A couple years ago, my son’s cell phone stopped turning on. Of course, this immediately became a major crisis in our family (I was repeatedly and emphatically informed that long snapchat response chains were at risk), so as the family nerd, I was put on the case. Some quick diagnosis made clear that it wasn’t a fixable issue on my end (it may or may not have gotten wet in the rain once or twice, the facts were fuzzy), so I had to reach out to the manufacturer to explore what solutions might be in the realm of the possible.
Of course, the phone had gone out of warranty just a few weeks before it died. I dialed the customer service line to plead my case. After making my way through a maze of voice prompts, I reached an agent who, after hearing my sob story (we’re so close to the expiration date!) was kind enough to green light my request. We began the surprisingly in-depth process of getting a replacement. I had to fill out forms detailing the issues experienced, send in purchase receipts, as well as take photos of the phone from all sides. It took a couple calls, but I had the direct number for the agent in question, and he was very helpful in getting me through the steps. Finally, he gave me word that everything was in order, and a new phone should be sent out in a week or two.
I took the victory lap with my wife. I took the victory lap with my son. I recall them toasting me at dinner. I beamed with nerd pride.
However, a week passed and no phone came in the mail. Then another week passed. I dreaded re-opening the negotiation, but it was unvoidable. I called the direct number for the friendly agent I had worked with, and this time it went to a general intake queue — not a good sign. Eventually I reached a new agent and made my case. She said she couldn’t find any record of my submission. My heart fell. I asked for a supervisor. When she came on, I walked through my story from the beginning. I got her to admit that there was a record of my submission — I hadn’t dreamed the prior conversations and the photos of the phone I had sent in — but, she said, the original agent hadn’t had the authority to green light my request for a new phone. So sadly, I was out of luck.
The crow I had to eat with my family was bad enough, but it was compounded by the frustration around the time I had wasted. I thought I’d achieved a good resolution, but it turns out I was working with the wrong negotiating partner, because they didn’t have the authority to deliver.
This is the challenge of negotiating with agents. As two of the founders of the Program on Negotiation at Harvard Law School, Frank Sander and Jeffrey Rubin, put it in 1988: “The most obvious effect of using agents… is a complication of the transaction. If we begin with a straightforward negotiation between two individuals, then the addition of two agents transforms the simple one-on-one deal into a complex matrix involving at least four primary negotiations, as well as two subsidiary ones… [this] structural complexity has implications — both positive and negative — for representative negotiation in general.”
In dispute resolution, we usually recommend that the participants in a resolution process have direct authority to make the final decision. If the participants don’t have that authority, then you risk a situation like mine: agreement achieved, but not worth the paper it’s written on, because the real decision maker wasn’t bought in.
The use of agents is often tactical. Sometimes a low power representative is sent to the negotiating table just so the high power player behind the scenes can gather information without making any direct commitments. Or sometimes an agent is sent to a negotiation entirely to stonewall or obfuscate, assisted in that effort by their remove from the details of the case (as in, “I don’t know anything about this matter — all I know is that I don’t have the authority to agree to any of your demands.”)
The most common kind of negotiation agent is a lawyer. Sometimes lawyers can help with resolutions, because their expertise and emotional remove can focus the discussion squarely on the issues to be addressed. But lawyers can also complicate negotiations, because a) they have their own interests (e.g. getting the win, billable hours) and b) they may have a deep toolbox of techniques for confusing, extending, and obfuscating negotiations that they can call upon if they see such strategies as being in their client’s interest.
Representatives may sometimes be more inflexible than the stakeholders they represent. Imagine, for example, a representative of a labor group who refuses to budge an inch in a salary negotiation because he’s worried that when he brings the deal back to his membership that they’ll accuse him of selling them out. Or the opposite may be true: a representative is easy to work with and overeager to reach a mutually agreed upon solution, but they don’t have the credibility required to sell it to the group they represent, so it’s likely to fall apart later (such as Arafat’s inability to get agreement from the various Palestinian factions in his negotiations with Israel).
Agents can also have their own agendas as well. It’s important to pick your representatives carefully, because they may look after their own interests instead of yours once they are shrouded in the privacy of the negotiation process.
Which brings us to the negotiations in Helsinki. We Americans picked our agent through the process outlined in the Constitution, and now that agent is representing us on the world stage — but questions are being raised about whose interests he is really representing. Now these negotiations have started to happen in private, so we don’t know what commitments are being made on our behalf.
As a result, this is a delicate time. We need more information about what has happened so far, as well as what plans are being made for the future. That will require some patience as the investigators carefully do their thing. But if our chosen representative loses the confidence of the people he represents, then he won’t be our agent for very long — and the commitments he’s making may not be worth the paper they’re written on either.
I remember encountering The Morton Downey Jr. Show for the first time when I was finishing high school. The syndicated television program centered around an irate, chain-smoking host (Downey) in a cheap looking television studio screaming at his audience and guests, generally working himself into a frenzy of anger about whatever outrage or hypocrisy was the chosen topic of the day. Downey would stalk the stage, tapping his ashes into a large silver ashtray, occasionally blowing smoke into the face of one of his guests in order to rile them up. He’d accuse anyone who made the slightest progressive argument of being a “pablum puking liberal,” and would frequently interrupt others mid-sentence by shouting “ZIP IT!” into their faces from inches away. Often he’d urge his guests to fight with each other on stage, even goading them on several occasions to come to blows (such as one famous episode in 1988 at the Apollo Theater involving involving Al Sharpton and CORE National Chairman Roy Innis.)
Despite its low budget and poor production quality, the show made an impact in its brief cultural moment. Though Downey was occasionally caught off camera beating people up, using racial and sexist epithets, and getting into fights, he became a quite prominent media figure, eventually making guest appearances on Saturday Night Live, featuring in a few movies, and even recording a record of hokey songs inspired by his show. His influence was apparent in the other talk shows of the era, like Jerry Springer, Geraldo, and even Rikki Lake. For a moment there, he captured the zeitgeist.
But the aspect of the show that really made an impression on me was the audience. His die hard fans referred to themselves as “Loudmouths.” They loved everything about Downey’s act. They’d bring home-made signs to his shows urging Downey on, or signs intended to draw Downey’s ire onto them so he could deliver them a personal dressing-down. They’d wear shirts with Downey’s big mouth logo (see above), and they’d drive in from great distances to be in the audience. When Downey would go on a rant they’d stand up and cheer — almost like a professional wrestling match. The camera would pan the faces of the smiling and elated audience members, often young, white men, as Downey’s rants escalated and the veins popped out of his forehead. They knew it was all staged (they must have known) but they clearly loved it. In interviews, they’d explain that they loved “The Mouth” because “he’s not afraid to open his mouth… he’s not afraid of anybody.”
For some reason, Downey’s popularity profoundly disturbed me. I couldn’t take more than ten or fifteen minutes of the show before I was extremely disquieted. But I would flip over to it on occasion, because it fascinated and horrified me in equal measure. What did it say about human nature that this man had such an audience? What was it about his absurd ranting that commanded such attention? In my Senior Will (a tradition at my high school were we published a short will and testament leaving things to others in our final yearbook) I wished for myself in 30 years: “A cool wife, neat kids… a book in the works, and Morton Downey Jr. far, far away from positions of power.”
Well, that was when I was 18, and this year I turn 48. We’re right on the 30th anniversary. And I got everything but the last item.
Because of the controversial nature of the show, it was moved later and later in my region (North Texas), bracketed by disclaimers before and after the broadcast, and eventually it disappeared. Downey made a few other pitiful plays for attention (such as faking an assault from a white nationalist in an airport bathroom) to reclaim the nation’s attention, but it was too late. By late 1989 the show was cancelled, and Downey filed for bankruptcy a year later. I was optimistic, at the time, that his moment had passed.
A documentary about the show appeared a few years ago, called Evocateur, which processed Downey’s legacy. Most of the commentators focused on how Downey opened the door to reality TV, and changed the culture to be more open to provocative, angry television. In retrospect, it’s obvious that Downey opened a window — a window we’ve had a hard time closing. As Downey puts it in the documentary, in a prescient act of foreshadowing: “I never apologize for anything.” Others, since, have learned that tactic as well.
Downey had been an unrepentant smoker for most of his life, even publicizing his membership in the National Smokers Alliance. He said, “I had spawned a generation of kids to think it was cool to smoke a cigarette. Kids walked up to me until a matter of weeks ago, they’d have a cigarette in their hand and they’d say, ‘Hey, Mort,’ or, ‘Hey, Mouth, autograph my cigarette.’ And I’d do it.” But once he received a diagnosis of lung cancer, he became a staunch anti-smoking activist. He had one of his lungs removed in 1996, and he died of lung cancer and pneumonia in 2001.
Sometimes life gives you metaphors that are so on-the-nose that you couldn’t use them in a work of fiction because they’d be too obvious. Downey was an unrepentant smoker throughout his life, because it felt good. It felt like freedom, and sticking a thumb into the eye of the P.C. police who told him that smoking was bad for him. He even proudly signed the cigarettes of kids. Only later, when he realized the consequences of his smoking, did he change his tune – but by then it was too late. Perhaps in retrospect he felt the same way about his years stoking anger and hatred. It felt like freedom at the time, sticking a thumb into the eye of the P.C. mainstream — but once he realized the consequences, perhaps he wished he’d chosen a different path. By then, it was too late for him. But my hope is that it’s not too late for us.
In prior posts I’ve outlined a few of the maladies affecting our current civic dialogue. Cable news, blogs, newspapers, and talk radio are filled with examples of whataboutism, negative reframing, implicit bias, and truthiness. Much like the algorithms driving Facebook, these media channels crave attention – and conflict, anger, and outrage draw in the greatest number of eyeballs. The focus on profit means these businesses are highly motivated to serve up as many ads as possible. But like my uncle posited three decades ago, the news business is not the same as the entertainment business. It’s fine to create entertainment based on the news (e.g. comedy and talk shows), but journalism — as a public trust — has to be held to a different standard.
What would a better system look like? How could we design fora for discussing the great debates of our era without constantly being pulled into the pathologies I’ve previously described?
I’ve thought about this a lot, and the conclusion I’ve come to is that what we need are better referees. As a nation, many of us are consumed by the drama of sports, be it soccer, basketball, baseball, or football. But none of those sports would work without a referee. The ref is never the hero, and in many cases is made out to be the enemy. But if the combatants on the field want give the game their all, they must have a ref to keep the game fair.
In the conflict resolution field we have a concept called the third party. If you imagine that party one and party two are the disputants, the third party is the neutral – maybe a mediator, maybe an arbitrator, maybe just a trusted expert willing to share their thoughts and advice. The disputing parties may be unable to preserve trust between themselves as a consequence of their passion or their sense of justice. The third party has a trusted role to play because they don’t have a stake in the outcome. The referee is perfect example of a third party.
The ref isn’t playing the game; the ref is running the game. The ref has no stake in the outcome; the ref administers the rules. The ref calls the balls and strikes. The ref hands out the red and yellow cards – but the ref also decides when the ball makes it into the end zone, or when the shot is from beyond the three point line.
The ref isn’t Michael Jordan. The ref isn’t Venus Williams. The ref isn’t Tom Brady. After the time has expired and everyone has gone home, no one remembers the ref. But none of those sports heroes would be a household name without the services of a many refs over the course of their career.
We have to trust our referees if they are to be effective. Everyone is going to try to play the ref, whether it’s Neymar writhing on the ground in fake pain, or LeBron’s incredulous gestures after he’s called for a blocking foul (or Giuliani trashing the Mueller team for bias). Refs have to work hard to see through these attempted manipulations. Referees are literally the personifications of trust. And that makes their job very hard.
We’re comfortable with the concept of refs in sports. You may have an umpire behind home plate, a line judge at Wimbledon, or an instant replay booth filled with refs monitoring catches in the Super Bowl. But the idea of a ref for a political discussion is a little less familiar. I think there are several kinds of referees we need to improve our civic dialogues. They include:
- The truth ref. Once we lose the touchstone of facts, all the other pathologies are enabled. Those who look to undermine our civic dialogue begin their assault with an attack on the very idea of facts. Truth requires credibility. This means that the truth refs do not have the luxury of expressing their opinions. True, no one is free from having an opinion. But having an opinion does not mean that one is incapable of focusing purely on the facts.
- The focus ref. It is not an easy thing to stay focused on a single topic. Many debate strategies are based around sleight-of-hand reframing (e.g. whataboutism) and changes of subject. Focus refs facilitate discussions and combat these approaches. Focus refs aren’t responsible for pointing out what’s true and what’s false – that’s the job of the truth ref. But focus refs also need to be neutral. By facilitating the discussion and keeping it on track, they become advocates of good process, which enables them to enforce the agreed-upon rules. No over-talking, no name calling, no obfuscation.
- The outcome ref. It’s easy to talk, it’s harder to act. When words have no consequences, and commitments have no follow through, there’s no reason to be careful in what you say. The outcome ref holds people accountable for their words. We can have a dialogue about anything, and in most dialogues there’s no expected output. In contrast, deliberative dialogue is aimed at making decisions and getting to the bottom of difficult subjects. Outcome refs audit discussions and monitor the performance of participants. Outcome refs also call out hypocrisy, and track the behavior of individuals across different dialogues.
Imagine a cable news show that, instead of teasing “Breaking News” and then throwing the latest controversy to a panel of talking heads who shout over each other, we have a discussion format the focuses on a particular topic, educates viewers and participants about the relevant facts (which have been audited by truth refs), gives each participant an opportunity to share their perspective (drawing on the facts presented) – perhaps asynchronously, so there’s time for the best argument to be put forward.
Each participant would have an opportunity to explain their perspective, listen to the other perspectives, and then provide additional thoughts (with a process facilitated by focus refs). Perhaps participants would even be asked to summarize the perspectives of other participants to ensure they heard and understood the points made. And the discussion would be driven by the facilitators toward possible areas of common ground and agreement. Once over, the dialogue output would be tracked, and revisited over time to measure progress (by outcome refs).
That’s a vision for a new kind of deliberative dialogue that could steer us away from the broken systems we’re using today. It would feel weird at first, because we’re used to the bare knuckles, no-rules brawls that pass for discourse these days. But people are tired of the shouting and the obfuscation. I believe this new approach could be refreshing, particularly if it is packaged in an entertaining way — and it might make the old style seem like a relic of a bygone era.
One of the core skills in the mediator’s tool box is a technique called reframing. The famed psychiatrist Milton Erickson described reframing as a technique “…to change the conceptual and/or emotional setting or viewpoint in relation to which a situation is experienced and to place it in another frame which fits the ‘facts’ of the same concrete situation equally well, or even better, and thereby changes its entire meaning.” Put more simply, reframing helps people see something from a different perspective.
For example, imagine you’re mediating a dispute between neighbors over a dog who is constantly digging up a neighbor’s garden. One neighbor (Bob) might say, “Frank, with God as my witness, if your dog comes over to my yard and digs up my tulip bulbs again — the Fosteriana Tulips I shipped over here from Europe, that I spent all weekend planting in a perfectly spaced semicircle — I will sue you for everything you’re worth.” As a mediator, you might reframe that as, “Bob, what I hear you saying is that when Frank’s dog comes over to your yard and digs up the planting that you’d worked so hard on, you get frustrated and annoyed, and you want to find a solution.” The mediator is not saying anything substantively different from what the neighbor is saying (although he or she may leave out the part about the lawsuit for now.) But by reframing the comment with an eye toward finding a resolution to the problem (e.g. fix the fence to keep the dog in its own yard, or train the dog not to dig up the tulips) the mediator can help the parties move in the right direction.
A very experienced mediator told me once that mediation is “benevolent manipulation,” and that is kind of what reframing is: it’s urging the parties toward a particular perspective that makes a mutually agreed upon solution possible. Mediators are trained to use something called positive reframing, helping the parties envision and develop mutually acceptable solutions. Once you know what reframing is, you see it everywhere.
But not all reframing is positive. Unfortunately, most of the reframing I see in the media is negative reframing. Media figures can use reframing to make their opponents look silly or insensitive. Often a more complex argument is reframed into a simpler proposition which is easily rebutted or delegitimized. Any cursory look at our media will find this technique depressingly commonplace.
For instance, consider a sensitive discussion about why there are fewer female than male computer science Ph.D. students in the United States. One person might say, “The reasons for this disparity may be a lack of role models for girls in computer science, or unavailability of effective mentorship at key phases in their education, or bias girls confront from incumbent players already in computer science. And there may be biological factors as well.” A negative reframing for this argument might be, “So you’re saying that you think boys are smarter than girls. That’s sexist.”
Actually listening to someone you disagree with is hard — it’s much easier to mis-hear them and then argue with that straw man instead. Calling the other side biased is a common strategy in doing this negative reframing. If someone makes a nuanced point on cultural differences in the workplace, and the response is to (inaccurately) frame the point as racially insensitive, then the discussion immediately runs aground. Once the discussion is framed in that way (i.e. “you are a racist”), agreement is extremely unlikely.
David Brooks, a conservative, once said about Barack Obama, “…what he’s offering is the ability to see all sides of an issue — and I disagree with him. And we’ve had many conversations, and he sees the best side of my argument and then he reflects it back.” This is the kind of positive reframing we need more of, both on the right and on the left. A knee-jerk accentuation of the most inflammatory component of a counterpart’s argument may make it easier for your side to “win,” but a deliberate attempt to understand and engage with the strongest part of your counterpart’s argument will bring us closer to true deliberative dialogue.
Utilizing positive reframing in your political conversations — e.g. demonstrating that you have really heard the core contentions of the other side, and that you are willing to engage with the strongest part of their argument — is unusual these days. But in my experience, when you do it, the response from the other side is usually surprise, gratitude, and a more open mind.
I am a descendant of Supreme Court Justice Oliver Wendell Holmes Jr., a point of great pride in my family. However, a little research shows the path is somewhat less than direct: Justice Holmes had no children, and his Father (the poet and Harvard professor Oliver Wendell Holmes Sr.) also had his line die out — but I am in a direct line from his father, through my father’s mother, so I suppose I’m as direct as anyone can be.
Holmes was an interesting character. He was on the Supreme Court for thirty years, and over that time there was quite a bit of myth making about his intelligence and influence. He never served as Chief Justice, but his ability to write compelling prose (along with his “distinctive personality“) made him one of the most famous judges in history. The Journal of Legal Studies identifies Holmes as the third most cited American legal scholar of the 20th century.
There’s much that can be said about Holmes as related to the focus of this blog, as his writing is voluminous. The internet is littered with his pithy quotes: “Taxes are the price we pay for civilized society.” “Even a dog distinguishes between being stumbled over and being kicked.” “A child’s education should begin at least 100 years before he was born.” And the classic: “Lawyers spend much of their time shoveling smoke.” But in this post, I want to talk about what Holmes said about the concept of justice.
There is a story about Holmes and Judge Learned Hand, in which they had lunch together and afterward, as Holmes headed off in his carriage, Hand spontaneously ran after him and yelled, “Do justice, sir, do justice!” Holmes instructed the driver to stop the carriage, and he turned back to Hand and said: “That is not my job. It is my job to apply the law.”
This was not a one-off sentiment. In a letter to John Wu, Holmes wrote: “I have said to my brethren many times that I hate justice, which means that I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms.” (When pressed later on this statement, Holmes clarified that not only did he hate justice, he also hated facts.)
As a non-lawyer who teaches in law schools, I have been brought into the “justice” conversation many times. I am asked: How can you be sure your online systems will deliver justice? Whenever I enter into this discussion, I recall my ancestor’s observations.
What is justice? To me, the debates around justice can feel more philosophical than practical. There are many possible types of definitions (h/t to my friend Jan for these):
- Outcome focused (e.g. Substantive, Distributive, Utilitarian, & Social Justice)
- Process focused (e.g. Procedural Justice)
- Organization focused (e.g. Interactional, Informational, & Interpersonal Justice)
- Community focused (e.g. Corrective, Retributive, Deterrent, Restorative Justice)
Is it just that I get the last donut and you don’t? Is it just that it rains on my wedding day and not on yours? Is it just that our society is riddled with race, gender, class, and appearance bias? Is it just that the refs called Steph for a blocking foul when LeBron did the same thing three minutes ago and no foul was called?
When I try to help parties resolve disputes, I get concerned when the talk starts to focus on justice. Justice is very much in the eye of the beholder. One’s concept of justice is shaped by one’s self-interest. As Mel Brooks puts it, “Tragedy is when I cut my finger; comedy is when you fall into an open manhole and die.” Parties may think to themselves: justice is when I get what I want. So if I don’t get what I want, there isn’t justice.
Whenever people talk to me about the concept of justice, in my mind I start to substitute in the concept of fairness. Our parents never say to us that life is not just, but they do tell us from an early age that life isn’t always fair. It’s almost like the concept of neutrality, which I think is another impossible ideal — we might never be neutral, but we can try to be impartial. True justice may also be an impossible ideal. And if we can’t achieve it, maybe we can aim to be fair instead.
There’s a bumper sticker on the wall of many a college dorm room that proclaims, “No Justice, No Peace.” This is the kind of motto that works well in one’s twenties but may generate a moment of pause for those of deeper vintage. When I contemplate the injustices of our age (which are legion) I worry that this type of bumper sticker sentiment will dominate our response. I suspect a focus on fairness may be more attainable, and will give us more space to find common ground.
Another Holmes quote (oft attributed to the Jr. but in fact from the Sr.) is “The young man knows the rules, but the old man knows the exceptions.” There’s a difference between knowledge and wisdom. If we’re to start fixing what’s broken, we need to keep that difference in mind.