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.