I will remember always the pride I felt the day I was sworn in as a member of the bar.
I was the first woman in my family to go to college, to get an advanced degree, and now, to become a lawyer. It was an important achievement for me and for my whole family.
It meant a great deal, this formal commitment to the courts and to the law that courts serve — to become a member of a profession dedicated to principles so lofty that when you speak their names out loud, you can hear the capital letters ring out:
Justice. Liberty. Equality. Rights.
Such is the romanticism of youth.
A week or so after the ceremony, something unexpected happened to crush my youthful idealism.
I can no longer remember what mission the partner who was supervising me had sent me on, but for the first time I walked into a courtroom as a lawyer. I wore a brand-new suit and carried a leather briefcase (also new). I walked past the gleaming wood rail that marked the area where the general public waited, entered the lawyers’ bullpen, and proudly sat down.
A few minutes later, two attorneys, men in their late sixties, approached my row, caught sight of me, and then glared at me. They stood for a moment, and I had the impression that they were about to ask me to move. Instead, they glanced meaningfully at each other and then sat down directly behind me.
They began whispering to each other, just loudly enough that I could hear every word. “It’s an outrage what’s happened to the legal profession. People these days evidently don’t know their place,” said one. “Looks like anyone can be a lawyer these days,” said the other, “they’ve certainly lowered the bar.” There was more along those lines.
Nothing in my law school career had prepared me for that. I had no idea what to do. I could feel my face burning. I felt sick to my stomach. And really, really angry. The attorney sitting next to me rolled his eyes in disgust. “Ignore it,” he whispered, “and don’t let it get to you. Dinosaurs like that are on their way out.”
I would pose a far more interesting question: what might that attire be concealing?
We mediators are keepers of secrets. People trust us with sensitive information. We know their vulnerabilities, their self-doubt, their long-nursed wrongs, their secretly nurtured hopes. We have seen the hiding places of the human heart.
Yet it’s not only mediators to whom confidences are trusted. Designer and corporate lawyer David Kimelberg is the creator of Inked Inc., a photography project and book exploring the intersection of corporate and alternative culture, in which professionals roll up their sleeves and reveal the tattoos beneath the pinstripes.
An online gallery of photos of lawyers, doctors, and other professionals shows us images of these individuals in work clothes as well as of the body art they keep hidden from their colleagues. (There are, alas, no mediators, in case you were wondering.) It provides a candid look at individuals straddling the line between the professional and the personal, the corporate and the countercultural, as they proclaim their individuality in a conventional world.
There is no greater insult in America today than “flip-flopper”, a label anyone with political ambitions is eager to avoid. It’s as if the act of changing one’s mind as the result of reasoned self-reflection is somehow as shameful, as, say, lying about sex with an intern, rather than a mark of maturity and character.
Certainly anyone who changes their views with the prevailing wind as a matter of political expediency deserves our condemnation, as do those who fail to keep their promises, both political and otherwise.
But as a mediator I have to ask, what’s so great about consistency anyway? If you’re going in the wrong direction, what’s the problem with heading in a better one? When exactly did it get to be a bad thing to change your mind?
When a politician changes his mind, he is a ‘flip-flopper.’ Politicians will do almost anything to disown the virtue — as some of us might see it — of flexibility. Margaret Thatcher said, “The lady is not for turning.” Tony Blair said, “I don’t have a reverse gear.” Leading Democratic Presidential candidates, whose original decision to vote in favour of invading Iraq had been based on information believed in good faith but now known to be false, still stand by their earlier error for fear of the dread accusation: ‘flip-flopper’. How very different is the world of science. Scientists actually gain kudos through changing their minds. If a scientist cannot come up with an example where he has changed his mind during his career, he is hidebound, rigid, inflexible, dogmatic! It is not really all that paradoxical, when you think about it further, that prestige in politics and science should push in opposite directions.
What about you? Are you ready to exercise your reverse gear? Or, like Blair, do you deny owning one?
One of the best blogs on cognition, behavior, and the mind sciences is The Situationist, which examines the implications of social psychology for law, policymaking, and legal theory. In honor of Martin Luther King Day, which is celebrated in the U.S. today, The Situationist has republished a post from 2007, “Martin Luther King, Jr.’s Situationism“.
Pointing to excerpts from the text of King’s “Letter from a Birmingham Jail“, this post makes the case that “Martin Luther King, Jr. was, among other things, a situationist“:
To be sure, King is most revered in some circles for quotations that are easily construed as dispositionist, such as: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” Taken alone, as it often is, that sentence seems to set a low bar. Indeed, some Americans contend that we’ve arrived at that promised land; after all, most of us (mostly incorrectly) imagine ourselves to be judging people based solely on their dispositions, choices, personalities, or, in short, their characters.
Putting King’s quotation in context, however, it becomes clear that his was largely a situationist message. He was encouraging us all to recognize the subtle and not-so-subtle situational forces that caused inequalities and to question (what John Jost calls) system-justifying ideologies that helped maintain those inequalities.
In reading King’s movingly written “Letter”, and The Situationist post, I would say that not only was King a situationist but a skilled master of negotiation and conflict resolution. Consider what King says about community and the mutual responsibility that flows from it:
Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial “outside agitator” idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.
Or this about negotiation and the need to confront issues and talk them through:
You may well ask: “Why direct action? Why sit-ins, marches and so forth? Isn’t negotiation a better path?” You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent-resister may sound rather shocking. But I must confess that I am not afraid of the word “tension.” I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half-truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood.
The purpose of our direct-action program is to create a situation so crisis-packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue.
Read King’s “Letter from a Birmingham Jail“. What messages does it hold for you, as a mediator, as a negotiator, as a resolver of disputes, or simply as a human being?
[Editor's note: In the blogosphere you have to move fast. I'd planned to get this completed and posted last night but instead elected to watch the Patriots vanquish the Jaguars on the road to the Super Bowl, a decision this Pats fan does not regret for one moment. Carrie Menkel-Meadow got here first, but I'm still weighing in with my own two cents.]
Authority wields an irresistible power, as Robert Cialdini recounts in the well-known classic, Influence: The Psychology of Persuasion. In Chapter 6, “Authority”, Cialdini describes a highly successful TV commercial for Sanka, a brand of decaffeinated coffee, in which actor Robert Young, known for playing a doctor on a popular 1970’s television drama, Marcus Welby, M.D., warns against the health risks caffeine poses and recommends Sanka to the viewing audience:
From the first time I saw it, the most intriguing feature for me in the Robert Young Sanka commercial was its ability to use the influence of the authority principle without ever providing a real authority. The appearance of authority was enough. This tells me something important about unthinking reactions to authority figures. When in a click, whirr mode, we are often as vulnerable to the symbols of authority as to the substance.
While today we make light of the phrase, “I’m not a doctor, but I play one on TV”, it nonetheless remains difficult for some of us to distinguish between the actor and the role, between apparent and real authority.
In all fairness to Clooney, who did not, as previous reports indicate, say, he would tell the WGA “you have to live with this and get over it”, Clooney at least does appear to appreciate that mediation is not an adversarial smackdown. Sources indicate rather that Clooney’s “stance has always been to find common ground and not alienate each other.” His heart’s in the right place.
Nonetheless, what bugs hell out of me as a mediator is how all too often people like the well-intentioned Clooney claim expertise to mediate disputes — as if mediation is a task that anyone can perform, rather than a professional service requiring training and preparation to master.
Learning to mediate is hard and demands commitment — as I hear often from the hundreds of people I have trained over the years to become mediators. At the end of every training I have taught, almost every participant — from the retired judges to the practicing lawyers to the social workers to the corporate executives — tells me that they anticipated learning to mediate would be easy — only to discover that there’s far more nuance, complexity, and skill involved than they ever anticipated.
Among the knowledge and skills that a professional mediator possesses at a minimum are:
an understanding of the dynamics of conflict;
the fundamentals of negotiation, including familiarity with both distributive and integrative bargaining;
techniques for facilitating joint problem solving;
communication skills, including effective listening and questioning skills;
techniques for addressing impasse and barriers to agreement;
and standards of practice and professional ethics
I do have a proposal for George Clooney and the other actors who have volunteered to mediate the WGA dispute. Come take a mediation training with me. Not only will you learn some great life skills, but you’ll come away with a better appreciation for the work that professional mediators like me perform. And who knows? If you ever get to play a mediator in a movie, you’ll be ready for the role.
This must surely apply to the dispute resolution field. Consider this:
Exhibit 1: Action.
Family lawyers in Massachusetts, including esteemed family mediation pioneer John Fiske, are currently working to replace references in state law to “custody” and “visitation” — words laden with negative associations for parents facing divorce — with the terms “parental rights and responsibilities” and “parenting plans” — language which is far less inflammatory and likely to provoke conflict. If Massachusetts takes this step, it will join other states like its neighbor New Hampshire which have already incorporated such changes into law. I have seen first-hand how destructive the traditional language can be and how much anxiety it arouses; those who work with families and couples in conflict as I have will no doubt welcome this change.
Exhibit 2: Equal and Opposite Reaction.
Every year I take the last week in December off and enjoy some of that time catching up on my reading. One of the books I added to my library is the tremendously entertaining pocket reference, William Drennan’s Advocacy Words: A Thesaurus. From the preface:
Effective word use is vital for anyone active in the law. For the attorney arguing a case or preparing a brief, for the jurist writing an opinion, even for the law student, words are the ammunition needed to make the point.
If you are a litigator, Advocacy Words can help you decimate opposing counsel’s position. If you are writing a brief, it can help you compose a convincing argument. If you are a jurist, it can help your opinions ring with the strength of your legal judgment. And if you are a law student, Advocacy Words can help you to hone your combative legal skills. Use the verbal dynamite in Advocacy Words to promote your position effectively. Let it be your companion in painting the verbal picture you want. Keep it handy to help you move others to your point of view.
The book is organized into two parts. Part one provides favorable words in one column with critical synonyms suggested in another; part two reverses it, with critical words in one column, with their favorable synonyms in the second.
For example, in part one, the critical “conspiracy, deal” are suggested substitutes for the favorable “agreement”; “confused, indecisive” for “considering alternative opinions”; and “manipulable, docile, meek, pliant, compliant, collaborative, toadying” for “cooperative”. Meanwhile, in part two, the favorable “frank exchange of ideas, frank discussion” is offered for the critical “argument”, and “flexible negotiator” for “soft-liner”.
Which countries are among the 20 happiest? They include Denmark in the #1 slot; Canada, #10; and New Zealand, #18. The U.S. ranks 23rd, while the U.K. is #41 and India #125.
A member of a group I’m working with to develop a logo and marketing slogan for court-connected dispute resolution services just sent us all a link to “The Art of the Dispute“, an American Express ad that’s been airing during the U.S. Open.
You can view either the commercial or a lengthier video clip. It’s a clever ad, regardless of what you may think about either McEnroe or American Express–and no matter what, it doesn’t hurt the mediation field that dispute resolution — with its promise of “less arguing” — gets placed squarely in front of the attention of the television-viewing public.
Educators and parents have long accepted the notion that introducing children to art fosters creativity, builds cultural literacy, and makes for well-rounded human beings.
They discovered that art teaches children key “studio habits of mind”, including persistence, expression, and the ability to make clear connections “between schoolwork and the world outside the classroom”–in other words, to see real-world applications for the lessons learned in class.
Researchers noticed something important at the very beginning:
The first thing we noticed was that visual arts students are trained to look, a task far more complex than one might think. Seeing is framed by expectation, and expectation often gets in the way of perceiving the world accurately. To take a simple example: When asked to draw a human face, most people will set the eyes near the top of the head. But this isn’t how a face is really proportioned, as students learn: our eyes divide the head nearly at the center line. … Observational drawing requires breaking away from stereotypes and seeing accurately and directly…Seeing clearly by looking past one’s preconceptions is central to a variety of professions, from medicine to law [emphasis added]. Naturalists must be able to tell one species from another; climatologists need to see atmospheric patterns in data as well as in clouds. Writers need keen observational skills too, as do doctors.
The authors conclude:
For students living in a rapidly changing world, the arts teach vital modes of seeing, imagining, inventing, and thinking. If our primary demand of students is that they recall established facts, the children we educate today will find themselves ill-equipped to deal with problems like global warming, terrorism, and pandemics.Those who have learned the lessons of the arts, however - how to see new patterns, how to learn from mistakes, and how to envision solutions - are the ones likely to come up with the novel answers needed most for the future.
How well did your own education prepare you to master those habits?
In impressing on their students the importance of acquiring negotiation skills, trainers will often say, “You may not realize it, but you’re always negotiating. It doesn’t matter whether you’re asking your boss for a raise or figuring out where to have dinner with your spouse. You’re negotiating, my friend.”
I know–I’ve said this to rooms full of people myself. Judging from the numerous heads nodding in agreement, many people accept this as true. However, I don’t think anyone ever acts as if they really believe it.
But what if in fact that were the case? What if you truly believed that everything–and I do mean everything– is open to negotiation?
Author Tom Chiarella decided to test this premise during the course of a three-month experiment. He writes about his experience in “Haggling for Hot Dogs“, an article that appears in Esquire. Lessons learned include “Never let them know how much you have to spend. Draw people into your life. Show your personality. Learn people’s names. Work your way up to the person who has a stake in the sale and the power to make a deal.” Also, don’t “think of money as the only thing…to offer. I found that trading favors proved relatively easy.”
Every once in awhile, if we are fortunate, we meet an individual that intuition tells us is destined for great things.
My friend Ashok Panikkar is one of those individuals. Ashok, who left Boston and returned to his native Bangalore two years ago, founded Meta-Culture, Bangalore’s first center for dialogue and conflict transformation. When I interviewed Ashok in July 2005, he described his goals for Meta-Culture:
Meta-Culture is in the process of creating India’s first integrated conflict management group. The vision is to help people develop skills of discourse that are non-adversarial and built around the principles of dialogue rather than debate (even though there are situations where, for instance, Socratic debate can play a very useful part in helping to clarify ideas and challenge the mind). In doing so we can change the climate and culture of discourse so that individuals, organizations and societies can respond to differences with understanding and skill instead of doing so from anger, ignorance, fear, animosity or misplaced righteousness.Our mission is to engage in or promote activities that can help advance this vision. To this end we are engaged in consulting, research and education in the areas of ADR, especially mediation; facilitation; coaching; design of conflict and dispute management systems; and consensus building. Right now our focus is to establish Meta-Culture as a sustainable consulting practice. Very soon we will be setting up a separate division that will service the NGO and governmental sectors.
Unsurprisingly, Meta-Culture today is thriving, keeping Ashok and his staff busy. One of its projects, Meta-Culture Dialogics, a non-profit trust, recently attracted the attention of India media.
The purpose of this project has been to promote dialogue among Hindu, Muslim, Christian and Buddhist groups to discuss matters of importance over the course of 10 sessions. These sessions were not designed to get people “holding hands and singing Kumbaya” in the hopes of simply sweeping differences under the rug, as Ashok told me in a recent phone call.
According to Ashok, who was interviewed by The Hindu, “We are not into preaching peace, tolerance and harmony. Instead, we provide a platform for communities to talk about what is bothering them the most about the other community” and to ask each other the hard questions to give issues the healthy airing that honest dialogue can produce.
Events like this only seem to confirm the worst suspicions that the American public harbors toward its legal system and the legal profession. The images on the five o’clock news tell the story: greedy plaintiffs, overreaching lawyers, justice in chaos.
This month’s issue of the American Association for Justice’s Law Reporter paints another picture. In a print article, “Family of slain journalist agrees to nonmonetary settlement with city to improve emergency services, ” it reports on the unexpected outcome of a lawsuit stemming from the death of a prominent journalist as the result of alleged deficiencies in the District of Columbia’s emergency services.
The family’s attorney observed, “I hope that the example set by the Rosenbaum family will prompt other attorneys to consider creative resolutions to cases where the focus shift from an entirely monetary settlement to a resolution that has a broader impact than just on the litigants in the case.”
Mediators of course will nod their heads in recognition–this is a story familiar to all of us. It’s too bad it’s not a story familiar to the public. Lawyers and mediators alike need to do a better job of telling these stories–stories which reveal the creativity and change that justice can produce.
Before kids become as scared of dispute resolution professionals as they are of clowns, I think it’s high time I stepped in to clear up a pernicious rumor buzzing among the elementary and preschool crowd.
I will remember always the pride I felt the day I was sworn in as a member of the bar.
At 
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