The physicist Wolfgang Pauli…would sometimes exclaim “wrong” (falsch) or “completely wrong” (ganz falsch) when he disagreed with someone. Near the end of his life, when asked his opinion of an article by a young physicist, he sadly said “it is not even wrong” (das is nicht einmal falsch). (1)
I get the same sad feeling as I survey the state of ADR. I’m afraid that for many of the most respected writers in the field being wrong would be an improvement.
Take for example Bringing Peace into the Room: The Personal Qualities of the Mediator and Their Impact on the Mediation, a much anthologized article by Daniel Bowling and David Hoffman. It begins this way:
Empirical studies of the mediation process consistently show high rates of settlement, as well as high levels of participant satisfaction. These results seem to occur regardless of mediation styles or the philosophical orientation of the individual mediator…. Indeed, the history of mediation, as well as our own experience, shows that mediation sometimes works even when the mediator is untrained. Is there some aspect of the mediation process — wholly apart from technique or theory — that explains these results?
The authors go on to provide this answer:
[T]here is a dimension to the practice of mediation that has received insufficient attention: the combination of psychological, intellectual, and spiritual qualities that make a person who he or she is. We believe that those personal qualities have a direct impact on the mediation process and the outcome of the mediation. Indeed this impact may be one of the most potent sources of the effectiveness of mediation… As mediators, we have noticed that, when we are feeling at peace with ourselves and the world around us, we are better able to bring peace into the room. Moreover, doing so, in our experience, has a significant impact on the mediation process. (2)
This is not something I pulled off of some flakey website. It comes from the textbook I use to teach my ADR course at Wayne State University Law School. Lawyers everywhere would recognize the book. It’s one of those big red and black jobs with gold lettering that cost $122. This is mainstream thinking in the ADR business. And it is not just nonsense, it is pernicious nonsense.
The model that can best help us understand the mistake being made here is the history of medicine. For the first several thousand years of medical history doctors had no idea what they were doing. Sometimes they tried a poultice, sometimes a pessary, and sometimes a purgative. It didn’t matter. Sometimes the patients got better and sometimes they died. No intervention was any more or less effective than any other. What was to be made of this?
What some people made of it is that the effectiveness of an intervention has to do not with the intervention itself, but with the spiritual purity of the intervener. If the doctor was ritually purified the intervention would work. If not, not.
This belief – precisely this belief in the necessity of ritual purity – delayed for centuries the discovery of antisepsis.
And it is precisely this mistake that we are making in ADR today. All the vast literature on “mindfulness” and “presence” and inner peace, the advice that mediators need to meditate and center themselves before and during their mediations, is deluded in just the way that the physician is deluded who fasts and prays instead of washing his hands.
No one who knew what he was talking about would make that mistake. When we discover the dispute resolution equivalent of antiseptic we won’t make it either. But that discovery will only come about if we dedicate ourselves to careful empirical investigation of testable hypotheses. As long as the field contents itself with producing article after article, conference after conference, book after book on the subject of “mindfulness” and as long as introspection is its chief investigative tool, real progress toward understanding will be delayed and the field will continue to wander in ignorance and superstition.
1 R. Peierls. Biographical Memoirs of Fellows of the Royal Society 5 (February 1960), p. 186 quoted in P. Woit. Not Even Wrong: The Failure of String Theory and the Search for Unity in Physical Law, Basic Books 2006, p. xii.
2 reprinted in Resolving Disputes: Theory, Practice, and Law, Folberg, Golann, Kloppenberg Stipanowich, Aspen 2005, p. 268-9.
Only a few years ago, mediation was regularly confused with meditation, medication, or arbitration, another mode of conflict management, but a distant cousin. The confusion was not limited to the...By Robert Benjamin