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Gateways and Barriers to the Widespreading of Mediation and Restorative Justice

Ignaz Semmelweiss is remembered as the 19th century physician who spotted the link between doctors washing their hands and the level of puerperal fever, which in those days could be fatal, among mothers after childbirth. He had noticed, among other things, that doctors’ wards had three times the level of infection as midwives’ wards in the hospital where he worked in Vienna. He proposed that doctors should wash their hands with a chlorinated lime solution and studies soon showed that handwashing drastically reduced the level of infection.

But this was in the days before Louis Pasteur’s theory of germs and Joseph Lister’s hygienic practices, and Semmelweiss couldn’t adequately explain why handwashing seemed to work. Semmelweiss’s idea was rejected by the medical community, with some being offended by the idea that gentlemen should have to wash their hands. Only later did handwashing become accepted as a simple and effective way to prevent infection.

New ideas are not accepted just because they are good ideas. In fact, it seems that we humans are designed to reject new things if they challenge our opinions and beliefs about what works.

Examples of more recent medical/scientific discoveries that have taken many years before acceptance include Dr Alice Stewart’s discovery of the harm to the foetus of x-raying pregnant women and, of course, the health damage caused by cigarette smoking and asbestos fibres.

If our cognitive processes can reject and even ridicule life saving discoveries which are scientifically proven, then what hope is there for mediation and restorative justice to gain more widespread acceptance?

There is a view that using power to resolve conflict is more hard-wired into human beings than co-operation or resolution by peaceful means. Though taking a long-term view of the history of the human race we simply could not have survived as a species from our early evolution if there was no co-operation. Evolutionary game theory seeks to apply game theory (such as Prisoners’ Dilemma) to evolving populations of life forms in biology. One of the classic games is Hawk-Dove which suggests that a mixed response (sometimes fight, sometimes avoid) is the most stable equilibrium strategy. If this is so, why do we seem to jump so quickly to the fight response ?

Some work by Daniel Kahneman and Jonathan Renshon on hawkish (prone to fight) and dovish (prone to use diplomacy) behaviour in international relations may help to explain this. They examined a list of biases - predictable cognitive errors - from over 40 years of psychological research and discovered that ALL the biases work in favour of hawks. They concluded that this leads to an exaggeration of the bad intentions of adversaries, a misjudgment of how the adversaries perceive them, being overly optimistic of prevailing in difficult circumstances when hostilities start, and reluctant to make necessary concessions in negotiations. Such biases make wars, and other forms of conflict, more likely to begin and more difficult to end. (See, for example, Kahneman, D. and J. Renshon (2007). "Why Hawks Win." Foreign Policy (158): 34-38).

Wars and conflict get attention, but the many ways that we co-operate peacefully every day are often ignored or forgotten. Think of the millions of families who live together, the people in villages, towns and cities who collaborate daily, the sports teams that join together to reach a common goal and multinational corporations successfully combining diverse specialist skills with multiple nationalities, languages and time-zones.

Or perhaps a more extreme example of co-operation is needed to balance the weight of bias in favour of fight? For years Dr Izzeldin Abuelaish, a Palestinian gynaecologist, worked in an Israel hospital while living in the Gaza Strip. He was committed to dialogue as a way of bringing peace and understanding, and collaborated with friends and colleagues on both sides to bring about reconciliation and improve relations. Then one day in 2009 a shell fired from an Israeli tank hit his home, killing three of his young daughters. The grief must have been unbearable. What was his response? Rather than blaming and seeking revenge he doubled his efforts to bring about peace, calling for the people of the Middle East to stop fighting and start talking to each other. The charity he set up in memory of his daughters - The Daughters for Life Foundation – has a vision to create a peaceful world through the power of education. (See www.daughtersforlife.com).

Or consider Costa Rica, whose president, Jose Figueres, disbanded the country’s military in 1948, thereby freeing up large amounts of the budget for healthcare, education and environmental protection. Remember, that was just three years after the end of World War II and must have seemed extreme madness at the time by many. Yet today the country has reaped the reward of such a far-sighted political decision.

While in-built biases are a barrier to the more widespread adoption of mediation and restorative justice, gateways are illuminated by stories like those of Dr Abuelaish and the pioneering decision made in Costa Rica. Yet, these stories also need to be spread so that more people hear of them.

Malcolm Gladwell in his ground-breaking book, the ‘Tipping Point’, provided an explanation for how an idea spreads, reaching a critical mass and then going over the ‘tipping point’ to increase exponentially and rapidly.(Malcolm Gladwell. The Tipping Point: How Little Things Can Make a Big Difference. Little Brown, 2000)

Gladwell noted three critical change factors that were involved: ‘the law of the few’, the ‘stickiness factor’ and the ‘power of context’. Whenever these three factors came together successfully it resulted in a sudden widespread acceptance of the new product, idea or social trend, seemingly from out of nowhere. Examples he pointed to included the popularity of Sesame Street, the revival of Hush Puppies shoes and the drop in the crime rate in New York city after 1990.

Under the ‘law of the few’ were what he called ‘Connectors’, ‘Mavens’ and ‘Salesmen’. ‘Connectors’ are people who have multiple contacts and act as a network hub to move the idea quickly and widely – they are linkers. ‘Mavens’ are information specialists who accumulate knowledge and are passionate about sharing what they know. ‘Salesmen’ are charismatic persuaders and negotiators. If such people are at work spreading good news stories about mediation and restorative justice then perhaps these will open a gateway towards wider acceptance.

Looking at Gladwell’s two other change agents – is there something memorable about mediation and restorative justice that provides a ‘stickiness factor’ and is the Zeitgeist , or spirit of the times, particularly sympathetic to this idea and this work? It does seem that the world had been moving towards resolution – note events in Northern Ireland, East and West Germany and South Africa. Though in very recent years it is more difficult to see such examples with news media crammed with ‘terror’ stories which create fear and suspicion rather than openness and reconciliation.

One criticism of Gladwell’s book is that he was skilled at describing things that have already happened in terms of his theory but was unable to successfully predict the factors that would lead an idea to cross the tipping point. There were further criticisms, most notably from Steven Levitt who proposed that there could be some primary causal factor that isn’t that obvious (Steven Levitt and Stephen J. Dubner. Freakonomics: A Rogue Economist Explores the Hidden Side of Everything. William Morrow, 2005). For example, he suggested that the ruling in the Roe v Wade court case (410 U.S. 113 1973) leading to a reduction in the number of unwanted children, coupled with a substantial increase in the number of police on the streets, may well have been the cause for the decrease in crime in New York city.

Nevertheless, despite criticisms, the Tipping Point does demonstrate some useful gateways for spreading the word.

Arthur C. Clarke wrote : “Like all revolutionary new ideas, the subject has had to pass through three stages, which may be summed up by these reactions:

(1) “It's crazy - don't waste my time."

(2) “It's possible, but it's not worth doing."

(3) “I always said it was a good idea."

(Arthur C. Clarke. Report on Planet Three and Other Speculations. Harper & Row, 1972).

We appear to be well past the first period, as evidenced by the many practitioners in different sectors, the popularity of training courses and academic qualifications, and the many successful outcomes achieved through two-party and multi-party mediations. We are certainly not in the last period, at least not in terms of the majority population. That means we are most likely in the middle period with a lot of selling and convincing to be done to move minds into believing that it is worthwhile to embrace mediation and restorative justice.

Perhaps another in-built cognitive blindspot may be our attraction to dualist thinking – mind or matter, good or bad, up or down, fight or flight. Is this why mediation is seen by some as ‘soft’ and the adversarial way as ‘hard’? “If you’re not with me you’re against me?” Such limited thinking surely backs away from the ‘risky unknown’ and is pulled towards the opposite, ‘less risky, known’. It’s the equivalent of the IT Manager in the 1960s who knew he wouldn’t be fired for buying IBM computers – the normal, conservative and risk-free decision.

We know that human experience is more complex than dualistic thinking allows for, and triadic thinking at least introduces a third way. For example, where ‘conformity’ is about always doing what is established and ‘non-conformity’ is about rebelling and never doing what is established, we can add ‘counter-conformity’ which is about choosing whether to conform or not to conform, depending on the situation. Triadic thinking allows for fight, flight or resolve, and presents a possibility for a third way to be considered equally with the first two. Under dualist thinking there simply wouldn’t be a ‘resolve’ option.

As with all new ideas, a trait we need in spreading the message about mediation far and wide is courage.

So perhaps a good quote to finish with is from Ralph Waldo Emerson, who questioned societal norms and heavily influenced Henry David Thoreau whose ideas about environmentalism, civil disobedience to an unjust cause, and the abolition of slavery were well ahead of their time:

“Whatever you do, you need courage. Whatever course you decide upon, there is always someone to tell you that you are wrong. There are always difficulties arising that tempt you to believe your critics are right. To map out a course of action and follow it to an end requires some of the same courage that a soldier needs. Peace has its victories, but it takes brave men and women to win them.”

 

By Brendan Schutte, Mediate.com
March, 2015

TESTIMONIALS

Thorburn Holdings (Pty)Ltd
"We would like to thank and congratulate everybody from the Mediation Centre involved with the conflict management training of our administrative staff on the 26rd March 2013 on a job well done. Everyone was impressed by the efficiency, knowledge and the manner in which they were equipped with the necessary tools to handle potential conflict resolutions in the future.
 
Our return on our investment can be seen in the increased productivity, teamness and positive atmosphere in the workplace. There is an excitement amongst them in anticipation of the follow-up training scheduled for mid June."

Connie Theron, Practising Attorney - UCT Law Clinic
“While working at the University of Stellenbosch Legal Aid Clinic and later at the UCT Law Clinic, I found the pro bono mediation services of Sandra Hitchcock and Gerrie van der Watt of the Mediation Centre to be highly professional and extremely effective in our divorce matters. It is fantastic that our clients, with little or no financial means, can benefit from such an excellent programme.

The mediators are able to provide a non-threatening environment in which the clients are able to talk openly about issues that matter most to them, but which the Court in a divorce matter may choose not to entertain. Through the mediation sessions, the clients are able to reach an agreement together which ultimately they are both happy with. In cases where mediation did not yield the result of a settlement, the process was still extremely valuable, giving the parties better perspective and highlighting the key issues in dispute.”