The Court Of Public Opinion » mediator

Full Circle

The Court Of Public Opinon — Tue, 11 Aug 2009 14:00:04 +0000

When the founding fathers came to draw up a constitution, although all of them had been born and bred in what Thomas Jefferson described as the ?orthodox doctrines of British liberties,? they necessarily found but scant guidance looking at the English model because that country had never found it necessary to write down a constitution.

Clearly, the House of Representatives was modeled after the House of Commons, there being no other model to draw upon, since Europe at that time was for the most part absolutist and possessed no such traditions. Further drawing on their understanding of the English model, the founding fathers wanted a second chamber, but had to resolve upon some system other than the House of Lords, which at that time was composed of hereditary peers, which the Americans had decided would not do at all in the new Republic, along with the bishops of the Church of England, also entirely foreign to American way of thinking which was based upon non-conformism and a refusal to countenance an established church. They resolved upon a curious compromise reaching back to the old Roman tradition for the word ?Senate,? but still looking to the English model for representatives from each state.

Oddly enough, the House of Lords has continued to evolve, while the Senate remains more or less fixed as it was set down in the Constitution of 1776, and has by now become in a sense quite anomalous. Hereditary peers have lost all right to exercise any vote in the House of Lords, but the British still have not entirely decided upon the best manner of composing the upper house, which though it has lost all power to the House of Commons nonetheless is preserved as a deliberative chamber with a certain power to delay legislation.

In the years before the great Reform Bill of 1832, many members of Parliament were returned by a mere handful of votes, being returned for what were then termed ?Rotten Boroughs,? because of the clearly inequitable proportion of votes required to return such members, sometimes no more than a dozen. Today in a somewhat amazing reversal of history, one could view many of the states of the Union as rotten boroughs, because they return two Senators in spite of having a disproportionately tiny number of voters. The state of Delaware has far fewer residents than the San Fernando Valley, yet returns two Senators with exactly the same voting powers as the two California Senators who between them represent the fifth largest economy in the world and 30 million people.

At the time of the American Revolution, the House of Lords exercised great powers but those powers have gradually disappeared, whereas today each Senator is in effect a virtual fiefdom. Any Senator can stop any business from being transacted; that is to say, a single Senator from a state with few than one million people can prevent the passage of legislation, even if that legislation has been passed by the House of Representatives. What ever else this may be, it is certainly not anything resembling a true democracy because the Senate today, with incumbents nearly impossible to unseat, is far more like an aristocracy than today?s membership of the House of Lords.

When it came to constructing the judicial system, the founding fathers sought to retain the common law in its entirety, with the single exception of the Constitution, and it must be said that the Constitution is an exceedingly important difference. But as for form and procedure, the old tradition of the common law, already at that time more than 600 years old, prevailed almost without change. But when it came to deciding what should be the highest court, again the founding fathers were on their own, because they could derive nothing but mystery and obfuscation from looking at the English system.

Even today, although the current British government is seeking to change the system, the highest court in the land is said to be the House of Lords, but it is not really the House of Lords at all but a mere committee of the House of Lords composed of a number of senior judges, who collectively are referred to as the Law Lords. But whereas the Justices of the Supreme Court have a magnificent Greco-Roman style building of their own, and frequently appear in resplendent black robes as celebrities in their own right, most people in England would not be able to name of a single Law Lord. Indeed, the House of Lords is so informal that it is hardly a court at all; it meets in a committee room in the upstairs of the House of Lords, and the Law Lords wear no kind of robe but merely appear in lounge suits. The present English government, breaking with a tradition of more than half a millennium, says it intends to replace the House of Lords with a Supreme Court, so perhaps with wonderful irony the highest court of appeal in Britain will finally come to resemble the U.S. Supreme Court.

Charles B. Parselle is a mediator, arbitrator and attorney. He graduated from Oxford University?s Honor School of Jurisprudence and is a member of the English bar, then was admitted to the California Bar in 1983. A practicing attorney, he is a prolific author and sought-after mediator. For a free consultation, please contact him through his website: http://www.parsellemediation.com

What We Talk About When We Talk About Mediation

The Court Of Public Opinon — Sun, 05 Jul 2009 22:00:07 +0000

Mediation is older than any legal system. The great Bacon wrote the praises of mediation nearly four hundred years ago, in one of his celebrated Essays:

?It is generally better to deal by speech than by letter, and by the mediation of a third, than by a man?s self . . . in all negotiations of difficulty, a man must not look to sow and reap at once, but must prepare business, and so ripen by degrees.? Francis Bacon (1561-1626)

To mediate means:

1.To bring about (an agreement, peace, etc.), as an intermediary between parties by compromise, reconciliation, removal of misunderstanding, etc.

2.To settle (disputes, strikes, etc.), as an intermediary between parties: reconcile.

3.To effect (a result) or convey (a message, gift, etc.), by or as by an intermediary.

4.To act between parties to effect an agreement, compromise, or reconciliation.

5.To occupy an intermediate place or position.

6.Acting through, dependent on, or involving an intermediate agency; not direct or immediate.?

Mediation means:

1.Action in mediating between parties, as to effect an agreement or reconciliation.

2.International law, an attempt to effect a peaceful settlement between disputing nations through the friendly good offices of another power.?

Synonym(s):

1.Mediation, arbitration designate processes for bringing about agreement for a reconciliation between opponents in a dispute. Mediation implies deliberation that results in solutions that may or may not be accepted by the contending parties: mediation settled the strike. Arbitration involves a more formal deliberation, it being understood that the results will be binding on the contending parties: ?the strike was settled only after arbitration.?

(All definitions are reproduced from Webster?s Encyclopedic Unabridged Dictionary of the English Language)

Webster?s synonyms tend to confuse mediation with arbitration. Arbitration is designed to produce a result with a winner and a loser; it is a not a process for ?bringing about agreement for a reconciliation.? Mediation unlike arbitration is not designed to produce winners and losers, but precisely a reconciliation of differences. Mediation attempts to be win-win. They are both ?alternative dispute resolution? mechanisms, but one bears little resemblance to the other.

Webster does accurately state the role of mediator as intermediary between parties to a dispute. Mediation is as old as civilization and pre-dates anything resembling legal process. The mediator is a go-between, who passes busily from party to party in an attempt to assist them reconcile their differences. In late classical Athens, the comedies of Menander often featured a wily slave who carried messages, and in the country house farces beloved of Victorian audiences, the chambermaid often served as an intermediary between two lovers. The Aztecs, who had no written language, used messengers or intermediaries to convey exact messages of outstanding length. Carrier pigeons have been used to carry messages for hundreds of years, and can navigate over endless uncharted miles, but so far no carrier pigeon has become a mediator.

Though a mediator may lack some of the abilities of a carrier pigeon, she can and does carry messages, but that is the least of her functions. She is a trained professional who has the skills to overcome numerous obstacles, the perseverance to continue the process despite all impulses of the parties to end it, and who is able at length to bring them to closure of the particular dispute despite their differences, and sometimes achieve a full reconciliation. Such results are not easily achieved, and such skills are not easily learned.

The textbooks say that there are three ways to mediate, or three types of mediator. These are 1) evaluative 2) facilitative 3) transformative.

An evaluative mediator is one who is prepared to express an opinion as to the likely outcome of a dispute. Parties who seek an evaluative mediator will often choose a retired judge. The prerequisite for giving an evaluation is subject matter expertise. Judges, who have decided hundreds or thousands of cases, or who have observed hundreds of juries reaching a verdict, are often trusted by parties to render an evaluation, which the parties may find useful in coming to a decision about their particular dispute. However, not only retired judges are used for the purpose of evaluation. Persons engaged in a construction dispute will often go to an engineer, general contractor, or other person with subject matter expertise.

A facilitative mediator is one who stresses that the function of his job is to enable, or facilitate, parties to communicate and negotiate with each other, in order to arrive at their own evaluation and resolution. A facilitative mediator may consider it unethical to render an opinion. The facilitative style may require greater patience and skill in enabling parties to craft their own resolution, than may be necessary for an evaluative mediator. Parties may prefer an evaluative mediator when they wish to resolve their dispute and proceed on their separate ways. Facilitative mediation may be more desirable where the parties wish to, or must, engage in a continuing relationship with each other, so that the particular dispute is merely a roadblock that needs to be overcome in order to enable that continuing relationship.

Many mediators are perfectly willing to be either evaluative or facilitative, as the situation demands.

The third type of mediator is called ?transformative?, and the goal of transformative mediation is far bolder, and more like therapy, than the goal of traditional, evaluative or facilitative mediation. ?Transformation? suggests that the goal is to affect a transformation, in the parties themselves, and in their relationship. Transformation means (1) act or process of transforming; state of being transformed. (2) Change in form, appearance, nature, or character. (3) Theatrical, a seemingly miraculous change in the appearance of scenery or actors in view of the audience.

In ?Mediating Dangerously,? (2001) Kenneth Cloke, a pioneer of transformational mediations, writes:

?The transformational or elicitive model of mediation? views conflict as something to be learned from, and the parties as ready for introspection and fundamental change. The mediator becomes an empathetic yet honest agent, whose role is to elicit recognition and empower the parties to solve their own problems. ? Personally I use a modified version of the transformational model, based a more intuitive, integrative, dangerous approach to mediation. I neither direct nor stand apart from the conflict, but interact with the parties and reflect on possibilities, based on intuitive assessments at the time.?

The function of a mediator is to enable change. A mediator is a catalyst whose presence and skills enable change. The type of change so enabled is the most difficult of all ? change of mind.

Change is needed for movement to occur. Movement is needed for the disputants to approach each other. The disputants must approach each other for negotiation to occur. Negotiation must occur for solutions to be explored. Solutions must be explored for the disputants to achieve a resolution that satisfies competing interests.

At some level, disputants cherish their dispute, and the emotions and attitudes that accompany it ? they want to lay down the burden yet are reluctant to do so. They want the satisfaction that accompanies winning. They want not merely to win; they want to other side to lose, and preferably be manifestly seen to lose.

When an outsider hears both sides of a conflict, she may get the impression that the disputants are in illusion, the competing illusions colliding in conflict. One or both of them has ?got it wrong.? If both sides are brought to share roughly the same reality, or view of the case, they settle. This is called by many colloquial expressions, like ?getting into the same ballpark,? ?getting into the same zip code,? etc. The presence and skills of the mediator tilt the balance in favor of reality, rationality, and closure.

The three bedrock principles by which mediation is conducted are (1) confidentiality (2) voluntary participation and (3) party control of outcome.

Charles B. Parselle is a California mediator, arbitrator and attorney. He graduated from Oxford University, then joined the California Bar in 1983. His articles are regularly published in legal magazines, such as The Daily Journal, Bar Notes and Mediate.com. He is the author of the book, The Complete Mediator. For a free consultation, please contact Mr. Parselle through his website: http://www.parsellemediation.com

The Tension Between Doubt And Certainty

The Court Of Public Opinon — Fri, 03 Jul 2009 09:59:59 +0000

Every mediated negotiation oscillates between doubt and certainty. Parties seek certainty even though very often they are besieged by doubts. People entering negotiations experience apprehension, which is another word for fear, though fear expressed at a low level of intensity. The reason they have come to a mediator is because they did not feel able to achieve a negotiated result on their own.

Therefore, a mediated negotiation is already, almost by definition, a negotiation which has either gone wrong or has never begun or which has a doubtful prognosis.

During the course of most people?s lives, they are negotiating at various times for various things and millions of negotiations are accomplished every day without the need for the intervention of an experienced mediator. Thus from the outset we see that a mediated negotiation contains elements of difficulty which have led the parties to be willing to spend money on the expert services of a professional in the particular field.

Generally speaking, a party must experience doubt in order to arrive at a mediated solution. The experience of doubt is uncomfortable. The experience of certainty is much more pleasant. People seek certainty in order to avoid the pain of doubt. A party to a negotiation has usually achieved a measure of certainty with regard to the position that they are taking, and that certainty which is a mental state is fortified and buttressed by all kinds of sorts, considerations, feelings, emotions, attitudes and arguments, all of which are themselves mental states.

However, the nature of a negotiation is that a mutually satisfied outcome can never be reached unless each party is prepared to change position. Such change involves movement from a well-fortified position into a position of doubt.

The process of moving from one position to another is mentally taxing, which is why the presence of a mediator can be of great help and comfort. As soon as the parties have arrived at a different position, they will dig in with all kinds of arguments and considerations, emotional ideas and attitudes, and they will gradually or rapidly achieve a degree of certainty about the new position that they have now assumed.

It may be necessary for the parties to move position many times before they reach the zone of possible agreement. That is why they must oscillate between certainty and doubt again and again, and that is why many people would rather resort to conflict, precisely because it is possible to enter a conflict without ever having to change ones? mind or experience the kind of mental tension that is involved in changing ones? mind.

Many organizations including government departments where the procedures for taking decisions are institutionalized and cumbersome, find it easier to leave the decision up to somebody else rather than go through the stress and trouble of taking decisions internally.

Many cases go to trial because one or other or both of the parties are simply unwilling to engage in the difficult task of negotiating a settlement. The task of the mediator, if such parties are willing to enter into mediated negotiation, is to help them overcome the internal barriers to achieving the changes necessary to avoid a third party outcome.

Of course, many times the reason a matter proceeds to trial or other conflict is because one or both of the parties have simply misread the situation in reality.

All negotiations have an internal and an external aspect. The internal aspect is the individual?s own subjective reactions to what is going on. The external reality is what the legal system is designed to deal with; in fact, the legal system is designed to squeeze out of the process all mental or emotional reaction and to delineate only the facts that can be adduced in evidence that are relevant, that is to say, that have a bearing on the legal issue presented to the court. But here as well, the mediator has a vital role to play, in being a sounding board against which the parties can test the reality of their own view of the situation.

Thus we see that parties may have a distorted view of reality, in addition to having inappropriate emotional attitudes to the problem. This is called the difference the real negotiation and the shadow negotiation, and the expert mediator needs to be expert in dealing with these different aspects.

In this way, the task of the mediator is more complex than the task of a court, which has had all the emotional side of it squeezed out by the rules of evidence, so that a dry problem can then be presented for a legal resolution. But such resolutions are often unsatisfactory to both sides, and they are always unsatisfactory to the losing side.

Although mediated negotiation is difficult, and often far more trying on the parties than a trial itself, nonetheless it has the exquisite advantage that it results in a solution arrived at by the parties themselves. Such negotiated resolutions are far more stable. They not only result in finality, but also in a release of emotional burden on both sides. They are thus a healing experience, and to this extent are a far more civilized and sophisticated method of resolving disputes than the legal system, which merely declares a winner and a loser.

Charles B. Parselle is a mediator, arbitrator and attorney. He graduated from Oxford University?s Honor School of Jurisprudence and is a member of the English bar, then was admitted to the California Bar in 1983. A practicing attorney, he is a prolific author and sought-after mediator. To consult him, please contact him through his website: http://www.parsellemediation.com

Negotiations Within Negotiation

The Court Of Public Opinon — Sat, 25 Oct 2008 18:01:42 +0000

If only two persons attend a mediation and they are both have authority to settle, then only three negotiations take place. They are between (1) person 1 and person 2, (2) person 1 and mediator, (3) person 2 and mediator. The dynamics of this are easy to manage.

More commonly, at least four persons attend, namely two parties and two attorneys, in which case ten dynamic interactions may take place, as follows: (1) party 1 and party 2, (2) party 1 and lawyer 1, (3) party 1 and mediator, (4) party 1 and lawyer 2, (5) party 2 and lawyer 2, (6) party 2 and mediator, (7) party 2 and lawyer 1, (8) lawyer 1 and mediator, (9) lawyer 2 and mediator, (10) lawyer 1 and lawyer 2.

It is easy to draw a cats cradle to demonstrate the complex dynamics that exist in the above simple mediation, with only two parties each represented by an attorney.

If this was a dinner party with five friends, the conversation would be a free for all with everyone having a wonderful time. But a mediator cannot afford to have a free for all in a mediation session. A mediation is a negotiation, and every negotiation is (however politely or amicably conducted) an adversarial process. It is war waged with kisses. Further, most mediations take place within a larger context of adversarial relationships, or adversarial process such as potential or pending litigation.

If there are multiple participants, i.e. more than two parties and two attorneys in a mediation, the cats cradle becomes exponentially more complex, in fact, exceedingly complex. Such negotiations can easily get out of hand. It becomes all the more important for the mediator to set herself or himself as the focal point of all communications, and to control cross-table communications quite carefully, with as much finesse as possible.

No one attends a mediation without an agenda. Every persons agenda is different.

The mediator must control the flow of communication, or the negotiation will founder. That is why he was hired. With whatever subtlety or bluntness this is accomplished, it is essential. The mediator must be willing to shut off a destructive communication. He/she must also be willing to draw necessary communication out of participants who are keeping silent, even if this requires a private session.

The easiest way to control the dynamics of the situation, without attempting to stifle them, is to have the participants communicate with each other through the mediator. The slight deflection that this requires has an ameliorating effect on the language and the attitude of the speaker. As this is exactly what happens in court, attorneys are used to it.

There are only two kinds of communication in mediation. The first is any communication that keeps the negotiation moving towards clarity and settlement. The second is any communication that tends to torpedo, stifle or impede clarity and settlement. When bad communications occur, as they always do, the mediator must repair the damage and move on.

There are only two venues for a communication. The first is in joint session. The second is in private session.

Joint sessions are for participants to communicate positively such facts, attitudes, interpretations, arguments, and offers as will tend to move the parties closer to the goal of settlement.

Individual sessions have two purposes. The first is to permit participants to vent. Venting means to express negative thoughts and emotions about the other side. The setting in which such venting takes place must be controlled by the mediator in such a way as to advance, not impede, the purpose of settlement, and this means in private session. The purpose of venting is to get it said and done with. Some people take longer to vent than others. Some people never stop venting on their own volition, in which instance the mediator must make a calculated judgment when to call a halt to it. The second purpose of private session is to discuss what the participants will say in joint session, or what they want the mediator to convey to the other side.

Sometimes a participant wants to express his or her thoughts, emotions, feelings or attitudes directly to the other side. This is the side of mediation that is closest to therapy. The only reason to permit this is if it will advance the settlement process. How this is done is very important. There is a world of difference between on the one hand, explaining how one feels, and on the other hand, engaging in an ad hominem attack on another participant. This can be quite subtle. However much a person is coached, sometimes they just cannot resist turning an account of how they feel into a personal attack. There is a simple rule concerning ad hominem attacks: dont do it, because it never helps.

These issues do not always arise. Often, the volume and extent of these potentially explosive interactions is reduced or minimized by the parties themselves or their lawyers. Some lawyers prefer keep their clients out of the negotiations, keeping them on hand to ratify settlement proposals. Some parties do not want to take an active part in the proceeding, feeling that is what they retained an attorney to do for them. Also, attorneys often do not want their clients interacting directly with the other sides attorney. Some clients become terribly frustrated with the other sides attorney, seeing him or her as the supreme obstacle sometimes such a client takes the opportunity to call the other sides attorney a liar; the mediator should put an immediate stop to such fighting words.

Charles B. Parselle is a mediator, arbitrator and attorney. He graduated from Oxford Universitys Honor School of Jurisprudence and is a member of the English bar, then was admitted to the California Bar in 1983. A practicing attorney, he is a prolific author and sought-after mediator. To consult him, please contact him through his website: http://www.parsellemediation.com

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The Tension Between Doubt And Certainty

The Court Of Public Opinon — Sat, 25 Oct 2008 06:01:43 +0000

Therefore, a mediated negotiation is already, almost by definition, a negotiation which has either gone wrong or has never begun or which has a doubtful prognosis.

During the course of most peoples lives, they are negotiating at various times for various things and millions of negotiations are accomplished every day without the need for the intervention of an experienced mediator. Thus from the outset we see that a mediated negotiation contains elements of difficulty which have led the parties to be willing to spend money on the expert services of a professional in the particular field.

It may be necessary for the parties to move position many times before they reach the zone of possible agreement. That is why they must oscillate between certainty and doubt again and again, and that is why many people would rather resort to conflict, precisely because it is possible to enter a conflict without ever having to change ones mind or experience the kind of mental tension that is involved in changing ones mind.

Of course, many times the reason a matter proceeds to trial or other conflict is because one or both of the parties have simply misread the situation in reality.

All negotiations have an internal and an external aspect. The internal aspect is the individuals own subjective reactions to what is going on. The external reality is what the legal system is designed to deal with; in fact, the legal system is designed to squeeze out of the process all mental or emotional reaction and to delineate only the facts that can be adduced in evidence that are relevant, that is to say, that have a bearing on the legal issue presented to the court. But here as well, the mediator has a vital role to play, in being a sounding board against which the parties can test the reality of their own view of the situation.

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Closure

The Court Of Public Opinon — Fri, 24 Oct 2008 18:01:42 +0000

Closure represents the triumph of reality over illusion, recognition that things are the way they are, not the way we wish them to be.

A man has got to know his limitations. Clint Eastwood, Magnum Force

Settlement is a peace treaty declared on agreed terms. It represents the triumph of reality over illusion, rationality over expectation, calculation over emotion, and the cessation of conflict between parties who, in many cases, will go their separate ways.

Reconciliation is different from a peace treaty, and harder to achieve. It represents a collaborative harmonization of emotional needs and perceived realities, where the parties want or need to continue living in relationship with one another.

After the defeat of Hitler in 1945, Europe, for a thousand years the cockpit of war was utterly devastated. Yet today, twenty-five European nations with different languages, histories, and economies have achieved gradual reconciliation so thorough that today a general European war is not conceivable. Neither today can we conceive of California attacking Idaho, or Alabama marching on Ohio. Reconciliation is possible.

Some litigators are quite withering about mediation: I try my cases, they boast, a variation on the theme real men dont eat quiche. The reality is that these real men do settle their cases 96% of the time.

Without war we would have no word for peace, without peace no word for war; they are a dichotomy. The classical Greek word for the natural state of things was stasis, from which we derive the word static, but which to them meant perpetual conflict. The task of the mediator is a little more complicated than simply asking: Cant we all just get along?

The mediator has the task of maintaining the process between the parties, whether the goal is settlement or reconciliation, through convening, opening, communicating, negotiating, until the final step, which is closure.

It will be found that parties often negotiate to a short distance from each other, but the final step that each side has to make proves elusive. They are like a horses that gallop right up to a jump, but then screech to a halt, sometimes throwing the rider and as far as mediation is concerned, this is a moment when the whole process may blow up.

At this final stage, suddenly emotion may again take over, and the impulses of the ego thrust themselves forward. With only a small concession needed to achieve resolution, the desire to win, to score a victory over the opponent, to stick it to the other side, to achieve a tiny measure of revenge, reasserts itself.

How is a mediator to proceed? Some mediators talk about the dignity of being able to say No and walk away. Others take the view that the dignity of saying No is an insufficient reward to exchange for the benefits of achieving resolution. Such mediators see, in their minds eye, the parties as having entered the room with a great burden upon their backs, or a ball and chain around their ankle that with just a little more effort can be removed. Even if the parties, having settled, walk out of the room with some reluctance, which is called buyers remorse or sellers remorse, the buyer wondering if he took too little, the seller wondering if he paid too much, the match is over. The reason the parties chose mediation in the first place was to achieve that cessation. It is not just a matter of money, and certainly not a matter of ego. There is a great deal of time and stress, and waste of energy and resources, involved in disputes, so that the benefit the parties receive in the form of getting their lives back is a very important consideration.

You’ve got to know when to hold ‘em, know when to fold ‘em. Kenny Rogers

Full Circle

The Court Of Public Opinon — Fri, 24 Oct 2008 10:01:44 +0000

When the founding fathers came to draw up a constitution, although all of them had been born and bred in what Thomas Jefferson described as the orthodox doctrines of British liberties, they necessarily found but scant guidance looking at the English model because that country had never found it necessary to write down a constitution.

Clearly, the House of Representatives was modeled after the House of Commons, there being no other model to draw upon, since Europe at that time was for the most part absolutist and possessed no such traditions. Further drawing on their understanding of the English model, the founding fathers wanted a second chamber, but had to resolve upon some system other than the House of Lords, which at that time was composed of hereditary peers, which the Americans had decided would not do at all in the new Republic, along with the bishops of the Church of England, also entirely foreign to American way of thinking which was based upon non-conformism and a refusal to countenance an established church. They resolved upon a curious compromise reaching back to the old Roman tradition for the word Senate, but still looking to the English model for representatives from each state.

In the years before the great Reform Bill of 1832, many members of Parliament were returned by a mere handful of votes, being returned for what were then termed Rotten Boroughs, because of the clearly inequitable proportion of votes required to return such members, sometimes no more than a dozen. Today in a somewhat amazing reversal of history, one could view many of the states of the Union as rotten boroughs, because they return two Senators in spite of having a disproportionately tiny number of voters. The state of Delaware has far fewer residents than the San Fernando Valley, yet returns two Senators with exactly the same voting powers as the two California Senators who between them represent the fifth largest economy in the world and 30 million people.

Charles B. Parselle is a mediator, arbitrator and attorney. He graduated from Oxford Universitys Honor School of Jurisprudence and is a member of the English bar, then was admitted to the California Bar in 1983. A practicing attorney, he is a prolific author and sought-after mediator. For a free consultation, please contact him through his website: http://www.parsellemediation.com

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American Hegemony

The Court Of Public Opinon — Thu, 23 Oct 2008 18:01:43 +0000

The nineteenth century the Victorian age – effectively began in 1815, with the Battle of Waterloo, and ended in August 1914 with the outbreak of the First World War. During that 99 years, the British with their enormous navy and vast overseas possessions, maintained a kind of hegemony which insured almost a century of relative peace in the world and an expansion of free trade that reached its pinnacle at the turn of the 20th century and has not been matched since then.

By the 1880s, the British had lost economic supremacy to the United States and Germany, and then were severely weakened by the carnage of 1914-18, resulting in a power vacuum such that the twentieth century is already looked upon as the most destructive period in human history. Germanys challenge had failed by 1917 both on the high seas and in the trenches of Flanders, while the United States maintained its isolationist stance, but the British were nonetheless forced off the Gold Standard and unable to influence the rise of fascism in Italy and Germany. With no one at the helm the world drifted towards disaster.

Protected by two oceans and with colossal economic potential, the United States recovered from Pearl Harbor within six months to smash the Japanese carrier fleet at the Battle of Midway, effectively putting the Japanese into a defensive position from which they were never able to recover. In the European theatre, the German military machine was crushed between Russian armies in the north and east, American and British armies in the south and west, with the great bulk of the fighting falling on the Russians. Although the British Empire survived the war intact, that 500-year saga had effectively come to a close, and in the next 30 years the British entirely dismantled that empire which had once encompassed about a quarter of the world. As Europe lay in a kind of devastation not seen since the Black Death in the first half of the fourteenth century, the Soviet Union and the United States challenged each other for hegemony of the world, a struggle that ended in 1989, marked by the collapse of the Berlin Wall with complete victory to the United States. This event marked the effective ending of the dismal twentieth century, at the same time the shortest and the bloodiest century in human history. It is from that legacy that the world today is recovering.

How is the United States doing as the hegemonic power? As a military power it is wholly unrivaled and indeed unchallengeable. The United States operates eleven carrier battle fleets, each of which constitutes a greater concentration of destructive power than all ordnance expended in World War II. Unlike the British who only ruled the waves, the United States rules all the oceans and the whole of the worlds airspace. How many carrier battle fleets exists in opposition to Americas eleven? The answer is none. In addition, the United States continues to maintain a nuclear arsenal more than adequate to destroy human civilization as we know it, because in an interdependent world the use of nuclear weapons would indeed be a shock as disastrous for the perpetrator and for the victims.

Yet accompanying this unparalleled military might, there are signs of weakness that give cause for concern. The United States has become the worlds largest debtor nation, in marked contrast to the nineteenth century British who always maintained its position as a net exporter of capital until the start of World War I. Two-thirds of the US economy relies upon consumer demand, and the goods that the consumer demands are overwhelmingly now manufactured in Asia. Wal-mart estimates that six out of every seven items sold in its stores are manufactured in China. General Motors recently announced plans to layoff another 25,000 workers, and Moodys recently lowered Ford Motors borrowing capacity to junk bond status. The Peoples Republic of China, a supposedly communist state, just bid to purchase Unocal. This trend will continue. Notwithstanding strategic concerns, foreigners now own so large a percentage of U.S. government debt that American control of its own destiny is in jeopardy. The United States remains preeminent in some areas, particularly computer software, chip design, and of course military hardware. But the manufacturing center of the world is now Asia, particularly China.

Meanwhile, the nations of Europe have accomplished what amounts to a peaceful revolution of world importance. After ceaseless fighting each other since time immemorial, in 1945 the heartland of Europe lay in ruins. It seemed as if the Europeans had finally done it to themselves once and for all. The rebuilding of Europe into a semi-coherent political body and functioning economic body has been so successful that todays European Union, consisting of 25 nations with as many or more different languages, is today a slightly larger economy than the United States, in spite the fact that nearly all European countries are socialist. Notwithstanding the recent no vote of the French and Dutch on the next stop forward toward political unity, no one in Europe is suggesting taking a step backwards, and the forward progress has been very remarkable indeed. It is today as inconceivable that France will go to war against Germany as that Idaho will go against war against Nebraska.

The United States maintains 725 overseas military bases. Yet it is encountering increasing difficulty in maintaining its far-flung commitments. As historian Niall Ferguson wrote recently [Colossus, 2004, the United States suffers from three deficits, a manpower deficit, an economic deficit and an attention deficit. The military is having difficulty maintaining even its commitment in Iraq, with numerous units required to serve four or more recurring tours of duty. Politicians are starting to call for a return to the draft.

Americans have always tended to be inward looking with isolationism as a respected attitude, understandable considering the massive size of the continental U.S. This is neatly illustrated by comparing two different songs, the American anthem with its refrain From sea to shining sea, with the English song Rule Britannia, Britannia rules the waves. The different perspectives are unmistakable. Yet the United States shouldered its worldwide commitments, starting with its extraordinary success in World War II, followed by its long commitment to confronting the Soviet empire, leading finally to todays hegemonic status. It is of great interest to world civilization that the United States uses its term in office to the best possible effect.

Today the world has shrunk while the population has soared. It took nearly complete destruction for the Europeans finally to conclude that the day of the nation-state is effectively over, and that the only way forward is closer and closer cooperation. That also is the only way forward for the entire world, because serious fighting in todays world is increasingly like fighting in ones own backyard, and with todays weaponry this is risky indeed.

That is why it is disturbing to notice the current U.S. trend back into a kind of isolationism in terms of international cooperation. American withdrawal from the Kyoto Treaty evidences an ostrich-like attitude towards the worlds accelerating environmental problems. The catch phrase The economy comes before the environment, poses an entirely false choice not only the economy but our entire lives are embedded in and dependent upon preservation of the environment. Disdain towards other nations, withholding of United Nations dues, refusal to recognize the International Criminal Court, outright rejection of the International Land Mine Treaty, and a host of similar isolationists decisions bodes ill for a country whose very economic system is heavily dependant for viability upon foreign investments.

All the problems that we face both as Americans and citizens of the world are manmade. The United States is the hegemonic power of the world for the foreseeable future. It remains possessed of massive resources, its people have immense energy and resourcefulness, and it is still in a position to exert tremendous influence on the outcome of world affairs. But does it have the will to do so? An isolationist mind-set is no longer an option because everything the U.S. does or fails to do has repercussions worldwide. All of us have to start thinking both internationally and holistically. International lawyers may have a vital role in the next twenty-five years.

Charles B. Parselle is a mediator, arbitrator and attorney. He graduated from Oxford Universitys Honor School of Jurisprudence and is a member of the English bar, then was admitted to the California Bar in 1983. A practicing attorney, he is a prolific author and sought-after mediator. For a free consultation, please contact him through his website: http://www.parsellemediation.com

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What We Talk About When We Talk About Mediation

The Court Of Public Opinon — Thu, 09 Oct 2008 18:01:50 +0000

Mediation is older than any legal system. The great Bacon wrote the praises of mediation nearly four hundred years ago, in one of his celebrated Essays:

It is generally better to deal by speech than by letter, and by the mediation of a third, than by a mans self . . . in all negotiations of difficulty, a man must not look to sow and reap at once, but must prepare business, and so ripen by degrees. Francis Bacon (1561-1626)

To mediate means:

1.To bring about (an agreement, peace, etc.), as an intermediary between parties by compromise, reconciliation, removal of misunderstanding, etc.

2.To settle (disputes, strikes, etc.), as an intermediary between parties: reconcile.

3.To effect (a result) or convey (a message, gift, etc.), by or as by an intermediary.

4.To act between parties to effect an agreement, compromise, or reconciliation.

5.To occupy an intermediate place or position.

6.Acting through, dependent on, or involving an intermediate agency; not direct or immediate.

Mediation means:

1.Action in mediating between parties, as to effect an agreement or reconciliation.

2.International law, an attempt to effect a peaceful settlement between disputing nations through the friendly good offices of another power.

Synonym(s):

(All definitions are reproduced from Websters Encyclopedic Unabridged Dictionary of the English Language)

Websters synonyms tend to confuse mediation with arbitration. Arbitration is designed to produce a result with a winner and a loser; it is a not a process for bringing about agreement for a reconciliation. Mediation unlike arbitration is not designed to produce winners and losers, but precisely a reconciliation of differences. Mediation attempts to be win-win. They are both alternative dispute resolution mechanisms, but one bears little resemblance to the other.

The textbooks say that there are three ways to mediate, or three types of mediator. These are 1) evaluative 2) facilitative 3) transformative.

Many mediators are perfectly willing to be either evaluative or facilitative, as the situation demands.

The third type of mediator is called transformative, and the goal of transformative mediation is far bolder, and more like therapy, than the goal of traditional, evaluative or facilitative mediation. Transformation suggests that the goal is to affect a transformation, in the parties themselves, and in their relationship. Transformation means (1) act or process of transforming; state of being transformed. (2) Change in form, appearance, nature, or character. (3) Theatrical, a seemingly miraculous change in the appearance of scenery or actors in view of the audience.

In Mediating Dangerously, (2001) Kenneth Cloke, a pioneer of transformational mediations, writes:

The transformational or elicitive model of mediation views conflict as something to be learned from, and the parties as ready for introspection and fundamental change. The mediator becomes an empathetic yet honest agent, whose role is to elicit recognition and empower the parties to solve their own problems. Personally I use a modified version of the transformational model, based a more intuitive, integrative, dangerous approach to mediation. I neither direct nor stand apart from the conflict, but interact with the parties and reflect on possibilities, based on intuitive assessments at the time.

The function of a mediator is to enable change. A mediator is a catalyst whose presence and skills enable change. The type of change so enabled is the most difficult of all change of mind.

At some level, disputants cherish their dispute, and the emotions and attitudes that accompany it they want to lay down the burden yet are reluctant to do so. They want the satisfaction that accompanies winning. They want not merely to win; they want to other side to lose, and preferably be manifestly seen to lose.

When an outsider hears both sides of a conflict, she may get the impression that the disputants are in illusion, the competing illusions colliding in conflict. One or both of them has got it wrong. If both sides are brought to share roughly the same reality, or view of the case, they settle. This is called by many colloquial expressions, like getting into the same ballpark, getting into the same zip code, etc. The presence and skills of the mediator tilt the balance in favor of reality, rationality, and closure.

The three bedrock principles by which mediation is conducted are (1) confidentiality (2) voluntary participation and (3) party control of outcome.