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Negotiating with Feeling One More Time

By Victoria Pynchon

It's always an honor to be asked to talk to law students about mediation as I was this week.  It's a pleasure to help them master the skills necessary to serve as mediators in the downtown Los Angeles civil harassment department.

The students put me in mind of an e-Discovery Dystopia (see, The Horror, The Horror) where we'll be using artificial intelligence to 'handle' the facts and lawyers to apply 'the law' to them.  Why?  Because after a year and a half of law school they were already busily suppressing and avoiding conflict, pushing back against the parties' attempts to tell the conflict story that made one or both of them seek a civil restraining order, subtly coercing them to 'move past' the past and 'focus' on the future.  Because the students' 'purpose' in the Los Angeles Superior Court is to help the Judge avoid making a decision, their efforts were focused on achieving an a restraining agreement rather than a restraining order or, alternatively, negotiating an agreement that included a stipulated restraining order.

The students did attempt to negotiate a 'deal' that would resolve disputes not within the Court's jurisdiction (loans of money; theft; a dispute over the terms of one party's sub-tenancy; and, recompense for the physical violence at the heart of the request for the restraining order).  Their efforts to do so were, however, were repeatedly derailed by the parties' attempt to justify their own behavior; and, blame the other for causing the losses sustained.

 Unable to quickly obtain compliance with her request that the parties 'put the past behind them' and 'move forward' by 'making a deal' to 'avoid losing in Court,' the student mediator suggested that the remainder of the mediation proceed in separate caucus.  When the first separate caucus ends with one party making a 'demand' that is better than he actually wants to achieve so that he'll have 'bargaining room,' I interrupt the session; bring the other party in from out of the cold and ask the student mediator what she is trying to achieve.

 

Mediator  'I'm trying to help them negotiate an agreement.'

Me:   'Did you think it was necessary to separate the parties to help them reach an agreement?' 

Mediator: 'Yes.'

Me:  'Why?'

Mediator:   Because they're too emotional to think clearly.  We've been told to get the parties to put the past behind them and instead focus on the future.'

Me (to Respondent): 'Are you able to discuss the resolution of this dispute unaffected by the past?'

Respondent:  'No.' 

Me:    'Why?'

Respondent:     'Because I'm right and he's lying.' 

Me (to Mediator):   'Do you think you can help Respondent resolve this issue in separate caucus?'

Mediator:    'I don't know.'

Me (to Petitioner):   'Do you think you can resolve the dispute you have with Respondent without referring to the past?'

Petitioner:   'No way.  You've seen just now what a liar he is; and I had to pay doctors for injuries he caused when he attacked me.  I'm thinking of hiring a lawyer to sue him . . . .'

Me (to parties):  'Is the past interfering with your ability to resolve these issues here and now in the present?

The  Parties:  'Yes.

 

I tell the students that the word 'counselor' is not simply an honorific; that it is descriptive of their job as lawyers – to counsel their clients on the many ways in which they might resolve their disputes with others – including litigation, arbitration, and mediation.  Though they won't be mediating legal disputes in the near future (other than as volunteers) they will be representing their clients in mediations and instructing them how to best utilize the skills of the mediator to resolve the dispute without litigation (or without more litigation).

 'But we're not trained to be counselors,' the students protest.  And they are, unfortunately, absolutely right.  A little more than a  year ago, however, before they first stepped foot in law school, they would have intuitively known how to handle this entirely human and extremely familiar situation.  Third graders in peer mediation tournaments display more facility at helping the parties take responsibility for the part they played in the dispute that brought them to mediation; open up rational lines of communication; encourage joint problem solving; and, reach agreement.  They do not, however, do so by urging their school mates to 'put the past behind them' and 'negotiate' a 'deal' to resolve their dispute. 

I take a few minutes to model effective joint session mediation (as we do when we teach for NITA) by: (1) reminding the parties they were once friends; (2) having them talk a little bit about how they became friends; (3) asking them to describe the first time they felt that friendship slipping away; (4) asking them, in retrospect, what each had contributed to the physical altercation at issue in the civil harassment proceeding at which they still might appear; and, (5) having acknowledged that each played a part in creating the problem, asking them whether they believe they might be able to jointly resolve it by engaging in a problem-solving discussion with the help of the mediator.  They (still somewhat reluctantly but also a bit sheepishly) said that they would make the effort even though they were still not optimistic about their ability to achieve resolution.

Then I turned the mediation back to the student mediator, who quickly obtained an admission from the Petitioner that, despite his earlier denials, he had borrowed $5,000 from the Respondent, only part of which he had paid back.  The parties were not nearing agreement, but were on the right track when time was called.

Afterwards, one of the student participants said to me, in genuinely shocked tones, that he had felt remorse even though it was only a hypothetical.  'How could that happen?' he asked.  'You lied about the money,' I responded,

‘and you will have a human response in a human communication even if you're only role playing.  We can't help it.  Humans are incapable of being unemotional.  The key to resolving emotional disagreements in mediation is for the mediator to help the parties lower the level of emotion to the point where the parties can discuss their differences rationally. Anger, anxiety, fear and the like interfere with our ability to think clearly.  We can't pretend not to feel an emotion in response to someone who has hurt, injured, or even simply disrespected us.  Nor can we 'get past it' by suppressing or avoiding it.  We can only 'get past it' by communicating with the person who caused us the harm, while at the same time taking responsibility for our part in how the dispute went down in the first place.

 What does this experience have to do with e-Discovery and artificial intelligence 'handling' the 'facts.'  First, there are no 'facts' – only differing subjective experiences of the same event or series of events which the parties may or may not be able to reconcile or harmonize.   If the parties continue to disagree about 'what happened' they are usually able to accept the possibility that the basis of their disagreement is miscommunication rather than the other's wrongful (even evil) intent.  All of which takes us back to the flawed notion that disputes involve 'facts' unmoored from 'feelings' that could be unearthed and organized by an algorithm to which lawyers would apply 'the law' which is divorced from the parties' desire for 'justice' – a fair result based upon a fair procedure.  

We do not have to imagine a sci-fi future to test the ability of present-day artificial intelligence (the Holy Algorithm) to 'get the facts right.'  All we need do is take a look at how the Holy Algorithm has done in achieving economic stability over the past few years.  As author Jaron Lanier wrote in You Are Not a Gadget (excerpted in Harpers February 2010 issue):

 In finance, the rise of computer-assisted hedge funds and similar operations has turned capitalism into a search engine.  You tend the engine in the computing cloud and it searches for money.  In the past, an investor had to be able to understand at least something about what an investment would actually accomplish.  No longer.  There are now so many layers of abstraction between the elite investor and actual events that he no longer has any concept of what is actually being done as a result of his investments.

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 The Facebook Kid and the Cloud Lord are serf and king of the new order.  In each case, human creativity and understanding are treated as worthless.  Instead, one trusts in the crowd, in the algorithms that remove the risks of creativity in ways too sophisticated for any mere person to understand.

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Personal reductionism has always been present in information systems.  You have to declare your status in reductive ways when you file a tax return.  Most people are aware of the difference between reality and database entries when they file taxes, yet you perform the same kind of self-reduction in order to create a profile on a social-networking site.  You fill in the data:  profession, relationship status, and location.  In this case digital reduction becomes a causal element, mediating between new friends with whom most information is exchanged online.  That is new.

The law is also 'personally reductive' – creating causes of action into which lawyers must first pick and choose the 'relevant' facts satisfying the 'elements' of the cause or count.  We fill in the data constituting the legal claim and the factual reduction becomes a causal element, determining which disputes can be legally resolved with an award of damages (or other legal remedy) and which cannot.  Mid-way through our law school studies, we have forgotten the difference between reality and this legal 'database entries,' the purpose of which is to eliminate emotion from the delivery of 'justice.'

No matter how 'abstract and impenetrable' we make our 'justice products'; no matter the effort we make to separate fictionally 'objective' 'facts' from hypothetically rational 'law,' we will never be able to 'separate the people from the problem.'  Nor, thankfully, will we escape that which most strongly unites us – our very fallible, subjective humanity.

So let's please teach our law students something about the psychology of conflict, particularly how it arises and how it might be profitably diminished rather than avoided or suppressed.  They will, after all, be toiling in the hot cauldron of conflict for the next thirty to forty years.  Their ability to 'handle' the 'facts,' suffused as they are with human emotion, will determine the success or failure of the legal project as well as the happiness and well-being of its practitioners.

 

Full post as published by Settle It Now Negotiation Blog on February 16, 2010 (boomark / email).