By Doug Noll
I use the term peacemaking to describe the values and processes involved in transforming difficult and intractable conflicts. Peacemaking encompasses mediation; however, mediation, especially mediation of litigated disputes, does not necessarily include peacemaking. Knowing the difference is useful because it can influence the processes and interventions used by mediators.
Ten Principles of Peacemaking Guide Me In My Day-to-day Work With Conflicts
Peacemaking seeks long term, sustainable solutions rather than polite agreements or uneasy and fragile truces to difficult conflicts. Sometimes, settling a case is not enough. Although the law transmutes all conflicts into the exchange of money, that transmutation is sometimes unsatisfactory for people. Thus, recognizing when money is not the only issue is a central aspect of peacemaking. The other challenge in peacemaking is its emotional difficulty. Many times, people avoid the challenging work of confronting conflict by layering over the problem with a superficial, nice fix. Peacemaking takes on the painful and sometimes frightening aspects of conflict directly.
At the international level, we see a general failure of peacemaking because the conflict mediators are either unwilling or unskilled at dealing with deep conflict. In the Kenyan election crisis of 2008-2009, Kofi Anan mediated between Kibaki and Odinga over a disputed presidential election. These two leaders had been in personal conflict with each other for decades. As a result, their respective tribes benefitted when they were in power and suffered when they were not. Rather than take the time to look at the deep conflict dynamics that these leaders represented, Anan stayed with a superficial political solution. The power sharing arrangement that resulted was so bad that many predict Kenya will face genocide during the 2012 elections. This is a direct result of the mediator not seeking a sustainable solution. Instead, he looked for the fast, expedient politically safe Band-Aid. Interestingly, he abandoned the mediation process in 6 weeks, turning it over to a university professor who was equally unskilled in mediation. The entire process was canceled in June 2009 leaving the underlying structural injustices unresolved.
In peacemaking, truth-telling and truth-seeking are honored, integrity is valued, and trust is given because it is earned. People learn in the peacemaking process to speak from their hearts and minds what they have personally experienced. They are honored for revealing difficult truths when they could brush over them. The peacemaker instills this value in the process and insists on a commitment to truth telling from everyone participating in the process.
This is sometimes antithetical to the typical lawsuit mediation, where truth goes out the window as everyone tries to game the mediator. Sometimes, the gaming works; sometimes, it hurts the parties because their needs for validation, vindication, and to be heard are ignored by the lawyers. One of the unintended consequences of the mediation of litigated disputes is that the process becomes all about the money and other valuable aspects of the process are abandoned. My colleague Ken Jaray is talking with high level insurance company executives to see if they would agree to a more humane, peaceable mediation process. In that process, which I have called restorative mediation, the people affected by the accident would talk to each other. Only after they have spoken with each other would the process turn to a negotiation over a monetary settlement. As we have seen in victim-offender mediations, we would expect a dialogue between an insured and a victim to provide a deeper, more honest conversation that would help everyone understand the nature of the problem. We would normally not expect agreement, especially when liability is contested. We would expect benefits from sharing stories about what happened and what the effects of the accident have been on everyone involved. Humanizing the people has a value unto itself.
Peacemaking offers an opportunity to explore and discover that which is as yet unimagined. In many conflicts, the conflict issues are forbidden subjects to talk about because the anxiety of dealing with them is too uncomfortable. Peacemaking allows that anxiety to be contained and managed. As a result, people sense relief at being able to talk about issues that have irked them, sometimes for years. Furthermore, peacemaking allows new visions and ideas about relationships to be explored and perhaps created. The process permits discovery of ideas and solutions that before seemed unimaginable. I am always amazed by lawyers who do not let their clients tell their stories in mediation conferences. The lawyers are so focused on collecting money for their clients that they lose sight of the fact that they are servants, not masters.
Mediation is often the only time a party is allowed to speak without interruption. The procedural justice research tells us that people experience justice when they have been heard by a trusted authority figure. The outcome is not nearly as important as the process. Many lawyers have a different view of this, believing that outcome is everything. And, it is important. However, if peacemaking is one of the goals, allowing parties to have their voice is critical.
Peacemaking techniques are creative, exploratory, and filled with the risk, fear, and excitement of discovery. Jeff Krivis likes to tell a story where he intentionally stepped into a waste basket and tripped. The humor of the moment lightened the room. Jeff also talks about mediation as improvisation. Being a jazz violinist, I know exactly what Jeff is talking about. When you improvise, whether in comedy or music, you never know what is going to happen. The excitement of improvisation is the anxiety of unknowing and the discovery of the new.
Like improvisation, peacemaking is a fearful undertaking because no one, not even the peacemaker, knows where people will end up. Once the process is underway, however, the fear generated from the anxiety is transformed into the fear of discovery, which creates a certain excitement in people. It’s just like playing jazz violin. I think Jeff would say the same about comedy improv.
Peacemaking is a refuge–a safe haven from the incivility and outright nastiness of conflict. Conflict can be nasty and brutal. Very few people enjoy the emotions invoked by conflict situations. Peacemaking processes create an environment of safety and security where the conflict issues can be dealt with carefully and respectfully. In mediations around litigated disputes, I am struck by the level of incivility between counsel and between counsel and opposing parties. I do my best to de-escalate the incivility. At least for one day, people ought to be in a process where they are emotionally safe from personal attack. Overcoming the cynicism is challenging, but that does not mean that I give up on people.
The peacemaker is charged with the sacred duty of creating a refuge where people from different backgrounds know they will be heard and understood, where their needs and ideas will be respected, and where they can safely do the difficult work of reconciling their differences. This is a primary value difference between peacemaking and other forms of conflict resolution. The peacemaker takes on the obligation of protecting everyone, seeing that all are given equally high respect and dignity, that all may fully express themselves or not as they wish, all in a place where there will be no personal attacks, insults, or other emotional or physical violence of any sort.
The peacemaker must create a place where people are able to approach, rather than freeze, flee, or fight. Peacemakers, knowledgeable in the neuropsychology of fear, always recognize the importance of the environment on preconscious brain processes. Peacemakers are therefore charged with the duty of controlling environments that allow people to approach one another, rather than to defend against one another.
Peacemaking seeks to disenfranchise, or confront in a process of controlled escalation, those who seek unfair advantage, who exploit racial or class or gender differences, and who prefer to maintain disparities that favor themselves. Justice is a core value of peacemaking. Resolution without justice does not resolve conflict; it is simply a demonstration of which party holds greater power. A peacemaker’s values and integrity may require that the process be shut down. Some conflicts are such that they must be escalated before peacemaking will be possible. The peacemaker recognizes this and therefore does not sacrifice justice for expediency.
On the other hand, a peacemaker is not a judge. Maintaining non-judgment and non-reactivity is important. So one of the great challenges of peacemaking is balancing non-judgment against the cry for justice; non-reactivity against obvious unfairness or wrong-doing. This is why peacemaking is some of the most difficult work a human being can be called to do. It is relatively easy to opine about who is right or wrong or to be a carrier of offers and counter offers into different rooms. It is much more difficult to remain balanced in the face of heinous acts, and to help people work out their differences.
Peacemaking involves risks, not the least of which is failure. No guarantees can ever be made that peace will be restored between parties. Every conflict contains the seeds of further escalation that may take root despite the best efforts of everyone. However, the risk of failure is never a deterrent to the attempt at peace, especially when peace seems hopeless. The tension against this value is knowing that lawyers rate mediators on how effectively the mediators settle cases. Satisfying the true client, the referring lawyer, is important. Thus, professional mediators who primarily work with litigated disputes have a distinct self-interest in not failing. A bad settlement is better than no settlement. However, when this tension becomes out of balance, mediation can be a miserable experience for everyone.
Peacemaking requires tremendous courage by those faced with difficult conflict. Conflict causes people to fear others as well as themselves. What people detest in others is what is inside of them. Thus, to confront others is to confront the same thing within. People know this intuitively, but cannot articulate it. This fear is why so many people avoid peacemaking—they do not have the courage to face themselves, their secret inadequacies, and their deepest fears.
I am criticized by some segments of the bar for being a lawyer turned peacemaker. Lawyers sniff at my work, saying that peacemaking is for sissies or words to that effect. They seek mediators who, like them, will knock heads, and see mediation as a competition to be won or lost. Being a second-degree black belt and former trial lawyer, I can do that too. However, I choose, when I can, to take the more difficult road. When done correctly, peacemaking is not easy nor is it soft; it is some of the most satisfying work a human being can ever experience. Those moments when reconciliation occurs are transcendent and are what cause me to work even harder in the next conflict for the people who choose me as their peacemaker.
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