The recent and ongoing controversy over race profiling and inequitable treatment of African-Americans under the law raises so many questions about the American legal system’s ability to be color blind. Protesters in many U.S. cities now carry signs on which slogans draw attention to inequality in the enforcement of the law. In my own city, Chattanooga, signs held by protesters read “Indict the System.” Though it is hard for us to imagine how one would indict a system that provide us with the act of indicting itself, this sentiment points to an important move toward resolving disputes.
As a practitioner of Alternative Dispute Resolution, indicting the system is exactly what we do every time disputants come to our mediation room.
Our legal system is based upon the idea that guilt (in the criminal sense) or fault (in the civil sense) to one person or one side in the dispute. It then falls upon the prosecution, or the claimant, to build a story about their absolute righteousness. In that story, the other side is portrayed as less than deserving of equal treatment. The claimant, or in criminal cases, the prosecution, must tell a story in which they have come to harm by a demoralized, dastardly perpetrator. The other side must contend that the claim is morally unsound — it is made for political reasons, or the investigation was flawed, or the witnesses in support of the claim were untruthful, and on and on.
In the investigation of the Michael Brown case, the indictment hearing for Ferguson, Missouri Police Officer Darren Wilson included details about the officer’s mother’s criminal history as well as Michael Brown’s alleged delinquencies. It included all kinds of details woven into a narrative to make both sides appear either good or evil.
Our legal system’s “winner-takes-all” approach to dispute resolution encourages this type of positional bargaining in both criminal and civil cases. The system creates a game board on which one side must win and another must necessarily lose. These stakes make dispute resolution in courts expensive and never-ending.
It also reveals the filters — or cognitive biases — that everyone carries with them throughout their lives. Race is a cognitive filter, so is social class. Was either party to the tragedy in Ferguson the result of bad parenting? Was it white vs. black? poor vs. poor? Government vs. citizen? Citizen vs. criminal? All of these categories are abstractions that we use to filter the events we perceive so that we can find meaning in them. So that we can, for ourselves, find the right side of the moral scale.
The lesson from alternative dispute resolution is that basing our judgments of us vs. them will lead to more conflict rather than resolution. A trained collaborative mediator would assume that both parties play a part in a dispute. And that resolution would require that we look at that dispute as a relationship that must bring forth the terms of its own resolution.
Mediators ask: given that both parties are part of this dispute, what does resolution look like to them and in their own words?
Mediators challenge notions of guilt as well as cognitive filters. These abstractions have little place in true dispute resolution.
The legal system, at its foundation, engenders conflict between two opposites. Mediators then spend a lot of time building trust and opening lines of communication that were broken down by the traditional adversarial approach. What if we didn’t walk around on the street with an us vs. them mentality in the first place? In conflicts what if parties were given an opportunity to better understand one anothers’ position in a confidential setting and to find the true human needs behind the demands for money, objects, and retribution.
In civil cases, this is what alternative dispute resolution provides: a confidential setting in which parties mutually provide the terms of resolution to their dispute. This terms are then written into a contract that the mediator ensures passes legal muster and has staying power.
The practice of alternative dispute resolution pertains to civil law cases but the premises of mediation upon which ADR is built can address much broader conflict.