by

Carrie Menkel-Meadow

March 15, 2022

Conflict resolution professionals must be optimists. We hope that with our expertise, knowledge of conflict theory, and experience from practice we can facilitate productive lines of communication between and among those who are in conflict, or who differ in values and preferences, and, in the best of circumstances, help people to come to mutually beneficial arrangements in their relationships or solutions to their problems.Like others in our field, I have staked my life’s work on the notion that “process is the human bridge between justice and peace” (Menkel-Meadow 2006).

Yet, a few years ago (pre-COVID, but after Trump’s election), in a more pessimistic tone, I suggested we were in almost unprecedented difficulty in a polarized polity where people could not hear or listen to each other across political, religious and even within familial groupings (Menkel-Meadow 2018). A Google search around that time would net a reader thousands of inquiries about how to deal with conflict, polarization and political, as well as family disputes (e.g., how to have a Thanksgiving dinner with Democrats and Trumpers). Professional political scientists, psychologists and sociologists, (e.g., Haidt 2013; Iyengar & Westwood 2015) as well as interdisciplinary conflict resolution scholars and practitioners scoured the data looking for patterns, explanations and possible avenues for reducing unproductive cleavages in our discourse and actions. Mediators and lay dispute resolvers presented tools for facilitating conversations across differences (e.g., Essential Partners, In the Living Room), mostly in small, more manageable interpersonal groups, while I worried about how our methods could or could not be scaled up to larger social and political levels (Menkel-Meadow 2011).

Guy Burgess, Heidi Burgess and Sanda Kaufman have written a magisterial essay, both diagnosing some of our current polarization ills and providing some rationales (complexity, evolutionary, environmental and organizational development theories and practices to be combined with conflict resolution theory and practices) for suggestions for some amelioration of these social and now world-wide issues.I support and applaud this essay and its suggestions. I offer here some other observations based on my own work as a problem-solving scholar and practitioner, with an interdisciplinary background in law, political science and sociology, as well as conflict resolution.

First: Some comments on diagnoses and causes:

1. A culture of adversarialism, binarism and escalation:  Much of my work as a legal scholar has been to urge the reduction of debate, reductionism, brittle binary (win/lose) thinking and legal outcomes (Menkel-Meadow, 1984). This culture, aided and abetted by popular media depictions of courtroom dramas, sports and military metaphors and real battles has influenced not only our own political parties but much of the world’s competing ideologies and religions (is competition and scarcity thinking inevitable for all human beings? I don’t think so, says the optimist). Social psychologists have long documented that once a conflict escalates, de-escalation is far more difficult (Pruitt, Rubin 1986). That is where we are now-in a state of seemingly permanent escalation- a tough problem to reverse. Even so called “progressives” are escalating with “cancel culture” and dogmatic, almost Orwellian “right thinking” (e.g., “if you are not for abolition of prisons and all police you cannot call yourself a progressive”).  In our conflict resolution lexicon this leads to “reactive devaluation” (or demonization)—if you are labeled in a particular way (progressive or “right wing”) you will not be heard at all by others who are “on the other side.”  Note the binary thinking on so many issues.
    
2. Current tensions between group and individual identity. In the current environment people are “blue” or “red”, left or right, racist or anti-racist, masked/not masked, vaccinated or not, and see their identities as the sole source for a host of views on particular issues. [Bless you John McWhorter whose opinion columns in the New York Times and Persuasion (2021, 2022) are a model of complexity of views and deep exploration of sources of historical knowledge and cultural criticism (see e.g., reviews of West Side Story, Sidney Portier’s speech and accent, classical music, and the uses of the ”n” word and “they” as a pronoun.] History is complicated, usages change and not everyone shares the same cultural, racial, ethnic or gender identities for all things.  We are individuals and members of group(s) at the same time. [Bless you Amartya Sen (2007) for recognition of multiple identities in a cosmopolitan world, in which multiple identities should increase, not diminish, our worldviews, empathy for difference and ideas for problem solving from different sources]. To solve some of our polarization problems, we will need to decouple all group monolithic identity from recognition of some individual differences.  On the other hand, a belief in the well-being of the collectivity (the human race) is essential to our survival and flourishing (and cultures that put some group solidarities ahead of unmitigated individualism do better on some issues (e.g., COVID responses) than overly individualistic societies, like the United States.
    
3. Participation in rules that govern us is essential. Though the “bad actors” that are trying to subvert many democracies are dangerous they do have some legitimate grievances. Jurgen Habermas’ (1998) theories about deliberative democracy tell us that “the acted upon” want to participate in the rules and laws that affect them. Much of the “anti-elite” sentiment, called (wrongfully in my view), “populism” (what is that if the people think different things about different issues?) is a feeling about remote decision makers or those who have “succeeded” under current conditions, leaving others behind.  What would it take for large scale societies to really involve “the acted upon” (empowerment, decentralization, more, rather than less action in “affinity groups? (This is an irony and “wicked problem” for large scale democracies).
    
4. The notion that “compromise” is bad, and we must stick to our principles.  Party discipline, reactive devaluation, group identity and commitment to our sacred values or “brands” (I have them too- equality, feminism, secular humanism, care above profit) creates environments (in Congress, in faculties and student organizations, in religious organizations and in private corporations) in which it is regarded as immoral to “concede” anything to “the other side.”  I have argued in many places that compromise (Menkel-Meadow 2016) is itself morally compelled—we could not live on this earth, with all of our complexity, diversity and differences, if we did not see the “humanity” in the other to sometimes “give a little, to get a little.”  I do not endorse compromise as a “split the difference” outcome, but a sensibility of approaching others to find as much mutual gain as is possible for co-existence, though I do prefer looking for new resources, more creative solutions and ideas outside the realm of assumed scarce resource competition.

Second, now on to some suggestions and solutions:  I mostly endorse and agree with Burgess, Burgess and Kaufman’s analyses of what we conflict resolution people can learn from different disciplines and metaphors: evolutionary biology, chaos and complexity theory (“wicked problems” are always dynamic and multi-faceted), climate change science and that we should move away from engineering (machine and component “repair”) and “single fix” solutions. They offer medicine’s triage approach as a better metaphor—fix the most pressing problems, then look at more systemic “treatments” (diet, exercise for the whole body?), if not “cures.” Well, I want to suggest conflict resolution and productive work on polarization needs its own metaphors and disciplines. I offer the following comments and reactions:

1. Interdependence of all of us. Instead of a competitive “winning,” with the inevitable accompanying loss of some, approach to all of life, how about re-orienting how we see each other. Long before COVID, Hillary Clinton argued for her more universal health care plan by offering anecdotes of how children were getting infectious diseases (and lice) at day-care centers, schools and on public transportation where people of many ethnicities, classes and health care habits had to interact with each other. “Germs” don’t know class.”  They move around and spread among everyone (as we learned only too well during the COVID pandemic. We all need to think of each other in getting health care and making it accessible for everyone.  I am suggesting a massive re-orientation of all socialization and education (not just conflict resolution education (“use your words”) in primary and secondary education), but a massive re-orientation of how we teach—let’s solve this problem together (business school-like joint case problem solving and decision making (and group grading!), not just who is “best.”   As many of us have suggested, we need more success stories of problems solved, conflicts, if not “resolved,” then well handled—we need new metaphors, examples and stories (and to see the great complexity in our past stories—many “origin” stories and myths are not accurate and need re-telling). We need to make conflict resolution and working together “cool”—how about mediation memes and movies, rather than “Avengers” and constant combat or “Games of Thrones”? (I have long hated the use of the term “game” theory in our field. Life is not a “game”—it is serious and how we treat each other may be strategic but it also should be ethical, not a ploy or a joust.
    
2. Not debate—curiosity and learning. I do not agree with Burgess, Burgess and Kaufman’s suggestions to encourage “Constructive Debate Leagues”. As a lawyer and legal educator, I have long opposed debate. Most concepts and controversies (and yes, even lawsuits) have more than two sides. The original McNeil-Lehrer News Hour distinguished itself by offering three or four commentators on every issue (unlike Nightline which seemed to seek out two opposing views on particular subjects). If we are going to reduce polarization and begin to engage in productive problem solving, we need more of the original Public Conversations protocols:  What are you unsure about in your own thinking? What more information would you need to understand your own views and that of others? What are the sources of your views? Can you imagine others? Are there multiple points of views? Not just two?
    
3. Context, process pluralism, humility, contingency and adaptive processes. So, my favorite disciplinary approach is sociology—what is the variability of human behavior and what are the conditions which affect human agency? What is structural and what is more subject to individual or group agentic change (social protest as well as deliberative democracy). My answer to that as a lawyer, legal scholar and conflict resolution professional is that “one size does not fit all.” Yes, we need to categorize, but not all things fit neatly into quantitative or qualitative “cells.” In scaling up methods of discourse and engagement we need to be context sensitive and processually diverse—in the words of Maurice Rosenberg  (dispute resolution and civil procedure scholar)—the “forum should fit the fuss” (Rosenberg 1987).   Different kinds of disputes and conflicts should be subject to different kinds of processes and outcomes. As “wicked problems” and “user innovation“ in technology (Harhoff & Lakhani 2016) tell us, our ideas and suggested solutions to problems should be “contingent” and changeable (as new facts and information comes in, as “adaptive management” is used in environmental problems (Camacho 2009). When should “solutions” to human problems be “crowd-sourced” (with open and mass communication systems) and when do we get into trouble with aggregated solutions (artificial intelligence uses for predictive (and often underinclusive or overinclusive decision making (Eubanks 2018)? In short, we need better analysis of what kinds of processes are best suited to the kinds of problems our polarized societies need to solve—what requires society wide legislative action (which is often a compromise process when it works), what requires more empathic, mediative interpersonal processes (more emotional processes), when do we need authoritative (and legitimate) decisional processes, calling out that which is evil (racism, cruelty, human rights violations) and when do we need more experimental, contingent processes for trial and error (and re-invention and evaluation).  Is it oxymoronic to suggest that deliberative democracy processes need experts/leaders who can manage such processes, or do we learn to get along by learning without leaders (consider the failure of Occupy Wall Street which eschewed hierarchical leadership).

Below I replicate some earlier work suggesting how different Modes of engagement in conflicts, structured by different kinds of needs for different solutions, might influence our analysis of how to engage with each other in more complex, but more satisfying ways, making use of our brains (using principles and reasons), our stomachs (what can we digest in compromises or other contingent solutions) and our hearts (care for others and ourselves):

Principles = reasons, appeals to universalism, law, justice; Bargaining = interests, preferences, trading, compromises

Open = public or transparent meetings or proceedings; Closed = confidential, secret process or outcomes (settlements)

Plenary = full group participation, joint meetings; Committees = task groups, caucuses, parts of the whole

Expert-facilitator = led by expertise (process or substantive or both) Naturalistic = leaderless, grassroots, ad hoc

Permanent = (Organizational, institutional), Constitutive = constitutional; Temporary = ad hoc groups or disputants

Some predicted effects of process on outcome:

    Closed = (confidential) proceedings allow more expression of interests, needs and passions = more “honest” and candid, allow more “trades,” less posturing, open to vulnerability

     Open (transparent) proceedings require more principled/reason justifications, produce more rigidity.

4. Education, education, education in Conflict Resolution and Dispute System Design and human decision making.  So, I endorse and agree with almost all (not debate leagues!) of the “multiple/parallel approaches” to reduction of polarization suggested by Burgess, Burgess and Kaufman, but as all of these suggestions are pursued, I do think at least one thing is essential—early early and continuing education for all human beings in conflict resolution, peacemaking, dispute handling (note I did not say resolution) design and decision making. If we could begin to offer different metaphors for how to get along with each other with skills enhancement (not training but continuous teaching and education) at every stage of human development, we might make some progress for human flourishing. We need to understand different models of decision making and voting (not everything should be subject to simple majority voting (or the Electoral College) and we need layered understandings of such concepts as equity, equality and fairness—they are not always the same thing.

As John Paul Lederach so poignantly stated some years ago, touching the hands of his grandparents and grandchildren, it would take at least 100 years to change our orientations to conflict and each other. I hope we have enough time left to learn how to really listen, explore our needs and interests and search for solutions that enhance human flourishing, rather than diminish it.  We need process education, and we need, in my view, to proceed incrementally and contextually—there is no single magic here.  We need cross-issue and cross-identity task groups and alliances on particular issues, not agreement on everything. Democracy is messy and we need more than majority voting to solve our political and social problems. If we don’t learn to make lemonade or lemon pie out of lemons together our lives will be quite bittersweet. I guess the optimist in me is still hopeful and I thank Heidi Guy and Sanda for giving us some recipes.

References

Camacho. A. (2009). Adapting Governance to Climate Change: Managing Uncertainty Through a Learning Infrastructure. Emory L. J. 59: 1-77.

Eubanks, V. (2018). Automating Inequality: How High-Tech Tools Profile, Police and Punish the Poor. St. Martins Press.

Habermas, J. (1998). Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Cambridge, Mass. MIT Press.

Haidt, J.(2013). The Righteous Mind: Why Good People are Divided by Politics and Religion. New York: Vintage Press.

Harhoff, D. & K. Lakhani. (2016). Revolutionizing Innovation: Users, Communities and Open Innovation. Cambridge, Mass: MIT Press.

Iyengar, S. and S. Westwood (2015).Fear and Loathing Across Party Lines: New Evidence on Group Polarization. Am. J. Pol. Sci., 59: 690.

Lederach, J. P. (1998). Building Peace: Sustainable Reconciliation in Divided Societies. Washington D. U.S. Institute of Peace.

McWhorter, J. (2022). Why I Still Love West Side Story. New York Times Opinion, Jan. 11, 2022.

McWhorter, J. (2021). Why Woke Ideas Harm Minority Communities. Persuasion. Persuasion.community/p/mcwhorter. Dec. 4, 2021.

McWhorter, J. (2021). How the “N” word Became Unsayable. New York Times. Opinion, April 30, 2021.

Menkel-Meadow, C. (2006).Peace and Justice: Notes on the Evolution and Purposes of Legal Processes. Georgetown Law Journal, 94(2): 553-580.

Menkel-Meadow, C. (2018).“Why Can’t We All Just Get Along?”: Dysfunction in the Polity and Conflict Resolution and What We Might Do About It.J. of Disp. Resolu.  2018 (1): 5-25.

Menkel-Meadow, C. (2016). Ethics of Compromise in Global Encyclopedia of Public Administration (A. Farazmand, ed.) Springer.

Menkel-Meadow, C. (2011). Scaling Up Deliberative Democracy as Dispute Resolution in Health Care Reform: A Work in Progress. Law & Contemp. Problems, 74(3): 1-30.

Menkel-Meadow, C. (2003). Dispute Processing and Conflict Resolution: Theory, Practice and Policy. Ashgate Press.

Menkel-Meadow, C. (1984). Toward Another View of Legal Negotiation: The Structure of Problem Solving. UCLA L. Rev. 31: 754-842.

Pruitt, D. & J. Rubin. (1986) Social Conflict: Escalation, Stalemate and Settlement. New York: Random House.

Rosenberg. M. (1987-88). Resolving Disputes Differently: Adieu to Adversary Justice. Creighton L. Rev. 21(3): 801-822.

Sen, A. (2007). Identity and Violence: The Illusion of Destiny. New York. W. W. Norton.