The Principles of Mediation and the Future of Ethics

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Speech at Annual Conference of the
Northern California Mediation Association,
March 22, 1997

You can imagine my horror when I read what was said about me in the
announcement for this meeting: “Joe is one of the most entertaining
punsters of the Bay Area.” Not only did that statement haunt my precious
preparation time for this speech, I haven’t been able to come up with a
single pun that fits with anything I want to say.

But so you won’t be disappointed I have taken two out of the archives to
start off with. In the early days of the Peninsula Conflict Resolution
Center, when we were beginning our close association with the mediation
staff of San Mateo County, I came to a joint PCRC/County meeting one day
after being seriously ill, and was approached by two staff members, Tina
Coffey of the County and Margie Bush from the PCRC staff. They expressed
concern for my health, but, fortunately, I had recovered enough to be able
to say to them, “Don’t cry for me Marge and Tina.”

Now that I am warmed up let me also warn you not to attempt to steal the
table napkins. I have been told that the person here in charge of such
things has utilized a new technology to put an invisible electronic code on
the napkins and table cloths that, if you are carrying one, will cause an
alarm to go off when you pass through the door. He is sort of a high-tech
“marks his linenist.”

I do not claim to be a serious scholar of either philosophy or conflict
resolution but I have found it interesting to work the territory where the
two connect. The theologian who had the most influence on my fundamental
belief system, Paul Tillich, contended that some of the best and most
practical thinking occurs when people ponder the overlap and
interconnections between separate and independent fields of endeavor, such
as between psychology and art, religion and politics, or Madonna and Dennis
Rodman.

What I plan to try to do today, is to relate your practices of mediation to
the ethics of Aristotle and to disentangle the enlightened ethics of
Aristotle from the unenlightened ethics of Kant. On that foundation, I hope
to show how your practices of mediation contain a powerful tool for dealing
with the multi-cultural reality of our present day society.

Then, in the second five minutes of my speech …..

I am going to try to put together some things that many of you may not have
thought were connected. I just hope I do not justify in this attempt the
criticism Marx made of Proudhon: “He thinks he is the creative synthesis;
in fact, he is the composite error.”

Well, be it creative synthesis or composite error, as Martin Luther said,
if you are going to sin, sin boldly, so I shall plunge right in.

In Western Philosophy, the systematic study of ethics was basically
invented by Aristotle twenty three and a half centuries ago. Even though
Aristotle made a number of assumptions that we can severely criticize today,
such as his unquestioning acceptance of slavery and of the patriarchal views
of his time and, alas, of most times, when it comes to the basic system of
ethics, what it is all about and how it works, he got it right the first time.

Aristotle said that the whole point of ethics is to bring about results
that produce real and profound human happiness, for each of us individually
and for all of us together. To use more modern terminology, he was saying
that the heart of the ethical process is the creation of value, for human
beings, directly and indirectly. Genuine, rich and deep happiness, for each
individual and for society as a whole is our ethical goal, said Aristotle.
It is what we should strive for, and why we do what we do, if we want to be
ethical.

Now, in addition to what I have already said by way of qualification of the
Aristotelian viewpoint, we also know that he was not as sophisticated as weare today about how not just humanity but the whole world, as a delicately
balanced eco-system, has to be part of our ethical concern, even if only for
the sake of humanity. But, even there, Aristotle was ahead of his time. He
was fascinated by the biological world around him and was also the first
great systematic scientist in his careful study and recording of a fair
amount of nature’s fascinating variety and relationships.

Now, Aristotle realized that individuals and societies have to come up with
ethical rules to cover recurring situations. We don’t have the time or the
energy to deal with every situation as if it had never come up before. You
cannot do without rules. And, I am going to say more about rules later when
I come to the king of all rule-making, Immanuel Kant. But, for now, what
Aristotle saw from the beginning, and it was a tremendous insight,
absolutely fundamental, was that rules must not be allowed to dominate
ethical reflection or ethical behavior. Moral rules are a helpful, but
secondary, adjunct to ethics. When there is a conflict between what truly
serves the human good and obeying the rule, it is the rule that must bend,
break, or be totally revised. Rules are never absolute, said Aristotle.

Aristotle well understood that people can be unethical. And he knew that
unethical people love to hear that moral rules are not absolute. But that
doesn’t matter. Rules or no rules, unethical people will be unethical. But
Aristotle wanted to deal with how to be ethical, for the people who wanted
to be ethical. So, for Aristotle, rules were helpful guides, especially for
the uncomplicated, recurring consistencies of daily life. But real ethics,
that which really calls into play our concerns and our abilities, has to do
with doing the things that truly result in human happiness and fulfillment.

Aristotle thought that being ethical was partly a matter of commitment and
partly a matter of using good sense, and not just simple good sense but
comprehensive and long range good sense. Ethical people learn from
experience and from one another, on a daily basis and through the study of
history. Individuals, and societies, can gain higher levels of insight
about what tends to help and what tends to harm. And ethics can change. We
must be alert to changes in the situation which can require a different
approach to ethical problems that were once thought to be more or less resolved.

Now, mark this: Aristotle assumed that we, as human beings, can take
responsibility for being ethical and can actually succeed at being ethical,
even throughout a lifetime. We can work for the good in spite of all of the
problems we face in doing that, including the pressures from society and the
pressures that come from within our own being. Of course, Aristotle
understood that life is complicated and that the best thing to do is not
always easily understood, but he thought that the ethically committed person
could handle the responsibility and, most of the time, act in ways that
really do lead to serving the human condition well.

But there is another point of view, indeed, an absolutely opposing point of
view, as you may well know. It found its intellectual expression in the
history of Western Philosophy in the writings of Immanuel Kant in the 18th
century. I prefer, by the way, to use the German pronunciation of his name,
not the English, so bear with me if that grates on your ears.

Kant was so good at expressing the anti-Aristotelian point of view that he
managed to turn real ethics upside down and caused a huge amount of damage.
I want to put this as mildly as I can so I will just say that Kant is a
major intellectual contributor to two nefarious developments in the 20th
century: Nazi Germany, and the terribly overly-litigious society of late
20th century America.

I don’t mean to imply that Kant was personally a mean man. He was very
mild mannered and, unlike some youthful Marin County scientists, he wouldn’t
hurt a fly. But the intellectual and practical mischief he caused in the
field of ethics has had some rather disastrous consequences. I don’t know
why Kant thought the way he did. Maybe it was because he was so culturally
one dimensional that he never found occasion to travel more than forty miles
from his birthplace even though he was wealthy and became world famous. His
life was so fixed, so comfortable, so static, that the townspeople set their
watches by his daily stroll. “Everything is fine, right where I am,” he
must have said to himself, and, thanks to the accident of history that gave
him one of the truly brilliant minds of all time he set out to destroy the
wonderful ethical inheritance of Aristotle and in so doing, screwed us all
up royally.

Kant believed that every individual, and that includes you and me, and him,
could not hold up under the burden of trying to be ethical according to the
teachings of Aristotle. We are all too selfish and too short-sighted. Kant
said that if we are given the freedom to be creative in trying to bring
about human good, the best we will come up with is a complete
rationalization of why we should pursue no ethic whatsoever, and, instead,
immerse ourselves, and as many others as we can, in a pool of absolutely
selfish, down and dirty, scumbag hedonism. (In case you are wondering, that
is not an exact quote.)

We have no ethical capability to work for the good, that we either inherit
or can achieve, said Kant. The only way we, and society can survive, is for
the authorities to impose rules, including the moral rules as well as the
civil law. And these rules must be absolutely authoritative, with rigid
enforcement and appropriate punishments when they are violated. The moral
rules, which had been secondary and flexible in Aristotle became primary and
absolute in Kant.

We can and should be people of good will, said Kant. But “good will” meant
committing oneself to obeying the rules whenever situations come up where
the rules apply, no matter how hard it is to do. Indeed, the harder it is
to do, if we succeed, the more moral we are. We are being most ethical,
said Kant, when we have to bring all of our self discipline into play, in
order to obey a rule we do not wish to obey. In other words, when obeying
the right rule really feels bad, said Kant, that is when you are the most moral.

Aristotle, of course, did not see it that way at all. He believed that we
should try to cultivate our habits in such a way that doing good felt good.
To be moral meant, for Aristotle, to cultivate good life habits so that the
good thing to do came to feel like the most natural thing to do. But
mostly, for Aristotle, it really wasn’t a matter of whether something felt
good or bad in the doing it, it was whether or not it produced real value to
the people involved.

To be fair to Kant, he did think that the rules should serve individual and
social values and he came up with some rules on how to make the rules do
just that, called the categorical imperatives. But these were not to be the
concern of you and me. Our job is to obey the rules as they are handed down
to us by the authorities, religious and secular. Ours is not to reason why.
And, get this, my friends, Kant was absolutely clear that ours is not to
worry about the results of our actions. Just obey the rules and let the
chips fall where they may. After all, Kant reasoned, if everybody told the
truth, it would be a morally better world for everybody, a point of view
that is not shared, I might add, by the latest Jim Carey movie, “Liar, Liar.”

Knock, Knock! Who’s there? This is the Gestapo. Do you have any Jews in
this house? As a matter of fact, you do, here in your home in Nazi occupied
Holland in 1944. There are several Jewish families trying to survive,
hidden in your attic, including an adolescent girl named Anne, who seems to
be keeping some kind of a journal. What do you say? Well, I shall tell you
what Kant would say: “I cannot tell a lie, because that would be breaking
one of the moral rules. Come on in, they are in attic.”

“But Immanuel,” you say, “do you mind if I call you Immanuel?” “I
certainly do mind. Its Mr. Kant to you.” “O.K., Mr. Kant, if I tell the
truth about those people hidden in the attic, it will lead to the almost
certain death of innocent people, by forces that are truly evil.” “That is
not your concern,” Kant replies. “Just obey the rules, it is not your job
to worry about the results of following the rules.”

Remember Adolph Eichmann. He was the first really big Nazi captured in
South America after World War II. In fact, his job in Hitler’s government
was rather mundane, even if it was high level. He was in charge of the
transportation system. He made the trains run on time, a fascist virtue
since the early days of Mussolini, and the trucks and the cars and for all I
know the bicycles and roller skates, those Nazis were so efficient. There
was just a little bit of a problem, Mr. Eichmann. Among the people being
transported in your wonderfully efficient system were six or seven million
Jews and other assorted undesirables like communists, Gypsies and
homosexuals who were being taken to their deaths in the concentration camps.
So now, a decade and a half after the end of World War II, Adolph Eichmann,
the “man in the glass booth,” was being tried for his war crimes in Israel.
According to Hannah Arendt, he asked a very simple, and very Kantian
question: “I was a good soldier and a good citizen. I did what they told
me to do. I obeyed the rules. How can you say that I am guilty of crimes
against humanity?” How could we indeed?

Kant believed that any time you bend or break a rule because of a concern
about the outcome, you immediately start sliding down the old slippery
slope. First you lie to save a life, then you lie to save your job, then
you lie to save face and then you lie because you have forgotten why in the
world you were supposed to be truthful in the first place. And that
slippery slope argument is all over the place today. If we allow a woman to
take the ethical responsibility for making a choice about abortion we shall
soon be slaughtering all babies born with deficiencies. If you allow gays
and lesbians to marry others of the same sex then right around the corner is
the complete destruction of the American family!

We heirs of Aristotle have a different view. Sure, sometimes the slope is
downright slippery, but give me a break. I know the difference between
lying to save the innocent from needless and cruel death and lying that is
destructive to our daily human relationships.

There are other grave problems with Kant’s point of view, and this one may
be the most significant of all. According to his scheme most of life is
removed from the realm of moral activity. As long as you are breaking no
rules, you are in the clear, with no additional moral responsibility. You
don’t get off that easy with Aristotle. He keeps you much more busy,
ethically. For Aristotle it is not even much of a matter of moral
responsibility, it is a matter of moral opportunity. With Aristotle,
looking for opportunities to create value should be on your mind most of the
time. What is the creative opportunity for this moment in this place? What
can we do in this relationship to bring in a little more quality of life for
others and ourselves?

Let me put it in terms of a relationship. Is my wife going to be satisfied
that I have fulfilled my moral obligation to her as long as I don’t lie to
her and don’t lie with anyone else? Not bloody likely. Sure, those things
are important and they are significant rules for me to pay attention to.
But what she wants, and what I want as well, is for me to be pro-active and
creative in finding ways to enhance our relationship and express our love to
one another and enrich our life together. For Aristotle, that is what it is
all about; for Kant, that’s nice, but it has little to do with ethics.

Kant also makes it far too easy to have a clear conscience. I didn’t lie,
so my conscious in clear, I don’t care how many people were harmed. I
didn’t cheat on my wife so I am not responsible for her wanting to dissolve
this marriage.

With Aristotle, it is much harder to maintain a good conscience, and
virtually impossible to have a totally clear one. For you know, most moral
problems are quite complex and there is almost nothing that you can do that
is not going to have some negative effects as well as positive ones. You do
the best you can to minimize the harm and maximize the good but you seldom
walk away clean. And when you struggle to be moral in the midst of
considerable ambiguity our friend Kant lurks right next door saying, “Come
on over here and I will give you a clean conscience. I will oversimplify
your world of choices and I will reassure you that most people in your
society will believe you are an upright citizen.”

And now for Kant’s final achievement. When most people think of ethics,
they think of Kant’s definition. He won the struggle over language, at
least for most people. He managed to transform the way people think about
ethics so much that, for most of us, following rules is equated with ethics,
and focusing on creating helpful outcomes is often seen as being unethical.
The epithet frequently thrown at us Aristotelians by the Kantians is that we
believe that the end justifies the means. Darn right we do. If the end
doesn’t justify the means, what does? Do you really think that the means
justify the end, no matter how destructive that end might be?

Of course, it has to be all of the results of our actions that are taken
into account, not just part of them. We cannot justify a lot of harm for a
little bit of good. But if the choices are between doing nothing and
letting a huge amount of harm to be done and getting involved and maybe even
doing a little harm to stop the much greater harm and try to bring about
some good, that is what the truly ethical person is willing to do.

Now, let me clear up this business about the rules once and for all. All
rules are essentially negative, no matter how positively they are expressed.
They all focus on what not to do. At their best, they are like a protective
fence that we build around a value. For an example, let me again refer to
my love for my wife, which is very great. Because I love my wife, and value
very highly what we have together, and don’t want to unduly jeopardize it,
there are certain things that I don’t do. I don’t run around with other
women, and in spite of what you may think it is not entirely due to lack of
opportunity. But the reason I obey that rule is because I truly love and
cherish my wife and I know that if I violate that rule I would be putting
what we have together that is so valuable to me, and I think to her, at
great risk.

And, as I said earlier, the real ethical aspect of my relationship with my
wife is my ongoing commitment to creating value between us and among us.
The rule limiting my behavior is there, and I obey it, but it is not the
focus of my attention, and it is not felt by me to be unfairly restrictive.
There is no ball and chain mentality involved. It is a reasonable restraint
to protect something very good.

Rules become problematic in two ways. One is when the situation becomes
extreme and very unusual, so that the rule does not do the job of protecting
the value it is supposed to protect. The other is when the value that the
rule protects begins to erode or change substantially.

For example, for almost as long as there has been the practice of medicine,
the rule for medical personnel to do all they can to extend life made a lot
of sense. But then, circumstances changed. Now we have machinery and
medicines that can keep someone breathing for ten or twenty years after they
would, in an earlier time, been long gone. That rule has to change because
it now produces a different result than it did before.

When a rule has lost the central value it is trying to protect, it does not
matter how hard the authorities, be they the churches or civil government,
clamp down to try to enforce it and punish the breaking of it. It will not
work. Rule problems never stand alone. The real problem is always a value
problem and the rule problem is always a symptom of a lost or changed value.

If young people in our society are joining gangs, becoming addicts and
killing one another, it will not be solved by coming down harder with more
restrictive rules and harsher punishments. It will only be solved when we
are able to introduce them to some values that mean something. Then they
will begin to understand some good reasons to live by the reasonable rules
that protect those values.

Our legal system is an authoritarian rules system. That is why it has only
a limited value to society, primarily the restraining of some of the more
outrageous behaviors that people can come up with, especially those that are
directly harmful to the common good. But our present situation with the
courts, where every single human transaction lives under the shadow of a
potential lawsuit, is the logical dead end in civil society of the Kantian
point of view. When everything becomes totally rule saturated, rather than
focused on the creation of real value for people and their world, it creates
an intolerable situation, in which, ironically, the callous manipulation of
the rules by experts in the rules-based system pushes things farther and
farther away from the creation of value.

That, too, is part of the legacy of Immanuel Kant.

Okay, now that we are in court, we are into the modern world, so let’s look
around. For many reasons, including especially the legacy of Immanuel Kant,
the ethical dimension of our society is in bad shape. One of those reasons
that this is so is because most of us were taught a strange mixture of both
the Aristotelian and Kantian traditions and, since they are logically not
only incompatible but are the diametrical opposites of one another, the
teachings of Aristotle and Kant for most people engage in a constant battle
down there in the depths of their psyches. You cannot simultaneously say
that outcome is everything and outcome is nothing.

And, if we opt for Aristotle, for example, without every having had the
whole thing explained to us, we just feel guilty for the way we are
violating that part of what we were taught that came from Kant. It is no
wonder that many people today are sorely tempted to give up on the whole
ethical enterprise because trying to work it out in the midst of such
conflicting signals is very hard to do.

And we don’t get any help from the moral philosophers of the last century
or so. Some, like Witgenstein, tell us that there is no way to talk about
ethics and others, like A.J. Ayer, tell us that there is no way to measure
ethics, so let’s call the whole thing off.

But that is a long term problem. There is also a more immediate problem as
well.

Let us assume that you are all convinced Aristotelians and understand the
necessity to worry about the results of your efforts instead of being a rule
nerd. Let us also assume that you care about who you are and what you do
and you want to be an ethical person. But as you try to sort out your
values and live by them you find yourself confronted by a multi-cultural
society with all kinds of different values, often in conflict with one
another. In such a world of conflicting values, and a greatly varied
multi-cultural situation, how can we determine which values to follow?

It was certainly not a problem for Kant because he never experienced it.
It was more of a problem, even way back then, for Aristotle because he did
quite a bit of moving around and, as the one-time instructor of Alexander
the Great he had a connection with the most traveled politico of his time.
But, most of all, it is a problem for us and it often confuses and threatens
our ethical understanding. Many of us succumb to the temptation to go to
one extreme or the other.

Some take the conservative route and say, “My values uber alles, and, with
God on my side, I shall assume the ultimate superiority of the values I
believe in over all others. Let’s be true Americans once again!”

Others take the opposite alternative and say, “It is all just too
complicated for me. I am not going to worry about it any more. I’ll just
become cynical about the whole ethical enterprise.”

Too many people feel they must become either conservatives or cynics and
there are no other alternatives.

The problem, I think, is that we don’t understand values enough, what they
are and how they work. For you see, values are a kind of promise. Values
whisper into our ears and say, “Stick with me, kiddo and I’ll give you
something you will appreciate.” Values are promised answers to questions of
basic human need.

And the question of human need, as Aristotle pointed out, is crucial. The
whole ethical effort is founded on the question: How can we be truly
fulfilled and happy, as individuals and as societies, balancing the needs of
both and striving to make our lives meaningful and content?

The trouble with values as promises of human happiness is that they can be
false promises as well as true ones. Sometimes they promise and can’t
deliver. Sometimes they promise too much. Sometimes they promise one thing
and deliver another. Values have to be examined very closely, through
personal and collective experience to determine which promises are true and
which promises are false.

Obviously, the way to go is to declare that a major part of the system of
doing ethics to push beyond values in order to get to the more fundamental
level of needs and desires. Instead of being content with values as
answers, we have to go back and re-ask all of the questions.

So it is wrong to suggest that the problem in the modern world is to sort
out the different value systems to try to reconcile them. Again I say that
what needs to be done is to push back behind values to ask what are the
various aspects of the human condition that form the questions, for which
values are the answers. If a kid thinks crack cocaine is the value that
makes his life worthwhile, we don’t just say that it is not so and that
crack will sooner or later destroy his life. We’ve got to find a way to
investigate, with him, what the underlying questions of his life are, for
which crack cocaine has become a major part of the answer, as value, as it
were, even if it is a false value.

You have your values, I have my values, Clarence has his values and Melody
has her values. When these values differ, and especially when they
conflict, we need to come together to explore what underlying needs in our
basic humanity led to the acceptance of these values and seek a common
ground in our questions and needs, rather than in our answers and solutions.
And being ethical, engaging in ethics, in our society at this time means
finding ways to do that.

And that is a reason, among many reasons, why mediation is the key to our
ethical future. That is why mediation is the map that is going to get us
out of this ethical wilderness. For what are the central practices of
mediation and what do they teach us?

Mediation teaches us that the focus of our efforts should be to create
value, as much as possible, for all the parties involved, rather than to get
bogged down with the problem of who was right, according to the rules, and
who was wrong. Mediation is by its very nature on the side of Aristotle in
that huge divide in our ethical inheritance between Aristotle and Kant.
Admit that Aristotle was right and Kant was wrong and get on with the program!

All of you know that the most common problem at the beginning of a
mediation is to get people to move away from a legalistic, and
punishment-oriented, view of the matter and get them to begin to see that
the creation of real value is both desirable and amazingly possible. And
that is the key to life as well.

The second thing that mediation teaches us is that you do not rest content
with people’s positions, which is to say their values expressed in the form
of concrete alternatives. People have to dig deeper than that until they
come down to their basic needs. For when they reach their basic needs level
most people can really start to communicate and they can usually begin to
empathize. And that is a key to life as well.

The third thing that mediation teaches us is that people have to be made to
listen to one another. It does no good to get down below the level of their
values, if we are not simultaneously encouraging them to really pay
attention to what they see there in the needs of others, as well as
ourselves. If you cannot hear people when they expose their basic needs and
their basic pain, then you are truly morally deaf.

If I can make the distinction between the basic ethical impulse and an
operating ethical system, this is it. People have to become concerned for
more than just themselves, if mediation is to work, if ethics is to work,
and if life itself is to work. And it is right there, at the opportunity to
observe fundamental human needs and questions that the basic ethical impulse
lies. And, isn’t it interesting that such an insight is clearly articulated
in the mediation process?

The fourth thing that mediation teaches us is that the secret to life is
not carefully protecting ourselves behind rules and established patterns of
existence, but it is in letting the creative juices flow, making things new
and making them better. The sooner and the better you can get at this level
of mediation the sooner mediation really gets cooking. And the sooner that
we get to this point in all of our life relationships, the sooner and better
do we become truly alive, and our ethics and our happiness become
surprisingly better connected and more fulfilled.

Finally, mediation teaches us that we have to be intelligent about the
creative options we so energetically devise. Some solutions will pay off
better than others and some will die at the light of day. It is not easy
keeping the balance between the self and the community and paying close
attention to what will work and what will not. We have to try to make sure
that our creative possibilities are truly creative, truly encompassing and
truly liberating and not false promises with hidden dangers. So it is with
mediation, So it should be with ethics. So it is, and should be, with life
in our world if we are not to become fully lost.

All of these things are simultaneously central mediation practices and
central ethical concepts. Mediation turns out to be the intuitive leading
edge of a new ethic that can redeem our beautifully multi-cultured but
terribly chaotic age. Mostly without realizing it, you have been in the
vanguard of those who can lead our society out of the ethical morass we have
been in for some time.

Getting out from under the burden of a litigious court system is only one
part of what is happening. Teaching people a way to get along, and a way to
rediscover some very creative and very powerful approaches to addressing a
whole slew of life’s problems and possibilities is what you should all be
about, not just in your work of mediation but in the personal practice of
your life and in your community leadership.

The discovery of an appropriate ethic for our time is not coming out of the
religious community. Lord knows its not coming from the sandboxes of
academic philosophy.

It can come, and I think it will come, at least in part, from you, the
mediators, and the simple but profound skills and procedures you have
developed. For you are on to something amazingly powerful and amazingly
profound, even as it is so elegantly simple. The key to the ethical future
of our society is in what you do. Don’t rest content to just enjoy and, in
many cases, just try to make money off of what you have discovered in mediation.

The secret of the recovery of ethical health in our society is right now
sometimes uncomfortably, and sometimes too comfortably, located in the
hearts and minds of mediators. I encourage you to share more of it with
your friends, and strangers, and even enemies. You will be amazed at its
power and applicability.