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Kitsch, Camp, “Fairly Legal” And The Selling Of Mediation

Now, two weeks after the debut of much hyped television program, “Fairly Legal,” that has stirred a remarkable amount of buzz—at least among professional mediators— it might be a good time to consider the social and cultural significance and marketing value of such media events. The New York Dispute Resolution list serve was gorged with pro and con comments for 3 days straight and has similarly joined the clamor. There is reason to suspect that those of us who practice the conflict mediation craft are so starved for attention and recognition of our work, which still goes largely unnoticed or misconstrued by the public, that the mere utterance of the term, especially by a sexy TV celebrity cast as a mediator causes a flurry of twitters to flutter and dreams of a marketing breakthrough.

Whether this television program portends mediation’s big moment of acceptance as a legitimate method of solving disputes, however, remains an open question. Certainly, as the cultural and social landscape shifts to a younger generation, and the traditionalist professional thinking of the established disciplines that were initially resistant to mediation, and in more recent years, intent on co-opting the mediation craft as part of their own discipline, are beginning to give way. And, at the very least, some think the use of the term in the admittedly low culture world of television opens up a discussion about how to manage conflict in a complex world. Even if the understanding of mediation is corrupted, over simplified and contorted almost beyond recognition, how much worse could it be than what is often presented as mediation in grade schools, law schools, or courts over the last 20 years? Some purists—especially those that view mediation as the manifestation of an ideological movement— will cringe as much at the popular rendering of mediation in the cultural low rent district of television as much as they do with the corruption of the process by lawyers, therapists, or anyone else that does not follow their model. The mediation ideology requires for them that the process be a voluntary, consensual, collaborative, reasoned, and principled process practiced with the intention of bringing genuine peace to disputing parties and thereby transforming the nature of society.

Even my initial reaction to the television program was negative. I have dedicated the better part of my professional career to the disciplined study of conflict management, negotiation strategies and the mediation process, and this show seemed to be little more than a Daumier caricature. There is, of course, a certain measure of envy: why should a silly TV program garner more attention to mediation than all the reasoned and sensible arguments for its use? How dare a bunch of no-nothing writer’s script over-simplified scenes of mediation for a quick laugh without any regard for the layers of complex thinking any real conflict mediation requires.

There is little doubt that the place of mediation in the screenplay of Fairly Legal serves little purpose except to juxtapose the primary protagonist, Kate, played by Shari Shahi, a “former lawyer,” against the old guard legal system. She is, of course, as a smart, breezy, cocky, cute, and quick witted young woman, who is able to deliver pithy one-liners that put clients straight and instantly solve disputes in brief mediation sequences. Being a mediator is, however, more a convenient pretext than a substantive piece of her role. The show is, however, less about her work than it is the comedic intrigues, trials and tribulations she faces in her family, law firm, and romantic affairs. Her primary purpose is, as one critic noted, more about “making justice look totally sexy,” than dramatizing mediation practice.

All is not lost, however. While Fairly Legal is not far removed from an even more disturbing rendering of mediators and mediation, it is considerably better than Wedding Crashers (2005). In this movie, so terrible it is not even worthy of being called a film, the leads, Owen Wilson and Vince Vaughn, play a couple of ‘divorce mediators,’ who are in reality, committed womanizers who sneak into weddings to score by taking advantage of the “romantic tinge in the air.” Thankfully, it appears that calling them mediators was so thin and incidental to the premise of the movie that few viewer seem to even remember or paid much attention to that detail and did not make the negative association between mediators and other scoundrels. One could argue that with Fairly Legal, the rendering of mediation on the big or small screen is making some progress.

Setting aside my personal sensibilities as one of those mediation purists who is making some effort to do battle with his elitist tendencies, many have observed that any publicity is good publicity. In fact, I self chastised myself by recalling the comments of a favorite writer, Susan Sontag, in her definitive piece on just this topic some 50 years ago, “Notes on ‘Camp’.” Her article was one of the first in literary criticism to allow for and ascribe some validity and value to work that might not fit within the frame of high art and culture but were worthy of consideration nonetheless. She noted the dynamic interaction between high and low culture and her “notes” are relevant here. Movies, such as King Kong, popular music, the graphic displays/art of Andy Warhol, or Ayn Rand’s novel, Atlas Shrugged, are by no means high art but force their way into being discussed and compel attention. Television programming in general, and this TV program, Fairly Legal, in particular, clearly qualifies as kitsch or camp as Sontag thought of it. It is “(a) sensibility— unmistakably modern, a variant of sophistication but hardly identical with it…” “The essence of Camp,” Sontag suggests, “…is its love of the unnatural: of artifice and exaggeration. This television show aspires to be Camp. There is no admission test to qualify for being Camp; you know when you ‘see it;’ if you find yourself at the same time “…strongly drawn…. (to a piece of work), and almost as strongly offended by it…,” then it is likely Camp. “Camp taste turns its’ back on the good-bad axis of ordinary aesthetic judgment.”

Time will tell if Fairly Legal can qualify for Camp. For right now what I know is that this cute TV show employs every device known to amuse, and at the same time presses every disdainful button I have. My elevated appreciation of mediation as a high art form is assaulted by this program which presents a comic- almost slapstick, theatrical- shot through with artifice vision of mediation practice.

But I cannot complain too loudly. I strongly believe that being irrational can be a quite rational practice and marketing strategy. And, as irrational as Fairly Legal might be in taking ‘poetic license’ with the depiction of mediation, and despite innumerable factual faults—the anti-lawyer bias, the clear conflicts of interest simply ignored, the abject confusion between the roles of lawyers and mediators, and the hit and run mediator style—- it just might be silly, naive and extravagant enough to catch on as Camp. If it does, the publics’ attention to mediation might be captured more effectively than is has been to date. Through the back door of absurdity, the mediation process might intrude on popular sensibility and come to be seen as a legitimate way to solve difficulties. Certainly if vampire and werewolf movies can encourage the belief in the human capacity to tame the beast within and romantically arouse millions of teenage girls as the Twilight movies have done, then there is hope for human kind that they might consider the prospect that a energetic mediator can settle difficult conflicts in an hour.

In the first few episodes of Fairly Legal the mediator uses a variety of “tricks,” including the apparent breaking a watch ostensibly coveted by both people, and other devices to distract and redirect the attention of the feuding parties. Whether intentional or not, this is a good example of the mediator as a trickster figure, jumping right out of the pages of the best folklore. (R.D. Benjamin, “Managing the Natural Energy of Conflict: Mediators, Tricksters, and the Constructive Uses of Deception,” 2004) It demonstrates an approach and strategy that relies less on logic and reason and more on what might be termed rational irrationality. As many experienced mediators have discovered, indirect and sometimes non-logical approaches can often lead to a thoughtful decisions. (R.D. Benjamin, “The ‘Irrational’ Mediator: The Brain, The Myth of Rationality and the Application of Neuroscience In Conflict Management, 2009) Sometimes, for example, in some difficult matters, the frustration of an impasse can be a useful catalyst to foment and allow for a more creative approach to problem solving. (R.D. Benjamin, “The Joy of Impasse,” 2010)

Sontag observed presciently what neuroscientists and cognitive psychologists are beginning to appreciate. The human brain is not neatly divided between reason and emotion, constructs that divide what is deemed rational and irrational are often artificial, and emotional and analytical functions are inseparable. Sontag similarly noted that “(t)he experiences of Camp are based on the great discovery that the sensibility of high culture has no monopoly on refinement. Camp asserts that good taste is not simply good taste; that there exists, indeed, a good taste of bad taste.” (“Notes on ‘Camp’,” in Against Interpretation and Other Essays, 1961) One can be so rational and analytical so as to become irrational; conversely, being irrational is sometimes a quite rational response or tactic. Many experienced mediators have come to realize that often the use of reason and logic are the least effective ways of convincing anyone of anything. In addition to passing analytical muster, good decisions must feel right if they are to withstand scrutiny and remain durable.

Unfortunately, most mediation pedagogy and training still tends to be based on the working assumption that people make decisions out of their reasoned self interest in accordance with Rational Decision Making Theory. Few do, as recent studies in neuroscience, cognitive psychology, and behavioral economics suggest. Most people—both mediators and the parties involved—tend to be “predictably irrational.” (Damasio, A. 2004; Ariely, D., 2008; Kahneman, D. and Tversky, A., 2000; Sunstein, C. and Thaler, R., 2008) The trick is to strategically anticipate how we and others are likely to be irrational and how to counter and use those tendencies to advantage.

Nowhere is harnessing the irrational inclinations of people more apparent and necessary than in marketing a product or service such as mediation. (R.D. Benjamin, “Selling Mediation: The 9 ½ Best Guerrilla Marketing Strategies and Techniques Drawn From Neuroscience,, 2010.) This is not rocket science; most people accept that the best product or service is better sold with a dash of sex and a bit of humor than by dry logic and reason. This is all the more important to recognize in selling mediation; most people start out with hesitancy, if not an outright distaste and distrust of negotiation and mediation. For many people, negotiation feels like a sell-out, giving in, or compromising their principles when they know they are right; for some, it feels, downright immoral. With a little luck, Fairly Legal might chip away at some of that resistance. For all its faults, if the television show catches on and becomes Camp, then people might be less hesitant to try mediation, if only because the mediator might be cute. It’s potentially a good piece of rationally irrational marketing for mediation. For our part, as professional practitioners, we need to enjoy being titillated and amused and not watch the program too closely. Oh yes, and a reminder to those of you who mediate: dress provocatively and be witty.

copyright, February 3, 2011, all rights reserved, Robert D. Benjamin


Robert Benjamin

Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care. A lawyer and social worker by training, he practiced law for over 25 years and now teaches and presents professional negotiation, mediation, and conflict management seminars and… MORE >

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