An Introduction to The Advocates and the Work of Professor Roger Fisher: A Prequel to the Program on Negotiation

 

By R. Lisle Baker, Professor of Law, Suffolk University Law School, HLS ‘68 and former advocate on The Advocates.

Before Roger Fisher founded the Program on Negotiation at Harvard Law School, he was nationally recognized for having created an award-winning public affairs television show, The Advocates, which aired on the Public Broadcasting System. Over the course of its five year season, beginning in 1969 (plus additional shows in 1978-79 and in 1984), The Advocates previewed some of the ideas that appeared in Roger’s many writings and, eventually, as part of the Program on Negotiation itself. As such, it may be helpful to HNLR readers to know more about the show.

The Advocates used a modified trial format to debate what Roger called an “important public trouble,” not in the abstract, but in terms of what Roger called “a decidable question”—a situation where someone, whether a public figure or an individual citizen at home, had to decide what to do. Viewers in the studio audience or at home in their living rooms were invited to weigh in by mail, and during the first season, a remote audience on location somewhere else in the country offered their opinions as well. He saw this as part of an effort to help citizens make “public affairs your affairs.”

The Advocates was produced initially through a joint effort by WGBH in Boston and KCET in Los Angeles, two flagship stations in the public broadcasting network. The Advocates addressed issues ranging from civil disobedience to same-sex marriage. In some cases, the shows are more than four decades old, but many of the issues are still timely.

RogerFisher

            [Above is a photograph of the portrait of Professor Roger Fisher by Polly Thayer given by Professor and Mrs. Fisher in 1992, which hangs in the offices of the Program on Negotiation in Pound Hall at Harvard Law School; Photo by Narine Karapetyan; reproduced with permission from the Program on Negotiation and Ms. Karapetyan. ]

When Roger was later teaching the Negotiation Workshop at Harvard Law School, in which I was a participant, he once said that preparing for trial and preparing for negotiation were very similar, except that in negotiation, “the judge you have to persuade is sitting across the table.”

With The Advocates, you begin to get a clear sense of what he meant, in that the judge was really the viewer at home, rather than an adversary or impartial jurist. On the show, Roger played multiple roles: executive editor and moderator of the show during its first season; then later, as an advocate. I saw some of his multifaceted talent in action while I worked with him on the show during that first season. I took a leave of absence from law practice from 1969-70 to appear in thirteen episodes as a Boston-based advocate on the show, arguing one side or another of the issue which was assigned to me and the producers I worked with.

Over time, The Advocates changed into more of a partisan debate on public questions, often with a regular liberal and conservative advocate, or advocates who were publically identified with a specific issue. While this perhaps made for simpler television, the show may have lost some of Roger’s original mission: to frame public choices as necessarily challenging decisions, with positives and negatives for either course of action, rather than right paths versus wrong ones. This was a preview of his later (and famous) “presently perceived choice,” the idea that something which seems sensible to you might look different to someone on the other side of a dispute.

To learn more about The Advocates, Roger Fisher’s role in it, and some of the lessons the show has for us even after over forty years, you can read my more extensive introduction to the show, The Advocates: a retrospective on an important—and still relevant—innovation in public affairs television, reproduced here on the HNLR web site courtesy of WGBH Educational Foundation, Media Library and Archives, which also includes a link to the WGBH Open Vault website about the show.

The WGBH Open Vault website presents many episodes of The Advocates in their entirety, including a newly added episode in which Roger appeared as an advocate opposite William Kunstler on the subject of civil disobedience to the Vietnam War. This episode was shown by the Program on Negotiation at Harvard Law School at a special presentation on February 28, 2013, in preparation for a special Harvard Negotiation Law Review Symposium on Roger’s legacy held at Harvard Law School on March 1, 2013. The article for WGBH grew out of my introduction to that February 28th presentation. This article includes references to clips from that and several other episodes, and also contains a list of The Advocates shows that were produced, as well as links to those shows which have been made available on the WGBH Open Vault.

While Professor Fisher is no longer with us, we can continue to learn from his example.

Main Article

Related sites, archives or other material relevant to The Advocates, Professor Roger Fisher, or the Author, Professor Lisle Baker

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

 

 

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

Volume 17 Available Online

Volume 17 of the Harvard Negotiation Law Review can now be viewed online. We invite our readers to browse our latest articles and learn more about the range of scholarship we publish:

The Impact of A Grievant’s Offer of Apology and the Decision-Making Process of Labor Arbitrators: A Case Analysis

Daniel J. Kaspar and Lamont E. Stallworth

This article examines what impact, if any, a grievant’s offer of apology has on the decision-making process of labor arbitrations in discipline and discharge cases.

 

Mediation: The “New Arbitration”

Jacqueline Nolan-Haley

This article explores how and why the process of legal mediation has begun to reflect arbitration proceedings, and the implications of this phenomenon.

 

An Empirical Study of Settlement Conference Nuts and Bolts: Settlement Judges Facilitating Communication, Compromise and Fear

Peter Robinson

This article examines the emphasis the settlement judge places on costs and risks, the techniques employed by the judge to encourage compromise, the techniques utilized to facilitate communication between all those involved, and finally the effect of the judge’s persona on the settlement conference.

 

Technology and the Future of Dispute Systems Design

Orna Rabinovich-Einy and Ethan Katsh

This article discusses the separation in the development of Dispute Systems Design (DSD) and the World Wide Web, and argues that the division is holding back the growth of the field of DSD.

 

Does Class Arbitration “Change the Nature” of Arbitration? Stolt-Nielsen, AT&T, and a Return to First Principles

S.I. Strong

The article analyzes the ways in which class arbitration differs from other forms of multiparty arbitration and investigates whether a form of “quasi-arbitration” is in the process of developing as a means of responding to the demands of class proceedings.

 

Power Before Interests in Dispute System Design

Adam B. Kinon

This paper demonstrates why a designer must begin the Dispute Systems Design process with an analysis of power and how that power dynamic may be shaped to allow an interests-based approach to be implemented. It also raises a number of ethical questions to be considered in so acting.

 

Student Note: Managing the Exit: Negotiating an Employment Termination

David P. Zins

This essay suggests strategies to mitigate the difficulties of managing an employment termination, and discusses the importance of doing so effectively.

Welcome

The Harvard Negotiation Law Review (HNLR) is one of the country’s leading journals of negotiation and dispute resolution scholarship. HNLR publishes on a variety of articles related to negotiation, mediation, arbitration, and other dispute resolution topics. The journal also hosts an annual symposium and other events addressing current and noteworthy issues in ADR.

This online component of HNLR features topical articles by professors, students, and practitioners of negotiation and alternative dispute resolution.  Check back frequently for important developments in the world of negotiation/ADR, and comment on the negotiation angle to current events.