“[Partisan demagoguery] agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which finds a facilitated access to the government itself through the channels of party passions.”
“Elections belong to the people. It’s their decision. If they decide to turn their backs to the fire and burn their behinds, then they will just have to sit on their blisters.”
“[T]he law is not an instrument to find out the truth. It is there to create a fiction that will help us move past atrocious acts and face our future. It seems there is no mercy in this world, but a kind of haphazard justice: men pay for crimes, but not necessarily their own.”
Following the “insurrection,” “putsch,” or “attempted coup” in Washington D.C., on January 6, 2021, and the subsequent acquittal of President Trump on impeachment charges, we find ourselves facing extremely significant and difficult, yet very different political conflicts and challenges from those we faced before.
Because the attempted takeover of the U. S. government was not successful, but could have been; because the threat it represents is on-going and likely to recur; because it stimulated intense political passions and reinforced the use of deeply flawed, emotionally charged language to describe political opponents who are also fellow citizens; because it went to the heart of our moral, social, economic, and political character; and because it substantially weakened the core principles of our democracy, it is essential that we not just “forgive and forget,” and swiftly move on to more immediate concerns, but stop for a moment and consider carefully how we should respond, and what, if anything, our experience as mediators resolving adversarial disputes in diverse settings over several decades can teach us about how we might de-escalate, settle, resolve, and prevent highly polarized political conflicts.
These events reveal, on the one hand, how fragile our democracy is; and on the other, how potentially robust it is – and how important it is for us to find less adversarial and more collaborative methods for resolving political disputes. It is important for us to understand the costs of escalating rhetoric and false polarization, and learn how to talk – not at, or even to, but with each other; and to listen – not superficially or defensively, or only to insults and falsehoods, but empathetically and collaboratively, to commonalities, perceptions, feelings, life experiences, passions, and a broad range of subtle, complex, paradoxical truths that underlie our political conflicts – and to do so without asking people to sacrifice, abandon, or devalue their values or understandings of the world, their attitudes toward themselves and others; or their passionately held principles and beliefs.
To begin, it is important that we recognize the rapid growth of white supremacist, neo-fascist, conspiratorial hate groups in the US, and that they nearly succeeded in overturning democracy, the rule of law, and electoral fairness in a single stroke. We now know that a few minutes, a few feet, a few police officers, a handful of federal or state officials one way or the other could easily have produced a very different outcome.
Certainly if a strong, capable military leader had centrally coordinated the efforts of white supremacists, Proud Boys, 3 Percenters, and others; if they had arrested or assassinated members of Congress; or seized the Electoral College ballots; or exploded the pipe bombs they had planted, or created any number of violent pretexts for declaring martial law and blamed them on antifa — any of these acts could have been enough to shift the U.S. from electoral democracy to electoral dictatorship, from egalitarian diversity to white domination, from majority to minority rule, from reliance on law and facts to reliance on force and fraud. The realization that they could actually have destroyed democracy raises important questions, including:
Before even beginning to consider these questions, it is necessary to concede that crimes have been committed, violence has been threatened and perpetrated, and lives have been lost on both sides. Constitutional processes have been abrogated, offices have been invaded, important papers have been stolen, and efforts have been made to overturn a fair and lawful election. These require a legal response, as without one, and in the absence of a collaborative replacement, we implicitly give permission for them to happen again.
Legal procedures were largely invented to discourage demagogues and tyrants by substituting rights-based formally “neutral” laws and adjudications for power-based entirely subjective dictations and fiats. Yet legal forms of conflict resolution nearly always fall short because they are objective, superficial, ceremonial, and oriented to compliance, and as a result, are not often successful in reaching people emotionally, attitudinally, or deeply, and rarely change their hearts or minds. Only interest-based methods do not require win/lose outcomes, and invite opposing parties to open their hearts and minds to each other and search together for better, deeper, more creative and mutually acceptable solutions.
These processes differ, of course, but there is no obvious reason why we cannot, as is common in litigated cases, adjudicate and mediate at the same time. To do so, we need to better understand the differences between power, rights, and interests, and think more deeply about insurrection and political conflict from a dispute resolution point of view. We need to reveal the connections between political conflicts and the rise of demagoguery and dictatorship, and design ways of preventing and resolving destructive political disputes by strengthening everyone’s skills and capacities in democracy, collaboration, and mediation.
The difficulties, of course, lie in how we create the option of choosing one path over another, and in the details of how we go about discussing and resolving our differences. They lie in the complexity of separating free speech and legitimate political advocacy from the incitement to violent and aggressive actions that are aimed at abolishing democratic rights, or denying them to others altogether. Here, it is worth remembering, as Chief Justice Oliver Wendell Holmes explained, that it is not ”shouting ‘Fire’” that is beyond the protection of the First amendment, but “falsely” shouting “Fire” in a crowded theatre, and thereby causing a panic.
But what do we do when the fire seems to many to be real, or is believed to be real by a large number of voters — often because they were told it was real by demagogic leaders who knew it wasn’t, yet promoted the false idea that it was for their own personal political ends? What would the appropriate democratic response be to an authoritarian, dictatorial takeover of government; to systematic suspension of the Constitutional right to vote; to the actual theft of an election?
One answer is insurrection. If the election had been successfully stolen by Q-Anon, Proud Boys, 3 Percenters, and others, would not Biden voters have believed themselves justified in using “extra-electoral” mass-insurgency tactics against the forcible installation of a second Trump presidency, as nearly all of us believe such actions would have been justified against Hitler?
In other words, the problem is not that there was a mass demonstration seeking to compel government officials to recognize the electoral will of the people, but that extra-electoral, insurrectionary means were used to hijack a legitimate election, prevent the will of a majority of the people from being recognized, and undermine popular democracy by repudiating and potentially dismantling it.
During World War II, Albert Camus advocated insurrection as a legitimate form of opposition to the rule of fascists and a direct expression of democracy, writing: “What is an insurrection? It is the people in arms. Who are the people? They are those in a nation who will never be made to kneel.” Demagogues, dictators, and tyrants throughout history have routinely risen and held on to power through the use of violence and hatred, turning one group against another in order to divide and conquer, dominate and control, exploit and oppress; and by overturning elections and triggering insurrections in response. As Joseph Stalin cynically observed, “It is enough that the people know there was an election. The people who cast the votes decide nothing. The people who count the votes decide everything.”
“Insurrection” is, of course, a label that has not only legal, but moral, political, and emotional meanings. The danger of labeling one’s opponents in any conflict, especially political conflict, is that doing so generates stereotypes that encourage assumptions of evil, undermine democracy, obstruct dialogue, turn animosity in a circle, replicate enmity and hatred, and reproduce chronic, engrained, unending conflicts, and moral justifications for exclusion and violence.
Yet it is critical to the life and vitality of any democracy that it not prevent the expression of dissent and diverse political views, even extreme ones, or regard polarizations and passions as problematic, but instead ask questions that draw adversaries into dialogue, collaborative negotiation, social problem solving, and mediation, all of which invite them to participate in democratic processes and relationships that recognize and seek to satisfy everyone’s legitimate interests, acknowledge and respond constructively to each other’s emotions, and work together for the common good.
To achieve these ends, we need to think carefully about how to define the problem. For instance, while many journalists and politicians continue to characterize the problem as one of “populism,” this term conceals an anti-democratic bias by implying that popular participation in politics and electoral passions are inherently dangerous and ought to be discouraged or prevented. Blame is thereby placed on citizens, rather than on demagogic politicians who routinely lie to, manipulate, and take advantage of them in order to win office.
Labeling those who act outside the political consensus as “populist” reflects a fear of social movements and genuine political change, and encourages a distrust of democracy. An alternative approach would focus on the use of dishonest and manipulative propaganda by demagogues and would-be tyrants, discourage corruption and dishonesty within the political system, and design dispute resolution systems that actively seek to reduce and prevent hatred and violence, while at the same time promoting direct citizen participation in political activity.
Populism naturally assumes different forms, and will express itself more violently in power-based political systems; more litigiously in rights-based systems; and more collaboratively in interest-based systems, where constructive channels can be designed and widely used to encourage popular participation in facilitated problem definition, analysis, debate, dialogue, brainstorming, consensus building, negotiation, mediation, voting, action planning, and implementation.
As mediators, it is important for us to consider how we might bring a range of methods to bear on political conflicts, in an effort – not to deny, water down, or compromise genuine differences, or even to simply acknowledge that they exist, but at a deeper level, to reveal their origins in “things” rather than “people” – i.e., in disruptive technological and environmental changes; intensifying global challenges to increasingly outdated and dysfunctional social, economic, and political systems; and a growing need for innovative, collaborative, interest-based methods for preventing, resolving, moving through, transforming, transcending, and evolving beyond the chronic sources of political conflicts.
In these ways, mediative methodologies encourage democracy itself to advance, improve, and evolve beyond adversarial power- and rights-based forms by introducing collaborative, interest-based, “omni-partial” techniques, such as informal problem solving, consensus building, teamwork, collaborative negotiation, dialogue, non-violent communication, restorative justice, circles, and mediation, all of which combine objective and subjective, substantive and procedural, mind and heart, as approaches to achieving outcomes that are not unavoidably win/lose, thereby strengthening empathy, direct participation, solidarity, and authentic agreement.
Indeed, it is possible to use mediative methodologies, such as “conflict resolution systems design,” to identify the systemic elements that generate chronic political conflicts and imagine interest-based alternatives that invite dialogue and strengthen large group multi-party consensus building processes. For example, it is possible for mediators, dialogue facilitators, conflict coaches, and others to convene and work with groups of political adversaries to:
In addition, conflict resolution professionals can design, organize, and facilitate multi-track dialogues, joint factual investigations, “exploratory exchanges,” and “courageous conversations” between political adversaries regarding issues, for example, such as whether the 2020 election was in fact stolen, or how to address highly contested time-dependent issues, like responses to Covid 19. These dialogues can easily be designed in ways that encourage mass participation in practical political decision-making, and not just voting for candidates, but reaching consensus on policies, legislation, and proposals for action.
It is even possible to design dialogues that draw proponents of the most fantastic conspiracy theories and paranoid imaginings into open conversation, and encourage joint participation in factual scrutiny and a mutual search for falsifiability, through a sometimes meticulous, painstaking process of asking questions, discussing, investigating, experimenting, and exploring alternatives.
In spite of the potential impact of these ideas and proposals, it is likely that global social, economic, political, and environmental conflicts will continue to escalate, polarizing political factions, and demanding that we choose between dramatically different futures and outcomes. The most urgent and pressing of these conflicts concern access to vaccines and health care, global warming and environmental destruction, migration and poverty, nuclear proliferation and brinksmanship, war and famine, and many others.
Alongside and beneath these pressing conflicts lie deeper issues, including the continued domination of countries in the South by those in the North; dismantling the systemic sources of bias and intolerance; mitigating the destructive impact of vast disparities of wealth; overcoming limited access to medical care, food, and water; agreeing on the proper role of police and military forces; assessing the continued viability of globally unregulated capitalism; the social impact of innovative technologies, and many others that urgently require our long-term global cooperation.
Clearly, the underlying political conflicts that make it difficult for us to solve these problems are not going to disappear, and intensely adversarial political conflicts are guaranteed to re-emerge rapidly, and on a national scale, at least by the 2024 presidential election — especially if Kamala Harris chooses to run for President, and Donald Trump decides to do the same. The electorate and the Senate are now nearly evenly divided between Democrats and Republicans, with millions of voters suspicious and distrustful of each other, and few signs of any willingness to work, or even talk, to one another.
Yet, for this very reason, the need for people who are skilled in a broad range of dispute resolution techniques and processes has never been greater. Most importantly, the skills that are required to strengthen collaborative, democratic, and mediative political problem solving are exactly those that conflict resolution professionals practice successfully, on a smaller scale, every day.
Every political conflict encourages us to pick sides and choose between alternate universes, which increasingly narrow down to options of either/or, yes or no, this or that, him or her, left or right, party A or party B, forward or backward. Yet in making these choices, we collapse complex, nuanced, multi-dimensional, analog problems into simplistic, flattened, lower dimensional, digital choices that seem to require adversarial, win/lose outcomes. Worse, they force us to choose between selfishness and sharing, competition and collaboration, looking out for ourselves and caring for others, when it is actually possible for us to do both.
Political conflicts ask us to add our weight and energy, our hearts and minds, bodies and brains to bring about the future we want; but they do so by seemingly requiring us to fight for our future over and against the futures of others, so that our victory automatically spells their defeat. Yet it is possible for us to decide instead to unite with each other and face our common problems; to engage in dialogue with those who desire different futures, and synthesize our best ideas; to discover the deeper reasons for polarization in the multi-faceted complexity and subtlety of our problems; to recognize that all conflicts conceal underlying truths; and to agree that we will do our very best to make sure we leave no one behind.
If we are to turn democracy and political conflict in a more collaborative, interest-based, problem solving direction, we will require higher order skills, processes, forms of communication, and relational capacities. These, in turn, will require a greater appreciation for diversity, dissent, and doubt; a higher tolerance for ambiguity, complexity, subtlety, and transparency; and an expanded competence in collaboration, dialogue, consensus building, and mediation, which will allow us to invite citizens of all cultures, beliefs, and backgrounds to join one another in solving common problems without over-simplifying or blaming them on each other. All of this is possible, and it is already being done, every day, in the small-scale work of conflict resolution practitioners.
Because of what took place on January 6, and the passion and intensity of the political conflicts that led to it, we can now understand what is at stake, and we do not have long to prepare for 2022 and 2024. We have listened, watched, read, argued, and voted, and thereby brought the official, customary, traditional electoral process to a close. Yet it is only now that real politics can begin, and that genuine democracy can become possible — perhaps in ways that will allow us, as mediators, to elicit and help shape the conversations and interactions that lay the foundations for the kind of world that we, our children, and our grandchildren’s grandchildren will want to live in.
Whatever we do, whichever path we take, our actions and inactions shape the unseen channels through which our political futures, and those of succeeding generations, will flow. Through our willingness to apply our skills, and aid even our opponents in collaborating and solving their problems, we can help design and create the processes and relationships, cultures and contexts, systems and environments, that will be needed for all of us to survive, and not sink into brutal, violent, senseless, and barbaric conflicts.
Each of us can offer hope, or withhold it. We can face our problems together, or grapple with them alone. We can open our hearts, or shut them to one another. Every day, whether we intend to or not, we create a path forward. We impact and participate in political conflicts. We act as citizens. We vote. So let’s vote for a less hostile, violent, and adversarial world. Let’s vote for dialogue, problem solving, and conflict resolution. The time is short, and every day, every act, every vote counts. Especially yours.
One of the very best of the ADR blogs is International Dispute Negotiation, a high-quality podcast series hosted by Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil &...By Diane J. Levin