Lines in the sandPublished 9:22pm Monday, February 4, 2013
By Kermit Hobbs
A few years ago, when I was approaching retirement from my regular job at Amadas Industries, I figured that when that time came, I would need something meaningful to do with all the free time I was expecting. I heeded the suggestion of a friend and became a Virginia Certified Mediator.
The job of a mediator is to act as an impartial third party to a dispute, to facilitate discussion and to help the two parties reach a satisfactory resolution to their problem. The mediator does not make rulings or impose solutions. The resolution, or the lack of one, is all in the hands of the two parties.
Being certified by the state of Virginia means I can mediate court-referred civil lawsuits, and whatever agreement the parties reach becomes legally binding. If there is no agreement, then the case goes back before the judge.
After three years and more than 50 mediations, I’ve learned quite a bit about avoiding and resolving conflicts. One of the key points is to guide the conversation, as much as possible, so neither party makes a hard-and-fast statement staking out a position that leaves them no “wiggle room.”
“I demand $1,000 and not one penny less!” or “I’ve lived up to every word of the contract, and I won’t give an inch!” are examples of what I’m talking about. Once this happens, it is very difficult to reach an agreement, because it usually means that one or both parties will have to “lose face.”
The approach that the mediator takes is to ask questions that help people bring out their deep-rooted interests as to what they want to accomplish. This helps both sides to understand each other better. I like to think that this is the highest possible form of communication, and it is surprisingly effective in finding common ground that can be exploited to bring about a resolution to the dispute.
Another technique is to raise questions to reveal commonly accepted rules of behavior that might bear on the case. Such questions might include, “How are security deposits generally managed in landlord-tenant situations?” or “What sort of warranty is customarily offered in home repair contracts?”
The point is to get beyond the initial “positions” of the two sides and enable them to base an agreement upon generally agreed-upon principles. This can be an effective approach to problem solving.
Lately I’ve been thinking about how these principles might relate to the seeming inability of the U.S. Congress to reach consensus on any issue.
The conditions preventing agreement in congress are the same as they are in the courtroom. We often hear a “line in the sand” has been drawn to define the position of one or both sides in a debate. It is important for positions to be expressed in a form that is understandable to the public, but defining them so starkly means any compromise will be publicly viewed as a defeat. It’s the worst possible environment for intelligent negotiation.
Principled negotiation is difficult in Congress. I can’t always blame individual members of Congress, whose actions reflect the interests of their constituents. The real problem here is that the American public has become so polarized that even “generally accepted” principles of behavior are hard to find.
The last question is about the effectiveness of communication between opposing factions in Congress. It often seems that everyone is talking there, but no one is listening. Perhaps the air is being clouded by their underlying desire for political power. If this is indeed the case, then neither problem-solving nor public confidence is well served.
In a court mediation setting, if the parties do not reach an agreement among themselves, then the case goes back to the judge, where it will be settled, with a clear winner and clear loser. The case will not drag on indefinitely.
In Congress there is no such guarantee, and meaningful progress in finding a resolution often stops with a line in the sand. Unfortunately, we’re all too familiar with that scenario.
We deserve better.
Kermit Hobbs Jr. is an accomplished Suffolk historian and businessman. Email him at firstname.lastname@example.org.