In Defense Of Conflict

Mediators like to call themselves peacemakers. A friend of mine, who mediates litigated cases, wrote an article about enlightenment and lasting peace, citing Eckhart Tolle (Power of Now, etc) and how some people have a hard time letting go of conflict. Psychotherapists also observe that patients often cling to their problems. Chris Hedges writes about the stickiness of conflict in ‘War Is The Force That Gives Us Meaning.’ But I wonder if one can really regard civil lawsuits as being about conflict at all, or mediating them as being about bringing peace into the room. It seems to me that lawsuits are essentially about adjusting interests, mostly financial interests. In mediating litigated cases we help shift money around the table, though clearly litigants often feel relief, especially if they win.

Most lawsuits yield to compromise because they are about risk assessment. Lawsuits for the most past are bargaining engines conducted with an eye to compromise. Although accurate risk assessment may be hard to achieve, it is nearly always attempted, and the tiny percentage of cases that go to trial are often a consequence of mistaken calculation by the losing party. In such clashes of interests, people pay attention to the money, but in a clash of fundamentals, people act as if they don’t even believe in death, as if they are immune to rational assessment and will accept incalculable risk. Perhaps this is not a pathological condition. Perhaps some conflicts are “necessary.”

Perhaps it is not that we need less conflict but that we need more energy. It is not just any conflict that we wish to end, but only particular conflicts that we don’t want anymore. We need an effective mechanism to choose our conflicts and avoid those we do not want. We want to be rescued but only sometimes. Conflicts are fine as long as we are winning. We generally approve of competition, yet competition is simply stylized and regulated conflict. Our society is organized around this principle. Who goes to a football game to watch them negotiate? Tolle and many others equate enlightenment with lasting peace, but for some lasting peace may not be an attractive goal. It may sound heavenly, but utopian writers have always had a hard time making heaven sound interesting, and seem to have clearly preferred hell with its grinding conflicts and faulty air-conditioning.

We love conflicts that require the hero to pass through the valley of death. Straw Dogs is an old Sam Peckinpah movie in which the young and depressed Dustin Hoffman, who really does not want to get involved, comes upon his wife, Susan George, getting raped by the leader of a gang. That is not enough to get Hoffman engaged, but when other gang members start invading his house, some sense of property outrage clicks in him. He kills the gang in creative ways, and feeling pretty good about himself, probably for the first time in his life, he says with a sense of deep satisfaction: “I killed them all.” He would probably have welcomed a mediator in the first half of the movie, but by the end he was on a roll.

The sweet science of boxing is pure expression of conflict. The great trainer and cutman, Whitey Bimstein, explained how the immortal Rocky Marciano knocked out Ezzard Charles in 1954 in Madison Square Garden, that cockpit of triumph and disaster: “Charles comes in in a good mental condition…but Rocky is coming in. It is very hard to think when you are getting your brains knocked out, so Charles withdraws to consider the situation. Meanwhile, Marciano is still coming. First thing Charles knows, he is grabbing, and then he is just trying to hang on. Why? He don’t know why. ‘It is not like football,’ Whitey said, kindly, like one trying to convey truth to little children, ‘Rocky never gives you the ball.’” I wonder if Charles afterwards was glad he climbed into the ring that night to get battered unconscious, or would he have preferred to negotiate settlement after the third round? I think not. He had taken on Rocky Marciano and lived to tell the tale? Isn’t that a great pleasure? Isn’t that why water coolers were invented?

Yes, parties avoid trial by settling, as an exercise in risk management and because, for the most part, it is only about adjusting the money. But we engage in conflict for more fundamental reasons, and the possibility of getting your ass kicked may be the admission ticket to the game of life. Life presents conflict while death presents lasting peace. The question is: what does it take to experience life before death?

We enjoy the vicarious conflicts we engage in as spectators, and the players love the conflict too, except when they break something. Then they want people to rush on to the field with stretchers; these people are mediators. Kids tilt at life and get into scrapes. They have to be extracted for a nap. Do they want lasting peace? I don’t think so. There will be plenty of time for that. What kids want is lasting excitement.

Mediators serve in the same capacity as stretcher-bearers, carrying people off the field when the game has become too much for them. What we would like is to pick and choose our conflicts, the ones where we end up as winners. But sometimes we meet Rocky, and he never gives us the ball. Then we get knocked silly and that is when we pray for a mediator.

It is not all about conflict. Consider this from Haiti about a store clerk pulled from the rubble eleven days after the recent earthquake: “Lt. Col. Christophe Renou, a rescuer with the French team, called the three-hour effort a miracle as he was briefly overcome with emotion. Other members of the team — assisted by American and Greek workers — were seen weeping with joy following the rescue.” What touched me was their wonderfully emotional reaction to the rescue of a complete stranger. What was he to them that they should weep for him? Some conflicts may be necessary, but this rescue effort was about something more vital – the sense that we are all in this together, which is the place where mediation supposedly punches its ticket. It is not a stark choice between competition and cooperation. Some conflicts may be necessary but cooperation is fundamental because it makes life possible.

                       

Charles B. Parselle

Admitted to practice law in California and England, Charles Parselle is a founding partner of Centers for Excellence in Dispute Resolution - CEDRS.COM - and a sought-after ADR professional. An experienced litigator, he enjoys the confidence of both plaintiff and defense bars as a gifted facilitator of dispute resolution. He… MORE >