be “resolved” only by parties’ agreeing to reconcile — not agreeing to to compromise. 

Conversations leading to reconciliation can be mediated, and indeed often are mediated, and perhaps need to be mediated.  But the mediators who engage in such a process must embrace a different model and guide participants toward a different outcome than those with which we may be familiar.

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