By Mylene Chan
The Harvard Law School Program on Negotiation conducted its Advanced Mediation Workshop: Mediating Complex Disputes from July 26-30. Forty-eight participants from diverse mediation practices around the world gathered to attend the July sessions taught by faculty members David Hoffman, Lawrence Susskind, Susan Podziba, Samuel Dinnar, and Audrey Lee.
The program was divided into two parts: (1) a focus on two-party complex mediations with potential court filings, and (2) a focus on multiparty, multi-issue public dispute mediation.
During the first two days, the faculty addressed the main features of two-party complex mediations, such as ethics, breaking impasses, the use of caucuses versus joint sessions, implicit bias, and the art of co-mediation. Many of the concepts are laid out in “Mediation: A Practice Guide for Mediators, Lawyers, and Other Professionals,” by David A. Hoffman and other contributors (Massachusetts Continuing Legal Education, 2013).
The mediation strategy and process design espoused by this faculty is structured on Roger Fisher’s interest-based model, as outlined in the classic “Getting to Yes: Negotiating Agreement Without Giving In,” by Roger Fisher, William Ury, and Bruce Patton (Penguin Books 2011 (originally published in 1981)). The basic principles call for separating people from the problem and shifting from interests from positions.
Their theory is also heavily influenced by the framework of the core concerns explored in “Beyond Reason: Using Emotions as You Negotiate,” by Roger Fisher and Daniel Shapiro (Penguin Books 2005). Core concerns–or emotional interests–are human wants that underlie every negotiation. They include autonomy, appreciation, affiliation, status, and role.
Faculty member Audrey Lee explained that exploring disputants’ core concerns allows mediators to shift the focus to disputants’ real interests and to promote better understanding, thus facilitating agreement.
During the first two days, the workshop participants practiced co-mediating in two cases involving commercial contracts, intellectual property, and employment disputes. Many participants commented that they had never co-mediated, and that they tended to be more driven by positions than interests. Some added that they struggled to be creative in devising ways to expand the pie, noting that they had to turn off their combative litigator instincts and the urge to render advice and advocate.
The program then transitioned from two-party matters to multiparty, multi-issue public disputes. Lawrence Susskind, a leader in the development of public dispute mediation, introduced these complex public disputes, explaining that their form and substance shift. The number of parties can range from as few as 30 to beyond 100, many of whom may be unfamiliar with professional facilitation, and with more parties potentially joining over the course of the dispute resolution process.
An additional challenge, Susskind explained, is that the parties may represent stakeholder groups without full empowerment to speak on the groups’ behalf.
Also, the agenda is likely to keep changing because very often parties continue to reshape or argue about it.
Furthermore, scientific and technical uncertainty and disagreement abound. Examples of these amorphous dispute resolution settings are global treaty negotiations, budgetary negotiations, environmental policy disputes, and public dialogues on issues such as police conduct. A deeper exploration of these issues can be found in “Breaking Robert’s Rules: The New Way to Run Your Meeting, Build Consensus and Get Results,” by Lawrence E. Susskind and Jeffrey L. Cruikshank (Oxford University Press 2006).
Susan Podziba then elaborated on the process she uses in mediating these complex cases. She has worked with the United Nations and individual national governments to resolve intractable disputes with widespread and long-lasting ramifications. She said she begins with an assessment by reading all the publicly available information, followed by discussions with people who have lived through the conflict.
In many cases, parties have not been identified, and therefore, Podziba said she starts by talking to the parties who are obvious, and from those conversations identifying additional parties that should be participating.
Once the first phase is concluded, Podziba develops the process design, aimed at enabling diverse groups to work together to resolve a complex conflict. The process design typically includes constructing five basic building blocks: (1) the product (the form of agreement such as joint statements or MOUs) that will result from the negotiations; (2) the complementary goals that need to be achieved before agreement can be reached; (3) outreach to and consultations with outside experts; (4) trusted information (that is, information from objective sources that can correct biases); and (5) ground rules and logistics relating to the negotiation session itself. For more details, see “Civic Fusion: Mediating Polarized Public Disputes,” by Susan L. Podziba (ABA Publishing 2012).
The faculty prepared three complex public policy dispute mediation role-play sessions for the class. The first one concerned the reconstruction of the World Trade Center after 9/11, involving many public parties such as the New York state government, New York City, and the families of the deceased. Many participants who played the role of the families said that they felt the emotions.
After the day concluded, the faculty arranged for a guided group screening of a training video co-produced by CPR, publisher of CPR Speaks, and Harvard PON on the World Trade Center reconstruction. Details are available on Lawrence Susskind’s website, here.
The workshop participants also mediated the ethical dilemmas surrounding water shutoffs in older U.S. cities. Susskind said that his Massachusetts Institute of Technology research team–he is MIT’s Ford Professor of Urban and Environmental Planning–has mapped where U.S. local governments have shut off water supplies.
After the role-play, many participants inquired about how to gain experience in public policy mediation. Susskind responded that public policy mediators are paid at an hourly rate and discussed the Consensus Building Institute, an international public policy mediation center Susskind founded in 1993.
On the final day of the workshop, Susan Podziba introduced the conflict over the construction of the Thirty Meter Telescope on sacred lands on Mauna Kea in Hawaii–a massive conflict involving foreign countries and many academic institutions. After the simulation, many participants reflected on Podziba’s systematic process design and said that they will incorporate such a design into their mediation practice.
David Hoffman, who is credited with bringing collaborative law to the commercial sector via the firm he founded, the Boston Law Collaborative, ended by urging the attendees to consider being peacemakers:
[T]he opportunities to impact out there in the world exist in every one of those cases, when you think about the infinite dimensions of the human heart, and the opportunity we have when we enter the sacred space of people’s conflicts to heal those wounded hearts. We have a mandate for mediation on a very deep and grand scale.
This Harvard workshop offered veteran mediators an opportunity to have experts critique their trade and to gain exposure to some of the cutting-edge theories and practices of mediation taught at Harvard Law School and its Program on Negotiation.
The author, an LLM candidate at Pepperdine University Caruso School of Law’s Straus Institute for Dispute Resolution, in Malibu, Calif., is a 2021 CPR Summer Intern. She participated in the Harvard program detailed in this post.