Quantum Physics and Mediation
Last week I was half-listening to a CBC radio interview in the “Gamechangers” series on the Current, in which a physicist was explaining parallel universes and quantum computing. There was something about his delivery that made me pay more and more attention. His language was simple and clear. I was being drawn in to what felt like relatively effortless understanding (listen especially around the 12 – 16 minute mark). I turned up the volume and gave the radio my full attention, realizing I was being captured by excellent advocacy.
It is of course the fundamental goal of all advocates to be able to make complicated material interesting and understandable to an audience
At the end of the interview I discovered I had been listening to David Deutsch. I Googled him. He is an Oxford physicist. Pioneer of quantum computation. Author of famous works including The Fabric of Reality (which I had never heard of.)
Soon I was in his web page. One of the links is to Taking Children Seriously, a site devoted to parenting. I followed it and, to my horror, found myself awash in what seemed to be the unqualified promotion of dispute resolution through mediation.
My weekly theme in this blog is that mediation, although an essential part of the menu of services available in a modern legal system, on its own is not an adequate dispute resolution system. Rights are rights, and if the holder of the right does not want to compromise, she must be entitled to assert it and the judicial system must be able to grant it.
Here was a genius, and a superb advocate, telling me I was all wrong!
The objective of the TCS approach is that all problems can be solved without any one side imposing their will on another:
“Solving a problem means doing whatever it takes to cause those involved to adopt states of mind which they prefer to their previous states, and which do not cause them to hurt each other. This might involve taking some visible action, or it might just mean making a change in your mind.”
The site is fascinating reading for anyone interested in theories of parenting.
As I read further I realized that the results we often get from mediation in our judicial system – a compromise in which neither party is happy – is not what Deutsch and TCS are advocating. Their goal is consent-based solutions defined as:
…wholehearted agreement – outcomes having the property that no one gets hurt – rather than ones in which someone is merely going along with the outcome while really wanting some other outcome.”
Rights-based dispute resolution conducted according to law and precedent is not designed to deliver this. But mediation doesn’t deliver it either. Wholehearted agreement is no doubt a more laudable goal, but if it cannot be achieved, the parties must not be compelled to compromise their rights.
Actually, mediation can deliver it when it’s not viewed as just a process that’s quicker, less costly, and less stressful for the participants than other processes such as litigation and arbitration. Mediation can offer a distinct good that no other process can or is designed to offer, viz., the possibility of re-orienting the parties to each other. Often it’s said that in mediation, the parties own the problem and the mediator owns the process. But this approach leads exactly to the criticism above. If the mediator directs the process, she inevitably has an influence on the outcome. When the parties own the process (and the problem), the process becomes truly self-determined at every step along the way. When the strength of self-determination together with shifts towards opening towards the other are supported by a skilled mediator, a basis is often created on which the parties can solve their own problems, if that is what they truly wish and such a solution exists.
The fact that a given method or approach might prove useful in resolving disputes between a parent and child, or in modeling how such disputes are resolved by caring parents, would not seem to teach us much in terms of how to manage or resolve disputes between parties involved in civil litigation. In a dispute between a parent and child, resorting to violence or failing to come to some accommodation is directly adverse to the selfish interests of each side, both in terms of survival and from an evolutionary perspective. In contrast, parties whose interests are not so self-evidently interdependent (including divorcing couples, who no longer see their futures as intertwined), have rational, selfish incentives for resorting to violence and for refusing to pursue a bargained solution.
I would respectfully suggest that the primary function of civil legal systems is to (1) deprive people of justification for taking the law into their own hands (allowing the state to enjoy a monopoly on the use of force, as discussed in Pinker’s recent book on the historical decline of violence); and (2) to create strong incentives for parties to resolve disputes through bargaining rather than trials (in the US, less than 2% of federal civil cases ever go to trial, while in state court’s its less than 3%). Civil legal systems may be fairly understood as tacit bargaining mechanisms that parties use to attempt to coerce each other, in a manner sanctioned by the state, until such time as the parties reach the eve of trial, at which point virtually all cases settle (regardless of whether or not the parties use mediation).
In sum, I think that John O’Sullivan is correct when he says that the article that he came upon while pursuing his interest in quantum theory “is fascinating reading for anyone interested in theories of parenting.” But I hope that the article will not cause John to question his basic view, which I think most legal practitioners share, that “mediation on its own is not an adequate dispute resolution system.” To the extent that quantum theory offers, by analogy, any insights into the subject of dispute resolution, it may be that quantum theory teaches us that when we are attempting to measure anything (including what an adversary might ultimately be willing to concede), the measuring instrument that we employ has a direct impact upon, and changes the position of, the thing that we are seeking to measure. For a good discussion on applying lessons learned from quantum theory in other fields, check out Bohr, Niels, “Atomic Physics and Human Knowledge,” 1958 (New York: John Wiley & Sons, Inc.).
I know no one who suggests that mediation alone is a satisfactory dispute resolution system. It is pretty clear on the evidence, however, that mediation, including mandatory mediation, can bring parties to resolution of their disputes earlier and more cheaply than a system without it. Without it, huge proportions of cases settle because the parties (or one party) runs out of money or energy, or is afraid that a trial will be rolling the dice in a way that is just too risky. The quality of the settlement achieved through mediation is much more likely to satisfy some of the interests of both parties than a settlement achieved through exhaustion or fear.
In re: the assertion that “It is pretty clear on the evidence… that mediation, including mandatory mediation, can bring parties to resolution of their disputes earlier and more cheaply than a system without it…. The quality of the settlement achieved through mediation is much more likely to satisfy some of the interests of both parties than a settlement achieved through exhaustion or fear.”
I’m sure that visitors to this site would welcome a link or at least a citation to the referenced “evidence.” In the interim, visitors might want to reflect upon the following observations by Janet Cooper Alexander of Stanford Law School about these sorts of claims and about the results of a five year study conducted by the The RAND Institute for Civil Justice:
“The ADR portion of the study was more controversial. Here too, the study found that the reforms had no detectable effects. Time, costs, and satisfaction were not significantly affected by mandatory arbitration, mediation, or early neutral evaluation. The study did find that money was more likely to change hands when ADR is involved, possibly indicating that ADR leads to compromise resolutions. Without ADR, cases are more likely to be dropped or decided by the judge on motions. And participants declared that they were satisfied with ADR.
“These findings are remarkable. Courts have invested much time, money and psychic energy in developing ADR procedures within the courts. An entire industry has grown up of ADR providers, and many of these derive their livelihood from court-ordered ADR. Many others provide private ADR in connection with litigation. Can it be true that these procedures have no effect?….
“Proponents [of mediation] … contend that cases settle ‘because of’ mediation. The evidence for this assertion is that the cases settle shortly after mediation. I find this argument unpersuasive. Most cases settle; among the perennial problems of negotiation are knowing when both sides are ready to negotiate seriously, and making concessions without signaling weakness. It is helpful to have some outside event to signal the start of serious negotiations and to relieve the parties of the responsibility for making concessions. The settlement conference has come to fill that function. Where there is court-ordered ADR it probably does so as well. Thus cases may well settle right around the mediation because the mediation is the accepted signal that serious negotiations can begin. Mediation may not be the cause of the settlement, but just the dinner bell….
“Causing cases to settle may not even be a very important goal of ADR in the courts. Only about four percent of cases go to trial. We are unlikely to reduce the trial rate much below this, and doing so at the cost of requiring universal mediation seems questionable….
“A more promising justification for ADR in the courts is the claim that the real value of ADR is that it improves the quality of outcomes, and thus is justified regardless of its effect on costs or time to disposition. Here ADR proponents may have made a tactical error initially. The best, perhaps the only, way to achieve procedural reforms is to claim that they will reduce costs and delays. If they don’t really do so, there may be a reckoning down the line. Making this argument persuasively will require more than hand-waving and treating beliefs as evidence. Specifically, some way must be found of judging quality of outcome, other than by surveying parties’ subjective reports of satisfaction. It will be a challenge to devise an empirical measure to evaluate claims that settlements are ‘better’ as a result of ADR.”
Alexander, Janet Cooper (1999). “The Administration of Justice in Commercial Disputes: Developments in the United States.” The Administration of Justice in Commercial Disputes. Montréal: Thémis.
John,
Interesting post. I just finished Deutsch’s second book: The Beginning of Infinity.
I enjoyed it as much as The Fabric of Reality.
I’m always amazed by the reach of certain ideas across various disciplines.
I highly recommend the books.