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ADR Practice Beliefs: Finite and Infinite Peacemaking

Thank you – Shirli Kirschner, Air New Zealand, Gerald Raftesath, Cindy Last – and all of the other committee members and conference planners (Lawyers Engaged in ADR (LEADR) Annual Conference, Sydney Australia, July 2000) who have made my participation in this conference a reality.

It is a singular honor – and a thrill – to have the opportunity to address this audience, in this country, at this point in my career, and at this time of the new millennium.

With the brief period I have this morning to share some ideas with you, I will be seeking to stimulate your thinking in such a way that you may carry some of these notions with you as you attend the workshops today and tomorrow, and perhaps, as you continue to be involved in this field of practice we call ADR.

The best way to do that, I believe, is to share some ideas that I am thinking about at present – that seem to stir a good deal of passion in me – and that I hope will stir your interest as well. These ideas are:

That beliefs and values, often unspoken, underlie our respective ADR practices.

And, that what we believe about…

    • Ourselves as instruments of conflict resolution,

    • The ADR processes we employ, and

    • Our clients’ capabilities to reconcile their differences…

Affect to one degree or another, whether…

    • The immediate resolution effort is successful,

    • WE are regarded as competent and useful,

    • The disputants feel an increased level of conflict management competence, and

    • The ADR process used gains increased acceptability and wider use.

By engaging in dialogue about our practice beliefs and values, I believe that we can heighten our consciousness about how they drive our ADR practice.

By becoming more conscious, we can then become most intentional and accountable for the manner in which we INFLUENCE the conflict competence in our client systems.

I have selected several ADR leaders to shed some light on different aspects of this question:

Canadian Chief Justice Betty McLaughlin spoke of justice in the 21st Century during the Canadian Network Conference last month in Vancouver, British Columbia – and stated that the role of law in society is to create order. She noted also that a measure of a society is how peacefully and productively they resolve disputes. And, that law PROVIDES ANSWERS – about guilt, fault, and remedies – and those answers, which are best, are the ones, which promote prosperity and smooth transitions, among other goals. In addition, she stated that dispute resolution focuses on the PROCESS for getting to an answer. In regard to social harmony, Justice McLaughlin felt that what is required of a process is the reconciliation of harm – requiring the expression of feelings of anger and loss. A process, which assists in providing answers with respect to social harmony, must provide opportunities for listening and giving respect. She felt that ADR answers at least the cost and harm to the relationship needs for social justice – but emphasized that the search is not over…that we need to search for greater ways to encourage the parties in a relationship to live together. She concluded her observations with the following challenge: that the role of law, and ultimately of justice in society, is to provide not only the right answer, but also the right process – healing, debate, decisions – so that a society can be considered just, prosperous and empowered!

A second leader of note is Bernard Mayer, who has many significant observations to make about our practice beliefs in his new book, The Dynamics of Conflict Resolution. He states, “Conflict resolution still has the twin thrusts of a service to people who need assistance and a force for social change, but it is easy to lose sight of them in the business of building a respected field of practice. He believes that we have become distracted by what he calls the rhetoric surrounding mediation styles (transformative versus evaluative) – that is, distracted from what he believes this work continues to be about – helping people keep control of their lives, even when in crisis, and creating more powerful and democratic ways of dealing with important questions of social justice and peace. He urges the retention of a clear view of the core values of our work even as we deepen the field’s foundation and institutional structure. He also notes that at the heart of effective resolution is a set of constructive attitudes and good communication skills. Repeatedly, he says, he has found that our attitude towards conflict and communication determine the effectiveness of what we do…and the ART of conflict resolution lies in discovering the level at which a conflict is really operative and the CHALLENGE is finding a way of working at that level. He observes that conflict resolution works best and operates most in keeping with its values when it helps people to solve their own conflicts in a collaborative, powerful, and just way.

Finding the “right process” and the “right attitude”, if you will, are at the core of my remarks this morning. An author who has framed this for me in a simple but profound way is James P. Carse, in his little book entitled “Finite and Infinite Games – A Vision of Life as Play and Possibility.” In this book, Carse observes that,

There are a least two kinds of games. One could be

called finite, the other infinite. A finite game is played for the purpose of winning, an infinite game for the purpose of continuing the play…If a finite game is to be won by someone, it must come to a definite end. It will come to an end when someone has won…Infinite players cannot say when their game began, nor do they care…(for) the only purpose of the game is to prevent it from coming to an end, to keep everyone in play…(and) infinite players play best when they become least necessary to the continuation of play… (pps. 3 and 32)

I believe that Carse’s notions about finite and infinite play, Justice McLaughlin’s concern about finding the right process as well as the right answers, and Bernard Mayer’s concerns for the right “attitude” about ADR practice are all linked. The linkage is in part the way we frame our work as ADR practitioners – are we focused on ending the dispute through settlement discussions and negotiation, or are we also concerned about whether the resolution is lastingly supported by the disputants? Do we disregard the need for closure in the interest of continually uncovering the disputants’ interests, needs, and fears? Are we guided by the belief that we must allow the disputants’ maximum control over the process used and the outcomes achieved so that they may be more capable of handling future disagreement as a result of their ADR experience or have we learned that they want us to tell them what to do? Are we motivated by our own needs for closure and settlement, disregarding the potential for enhanced communication, information and understanding between the disputants regardless of whether the dispute settles or not? Do we need to believe that we settle the dispute or design the system rather than the parties to it – and operate our practice accordingly?

I know that this list of questions stirs some juices in all of us – and believe that the challenge here is the trap of “either/or” thinking – a framework that polarizes (and can paralyze) us as practitioners – and as conflict competent societies. Let me say right at this point that I strongly believe that we need to honor BOTH “finite” and “infinite” approaches to ADR practice. Each approach is crucial to best practice in ADR for I am quite certain that rights-based approaches leverage the use of interest-based processes – and many interest-based applications to disputes would never have been attempted without the existence of rights-based backups.

I would like to encourage a different focus instead – one of becoming ever more consciously aware of our own particular preference, skill and capability within any of these frameworks; tolerant of the gifts and capabilities given to the search for the right answer, the right process, and the right attitude by other practitioners, including the advocates; and collaborative in learning from each other as practitioners to create seamless continuums of useful conflict management processes which foster just, lasting and empowering resolutions.

In this regard, I am reminded of a story that has assisted me enormously in re-framing the challenge that my labor and management parties have faced when attempting to change their joint relationship from adversarial – win/lose – to more collaborative – win/win. It comes from Alfie Cohen’s book, No Contest. The Canadian elementary school teachers became concerned at the beginning of the ‘90’s with the fact that the games they were teaching the children were not preparing them to live in a world requiring ever greater cooperation in the face of declining resources. So, they decided to redesign some of their games. The one that I am aware of is the game of musical chairs. We all know how that is played? 25 kids, 25 chairs, and the music plays…a chair is removed…and when the music stops, the 25 kids have to get on the 24 chairs…and one kid is “out.” And so it goes, until most of the kids are in a corner over there, and there are two kids circling the last chair…and one of them “wins.” What is the message of this game…that you may have played as well? Given that competitive message…how would you redesign the game to change the message (and the kids’ experience) to one where collaboration was the message, even in the face of declining resources (the chairs)? Give up? Well, here is how the Canadian teachers changed the game – they changed the “rules of the game” as follows: there are still 25 kids, 25 chairs, music playing, and one chair removed during each musical interlude…but the objective of the game now has become that the 25 kids have to get on the remaining 24 chairs…the 20 chairs…the 14 chairs…the 6 chairs, etc., so that in the end you have 25 kids trying to get on one chair! What does the room sound like as the kids are playing this new game and what are they doing…and what is the message that the kids learn from this game? Can you imagine the diversity of ADR practitioners working together as these children are playing – with humor, urgency, excitement, generosity and helping each other be successful? What rules of our game would need to change?

If we are focused on a search for the right answer, the right process, and the right attitude – I believe that our practice of ADR changes to one of seeking rather than one of staying in the same place. By being forced to adopt a searching and seeking attitude, I have journeyed to some very different places in my practice than I ever envisioned nearly 30 years ago. I have found that the clients present us with great challenges to existing processes – which can compel us to seek a different process that might be a better “fit” with the presenting problem. What this has required of me, as a practitioner, is to be open to new ideas or possibilities and to be willing to take risks in using processes that I cannot guarantee will achieve the desired result. And, in order to find the new processes, I have sought out and spoken with practitioners from fields besides the dispute resolution field in order to seek, uncover, or test process ideas that I believe might work on a given dispute. With successes and failures of these “experiments,” I have integrated what I have learned into the continued evolution of my ADR practice – including a network of a great variety of practitioners from different fields of practice, including communications, organization development, and group dynamics.

Let me share just a two stories to illustrate this type of searching ADR practice – stories which share a bit about my evolution as an ADR practitioner and which may encourage and support your own search for “right answers, processes, and attitudes.”

When I was a federal mediator during the latter half of the ‘70’s and all through the ‘80’s, I was assigned the “non-traditional” cases as well as the traditional ones. That meant that I mediated industrial manufacturing disputes as well as service sector ones. The tougher disputes in this caseload were those in the service sector – where women and minority group negotiators were coming to the table for the first time and were demanding recognition and asserting identity-based requirements of the negotiations as well as the usual wages, hours and working condition demands. One of my challenges was the frequent insistence by the progressive unions that the entire mediation process be “transparent” to the union bargaining team and that no caucuses be allowed. Further, the union bargaining teams that I had to deal with usually numbered between 35 and 50 souls! My challenge as an ADR practitioner was not to be intimidated by this new dynamic and to find a way to handle a transparent process and a huge bargaining team. I developed a technique which I called “megaphone mediation” in which I became used to getting on a microphone and explaining the mediation process to a ballroom full of union bargainers and then assisted the negotiations through a microphone process all the way from issue clarification to proposal and settlement testing. The practitioners who supported my work in this manner were not my federal mediator colleagues – who told me to just tell the union rep to get it down to a manageable number – but were the mediators from the Community Relations Service of the U.S. Justice Department. They let me know that by accepting and working with this huge change in the bargaining dynamic, I would be recognizing and empowering the minority representatives at the table – and thus, could expect a greater level of cooperation to seek a peaceful solution rather than resistance to the mediation process – and thus avoiding a potentially violent strike.

My second story takes place years later – in the late 90’s – when a national organization asked for my assistance in resolving a 50-year old dispute, which was threatening the viability of the organization itself. The executive committee that I dealt with informed me, however, that I would have to work with a group of 103 participants in order to resolve the dispute. The dispute was something like our war between the states and there were 2 critical representatives from every state in the union (50). I designed the process with the executive committee and it wound up looking a bit like Dannemiller-Tyson’s large group process (max-mix, timed report-outs, facilitators at each table, blank transparencies instead of flipchart sheets) and an interest-based problem solving session. I was on the microphone again…and over the course of a 3-hour session, we agreed to the issues and the process…and over a 2-day meeting, we identified and agreed to the issues, interests, and options for resolution of the dispute. At that point, the body was willing to designate a 21-person bargaining team to take the large group’s product and to distill a consensus recommendation, which the large group would accept or reject. Ultimately, the 21-person group reached consensus in three days and their recommendation was accepted by the body in another 3-hour session (with the use of an amazing graphic). In this effort, I could not have proceeded without the advice and assistance of some of the leaders in the organization development field – Marv Weisbord, in particular – for their deep understanding of large group dynamics and the processes which assist in consensus-building with such groups. And, would not have known of the journey to community without Bill Ury’s help.

I hope that these two stories help to illustrate the “stretch” that we often have to make as ADR practitioners – to search for and use the “right process” in order to assist diverse disputants in finding the “right answer” to resolve their conflict. For me, this constantly evolving search is the challenge of the ADR field and its excitement as well. This is the attitude that keeps us as ADR practitioners in step with the evolution of our societies in managing differences. I have often experienced the beginning point of such searches for the “right process” as a need to SUSPEND MY OWN DISBELIEF about whether a given process will work in a new environment.

I have emphasized here the impact that ADR practice beliefs have on our clients, our field, and ourselves. Bill Ury, in his latest book, Getting to Peace, speaks about his concern for the human tribe because of the abiding level of conflict around the world. Bill clearly believes that one of the missing pieces in changing the global culture of conflict is to have MORE HOPE that disputes CAN be resolved by the disputants and conflicted relationships CAN be healed – and that this generally held “dis-belief” that anything can be done about difficult and deeply embedded conflict needs to be suspended. A strong message that we receive from Getting to Peace is that we need first to have more hope and second, more broadly held conflict intervention skills among societal members.

The opportunity that you have in front of you for the next two days is to explore within this amazing array of state-of-the-art workshops and workshop leaders these questions of the right answer, the right process and the right attitude – and to engage in a collaborative connection with each other to share ideas, experiences, challenges, and hopes for the future of ADR practice at the time of the new millennium – to ensure that the needs of the finite AND the infinite in peacemaking are met.

The speech has been made available for electronic publication by Lawyers Engaged in ADR (LEADR).


Christina S. Merchant

Christina Merchant, a highly experienced dispute resolution professional, is most widely known for her work in fostering sustainable partnerships between labor and management throughout the private, public, and international arenas. She entered private practice as a dispute resolution consultant after 29 years as a mediator, facilitator, dispute systems designer, and… MORE >

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