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.
My great uncle, Gordon Wade Rule, was the Chief Contractor for the U.S. Navy for more than twenty years in the 1960s and 70s. He did a lot of high stakes negotiating during that period, from aircraft carriers to Trident submarines. His stakeholders ranged from Senators to Admirals (Rickover was one of his trickiest adversaries) to massive defense contractors. He consolidated his decades of experience into a short book called The Art of Negotiation, which he donated to his country. While some of his recommendations may seem a little dated when held up to modern negotiation theory, the heart of his argument is dead on: do your homework, be committed to the truth, build trust with the other side, and only make good agreements (e.g. agreements that work for both sides).
If you were to take a negotiation training at the Program on Negotiation at Harvard, those points would fit right into the curriculum. In fact, the tips you get from many negotiation and conflict resolution professionals may seem somewhat obvious: focus your energy on the problem to be solved, not on criticizing the people you’re negotiating against. Listen closely to the other side, both to what they’re saying and what they’re not saying. Look for areas where there is mutual benefit, and build a path to agreement. Start with small successes/agreements and then work up to the harder ones. I’ve had people say to me, isn’t that all just common sense?
Well, sure. All of that advice can seem pretty straightforward to someone looking into a dispute from the outside. But when you’re inside a dispute, that advice can be extremely hard to put into practice. When we feel we’ve been wronged, a different set of ideas pop into our head: be aggressive. Push the other side to bend to our will. Threaten and sabre rattle. Take stands on principle and refuse to back down, so as to get much value as possible. Be inflexible to force the other side to agree to your terms.
Research shows these approaches are not very effective. Bullheadedness on one side creates bullheadedness on the other side. The best negotiations build trust over time and create value for both sides. But the aggressive, fixed-pie, take-no-prisoners approach has a long history, and it’s remarkably resistant to evidence-based criticism. As the current occupant of the White House demonstrates, people observing this distributive approach seem to feel it represents strength and power — even though the results are demonstrably inferior to integrative techniques.
The challenge comes when you want to negotiate in a value-creating, integrative way, but the other side wants to bully and posture to force you to bend to their will. As we discussed before, no one wants to bring a knife to a gun fight. There can be a race to the bottom when one or the other side demonstrates a willingness to go low. Tit-for-tat says if the other side betrays you, you should betray them back — but proportionally. If no one is willing to take a risk and try trust, that can lead to repeated betrayals, and the negotiation won’t go anywhere (and it will almost certainly end the relationship).
Negotiating with a bully who wants to push you to bend to their will can make you frustrated and angry — and getting you angry is part of why their strategy can work. Once you get angry, you may make unwise decisions motivated by emotion. If a bully gets you emotional through threats and insults, you may start to sling some threats and insults of your own, which gives the bully more fodder to criticize your intentions and wind you up further. They can also use your behavior to justify their aggressive approach to outsiders, saying: “See, we can’t negotiate with this person. They’re participating in bad faith — look at these threats and insults. We’ve got to force them to do what we want, no compromise.”
Hence our current moment. It’s true that many people are frustrated and angry, and that anger makes them want to lash out. Maybe it’s shouting down administration officials at a movie theater, or refusing to serve them at a restaurant, or yelling expletives on TV or at an awards show. But the question must be: what outcome do we want to achieve? And do these behaviors help or hinder our efforts to achieve that outcome? And are they making the problem worse?
It can feel good to see people expressing frustration that you yourself feel. But in many cases, those cri de cœur play right into the hand of the other side. Meeting anger and bullying with more anger and bullying digs the hole deeper. It’s not easy to confront bad behavior with restraint, but it’s vital if we’re going to try to rebuild some of the trust that we’ve lost in our society. We can have our “at long last, have you no sense of decency” moment without resorting to profanity, threats, and insults. They say what you fear you become, and that is what the anger trap can do to you. The only way to win is not to play.
One of my heroes is Howard Raiffa, a pioneer in decision science and game theory. Before he passed away in 2016, Professor Raiffa held a joint chair at Harvard Business School and the Kennedy School of Government. His expertise spanned statistical decision theory, game theory, behavioral decision theory, risk analysis, and (of particular interest to me) negotiation analysis. His seminal book The Art and Science of Negotiation is a classic text in the field of conflict resolution. It is a foundational text that integrates the fields of game theory and negotiation in innovative ways.
One of the examples of this synthesis of game theory and negotiation theory discussed in Prof. Raiffa’s book is the Prisoners’ Dilemma. In case you haven’t come across the Prisoners’ Dilemma before, it’s outlined in the graphic above and in the description below (written by Albert Tucker, who gave it its name):
Two members of a criminal gang are arrested and imprisoned. Each prisoner is in solitary confinement with no means of communicating with the other. The prosecutors lack sufficient evidence to convict the pair on the principal charge, but they have enough to convict both on a lesser charge. Simultaneously, the prosecutors offer each prisoner a bargain. Each prisoner is given the opportunity either to: betray the other by testifying that the other committed the crime, or to cooperate with the other by remaining silent. The offer is:
- If A and B each betray the other, each of them serves 2 years in prison
- If A betrays B but B remains silent, A will be set free and B will serve 3 years in prison (and vice versa)
- If A and B both remain silent, both of them will only serve 1 year in prison (on the lesser charge).
This simple model is a neat representation of one of the central challenges of negotiation. If the prisoners trust each other, they’re better off overall. But if the trust is undermined, they are tempted to betray the other, and they’re potentially much worse off. Extrapolate this to any negotiation partnership and you understand the importance of trust between negotiators. Once trust is undermined, there is always a temptation to betray, which can be worse for everyone.
A later classic book in the conflict resolution field is Axelrod’s Evolution of Cooperation, which leverages the Prisoners’ Dilemma extensively. Axelrod invited game theorists to write algorithms to play the Prisoners’ Dilemma, and then to come to the University of Michigan (where Axelrod is a Professor in Political Science) to play in a Prisoners’ Dilemma tournament with multiple rounds. In a field of competing algorithms, some with very complex rules for when to betray and when to remain silent, the winning algorithm across all the matches was a simple approach titled “tit for tat.”
Tit for tat works this way: it starts out trusting on the first round, and subsequently copies the other side’s prior move. The core idea is that good behavior is rewarded by reciprocating with good behavior, but bad behavior is immediately punished. In practice, tit for tat cooperates when the other party has an immediate history of cooperating and betrays when the other party previously betrayed.
Now my goal is not not to give you a Spark Notes version of a degree in game theory and negotiation — so let me cut to the point. As Megan McArdle explained in the Washington Post last week, our nation is having a tit for tat moment. As Prof. Raiffa would have probably argued, our national nervous breakdown can be modeled in game theory, which can generate insights about how to start to recover. As Megan put it in her piece:
“…both sides think they have legitimate grievances, and both are hurting themselves as they try to punish the other. At this point, the only way out is for everyone to put themselves in timeout — to think hard about whether their behavior reflects the kind of people they want to be, or the kind of country they want to live in. And then try to find some common set of rules that will let us cooperate instead of mindlessly punishing each other.”
It’s not going to happen all at once, and there are sure to be fits and starts as we try to work our way back to cooperation. But the good news is, a) people respond to incentives, and b) tit for tat shows us it’s not really that complicated. We just have to keep our responses proportional and forgive quickly to get things back on track. But someone has to take the first step by trusting the other side.