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Mediator as Moral Witness
David Hoffman has written an article based on a talk he gave at the March 2013 Harvard Negotiation Law Review Symposium honoring the legacy of Roger Fisher. David is an attorney, mediator, arbitrator, and founder of Boston Law Collaborative, LLC. He teaches the Mediation course at Harvard Law School, where he is the John H. Watson, Jr. lecturer on Law. In this article, David recounts two stories of conflict and mediation, shares some lessons to be learned from paying attention to the social psychology of conflicts, and ties these lessons to the work of Roger Fisher. Please click the following link to access this piece: Mediator as Moral Witness
HNLR Symposium 2013 Videos Online
You can now find videos of the panels from this year’s HNLR Symposium – Ideas and Impact: Roger Fisher’s Legacy – on the Symposium 2013 page (at http://www.hnlr.org/symposium2013/).
HNLR 2013 Symposium – Save the Date
Please mark your calendars for the HNLR 2013 Symposium, to be held on Saturday, March 2, 2013 at Harvard Law School’s Austin Hall.
The 2013 Symposium will honor the late Professor Roger Fisher’s life and impact on the field of alternative dispute resolution. More details about the schedule of events and speakers will be updated soon.
Let’s Try a Presidential Dialogue
By Robert C. Bordone and Heather Scheiwe Kulp
UPDATE: See the authors’ related Los Angeles Times op-ed here.
After the first presidential debate, it was hard to tell whether the pollsters and pundits were talking about the NFL or the candidates’ meeting. President Obama’s “prevent defense” and “two-yard runs down the middle” were criticized, while Romney was said to have “spiked the football.”
If the presidential debate was reported more as a sporting event, the vice presidential debate seemed more a horror movie. The next day’s newsbytes cited the Vice President’s “show of teeth” and “barroom brawling” and Rep. Paul Ryan’s “lacerating blows.” Some even called Biden “unhinged.”
As conflict resolution professionals whose entire professional lives are devoted to teaching others how to listen more effectively to each other and engage in genuine, learning dialogue, we had high hopes for the “town hall” format of Tuesday’s Presidential debate. Here, at last, would be a chance for a real conversation between citizens and candidates and, as the format originally intended, between the two candidates themselves. The format, in theory, would invite both candidates to respond directly to questions from undecided voters in the room, making the kind of hand-to-hand, tit-for-tat jousting of previous debates more unseemly and inappropriate in front of the seated citizens.
But joust and tussle they did, all night long. By the time the first question from an undecided voter had been answered, the citizen/voters in the room were relegated to mere pawns, props in the candidate’s epic battle. CBS’ Norah O’Donnell wondered afterward whether the candidates might even come to blows at times.
Sadly, at home, we too kept score. We tweeted and we blogged. We cheered when our candidate had a good zinger. We booed when the other seemed out-of-line.
So how is it that during these debates, even we, purported conflict resolution professionals, were so easily sucked into a win/lose mentality? After all, virtually every day we counsel our own students that it is precisely in situations where stakes are high and emotions are strong—like in this election—that deploying conflict management skills matter most.
In the past few election cycles, news coverage of debates has come to resemble more closely SportsCenter or TMZ than considered engagement of nuanced issues in a representative democracy. The language of performance has seeped into our political speech, even with processes that did not used to be so fraught with scorekeeping.
The Lincoln-Douglas senatorial debates give some historical perspective. The original debates were a series of seven three-hour conversations between Abraham Lincoln and Stephen Douglas designed to inform the citizenry about a shared value—freedom—and which slavery policies would best preserve that value in America. Thousands of rural Midwesterners came out to participate. After each debate, newspapers around the country published the full text, so other citizens could engage the material around their own pot roasts, pool halls, and church pews.
But when the post-debate talk ̶ both on TV and in our own homes – is more about who won the 140-character Tweet fight than about the deeper values, priorities, and visions articulated by the candidates, something has gone awry. Voters have been transformed from active citizens to mere political spectators.
With entertainment rhetoric firmly in place, “We the People” too often mistake a presidential or senatorial debate for a WWF wrestling match. We voter/fans consume product pitches and spit back chants (“De-fense! De-fense”) instead of expecting that our political leaders engage in fruitful dialogue. Democratic strategist Hilary Rosen even admitted that the debates were “theater,” designed so that voters can “see great performances because it helps [a party] spread the word that this is a ticket worth buying.”
So are presidential debates doomed to be just another excuse to gather friends, family, and other partisans around snacks and beer to enjoy the show?
We hope not. Political entertainment does little good for the voters or the country. Despite the troubling dumbing-down of our political campaigns and news coverage of them, we believe that at heart most of us still tune in to the debates because we want to understand how the candidates will address the most challenging and important issues of the day.
But form must follow function. The current debate structure, with two-minute-per-candidate answers to questions, whether from a reporter or a hapless undecided voter, along with the endless post-game scorekeeping-posing-as-analysis, doesn’t allow such discussion.
Because the current meaning of “debate” is so fraught with analogies to sport and show, we question if debate is what the country really needs. Perhaps we ought to reframe and retitle these important national moments as “Presidential Dialogues” and invite our candidates to model a productive, positive discourse for the American people, one that will be necessary if either of them is likely to be successful as our next leader.
Thomas Jefferson knew that public exposure to national dialogue was the only remedy against a concentration of power. In 1778, he introduced A Bill for the More General Diffusion of Knowledge. The preamble asserted that even the most conscientious of governments gets sucked in to hunger games. The only check, he believed, was to “illuminate, as far as practicable, the minds of the people at large.” The people, then, could identify perversions of power and engage fully in national conversations about their own individual rights.
The spin doctors say that people have no attention span for such engagement, that the general population won’t understand the complexities of social security or the tax code. “Spoon feed them; make words sticky,” they say.
Most people are more thoughtful than that. Indeed, the questions the citizens asked last night were important, thoughtful, and relevant. Voters want and need substance and real dialogue, not sound bites.
A Presidential Dialogue, modeled on a dinner table conversation between two neighbors with competing visions but shared hope for a better community, could bring us back to something closer to the original intention of political debates. It could engage more of us, for longer, than a 90 minute brawl.
Imagine what it would be like to see two candidates aspiring to high political office, both with divergent and conflicting views, able to engage such a challenging dialogue. It might show us a real example of leadership, one that would inspire the rest of us to model it with our own neighbors, friends, and even our foes. We call it trickle-down dialogue.
Robert C. Bordone is the Thaddeus R. Beal Clinical Professor of Law at Harvard Law School and Director of the Harvard Negotiation & Mediation Clinical Program. Heather Scheiwe Kulp is a Clinical Fellow at the Harvard Negotiation & Mediation Clinical Program
Why Camp David II Failed: a Negotiation Theory Perspective
Rochelle-Leigh (Shelley) Rosenberg
“I don’t think they will ever reinvent the wheel. And the difference between this moment until the moment of reaching an agreement will be how many names–Palestinians and Israelis–will be added to the lists of death and agony. At the end of the day, there will be peace.”–Saeb Erekat
On July 24, 2000, after fourteen straight days of negotiations at the Camp David II presidential retreat, President Bill Clinton, Israeli Prime Minister Ehud Barak, and Palestinian Authority (PA) Chairman Yasir Arafat returned to their respective countries unable to reach a deal. Despite the summit’s failure to produce a final settlement of the Israeli-Palestinian conflict in accordance with the 1993 Oslo Agreements, Arafat requested another meeting. Nearly five months later, the parties reconvened at the White House on December 19, 2000, and following separate meetings with both parties, Clinton offered his last proposal. Barak, who had wagered his political career on the potential deal, endorsed it. Arafat made no counteroffer and gave no explanation. Instead, he simply walked away.
Arafat’s exit shocked the world: “Arafat’s decision to walk away from these offers, effectively ending the Oslo peace process and inflaming the burgeoning second intifada . . . stunned the U.S. and Israeli leaders.”[1] Shortly after, in his New York Times column “Foreign Affairs; Yasir Arafat’s Moment,” Thomas Friedman explained to the American public that Arafat “played rope-a-dope. He came with no compromise ideas of his own on Jerusalem. He simply absorbed Mr. Barak’s proposals and repeated Palestinian mantras about recovering all of East Jerusalem.”[2] Even Arab leaders admitted that they were caught off guard when Arafat cut off negotiations.[3] In his autobiography, My Life, Clinton reflected on an exchange he had with Arafat upon his abrupt departure. “You are a great man,” Arafat told Clinton after Camp David II. Clinton responded, “I am not a great man. I am a failure, and you have made me one.”[4]
This paper examines the failure of Camp David II from a negotiation perspective. For the purposes of this paper, Barak and Arafat represent the nations of Israel and Palestine, theoretically unified entities. It should also be noted that due to the complexity of the Israeli-Palestinian conflict, this paper takes a simplistic view of the hypothetical unified parties’ primary interests at a single point in time. It begins with a sketch of each party’s primary interest. It then evaluates why the Clinton proposal did not offer a Zone of Possible Agreement (ZOPA).[5] The paper concludes with suggestions for use in future negotiations between the Israelis and Palestinians in the hope that one day a “final settlement” will be reached.
[1] Russell Korobkin & Jonathan Zasloff, Roadblocks to the Roadmap: A Negotiation Theory Perspective on the Israeli-Palestinian Conflict After Yasser Arafat,30 Yale J. Int’l L. 1, 24 (2005).
[2]Thomas L. Friedman, Foreign Affairs; Yasir Arafat’s moment, N.Y. Times, July 28, 2000, www.nytimes. com/2000/07/28/opinion/foreign-affairs-yasir-arafat-s-moment.html?pagewanted=all&src=pm.
[3]Elsa Walsh, The Prince: How the Saudi Ambassador Became Washington’s Indispensable Operator, New Yorker, Mar. 24, 2003, at 48.
[4] Bill Clinton, My Life 633 (Knopf Publishing Group, 2004).
[5] Robert H. Mnookin, Scott R. Peppet, & Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes 19 (Library of Congress-Cataloging-in-Publication-Data, 2000).
