NEGOTIATION, CONCILIATION / RECONCILIATION, MEDIATION

 

“The Law is not Higher than the Law of Love”

 

Problem:   Alienation (отчуждение) in relation to people, society. Alienation from basic, warm, interpersonal relating to people. Exclusive reliance on intermediaries (police, judiciary) to avoid dealing directly with people, with potential conflicts. Systematic legalistic approach.

 

“The purpose of the law is to defend the weak from the strong.” This perception of the British philosopher John Stuart Mill was shared (была подхвачена) by Gandhi when, after graduating from the bar in England, he practiced law for twenty years, mostly in South Africa. Gandhi felt that the lawyer’s true function was to unite parties that have become estranged. He foiled unceasingly as an attorney who came to the rescue of the poor and defenseless (especially indentured Indian laborers). Gandhi made maximum use of the possibilities afforded by the law and judiciary apparatus to bring about greater justice in South Africa.

However, he made scathing statements about the fiendishness and brutishness of the mentality which uses the judiciary to practice aggression rather than love. He felt that for two disagreeing parties to go to law could often be “another form of the exhibition of brute force.” Gandhi’s thoughts on this subject are a variation on the injunction found in the Sermon on the Mount. Do not take your brother to law, but rather make things up with him prior to — and rather than — appearing before a judge. We have become blind to the extent that going to court for handling human situations pervades our way of life.

The reason for Gandhi’s — and Jesus’— misgivings (опасений) about the systematic or reflex-like recourse to the judiciary is that fear, constraint, and force will never achieve justice. Having recourse to the judiciary as a form of the Law of Aggression rules out the chance for one to practice the Law of Love.

A very fundamental alternate to automatic or systematic recourse to the judiciary is the practice of conciliation. One of the principles underlying Gandhi’s strong commitment to achieving conciliation was later taken up by Ted Crawford in his method for “Sharing and Exploring of Differences” as a path to peace: “While sharing differences, have enough flexibility to consider (from the outset) moving toward a third position.”

Pioneering work on the value of negotiation and putting, oneself in the right frame of mind for the achieving of conciliation has been conducted by the Harvard Negotiation Project and reported on by Roger Fisher and William Ury in Getting to Yes: Negotiating Agreement Without Giving In. The Harvard Negotiation Project generated such activities as the Negotiation Seminar and the Conflict Clinic. The Project teaches such techniques, skills, and devices as: “principled negotiation” (as opposed to both “hard negotiation” and “soft negotiation”); better communication; using “negotiation jujitsu; ” and “taming the hard bargainer.” Fisher and Ury show their readers how to move away from the all-too-frequent notion of individualistic winning at all costs — while learning to win such prized rewards as a better and more efficient way to negotiate, and the satisfaction of working out a solution to a shared problem. From a Gandhian viewpoint, all such efforts are “skillful means” or devices used to implement the Law of Love.

As Tolstoy put it, “There can’t be any sanctity and law higher than the sanctity of the Law of Love to one’s neighbor.” In clear cases when the letter of any human law or the way it is being enforced flagrantly violates a higher value — the practice of Love, then we are in duty bound to consider seriously which our conscience would have us obey — the questionable letter of a written code of law, or the Law of Love.

Instead of the formal/legalistic approach to human beings which has tended to prevail in much of our way of life in the West, and in other parts of the world, we should practice as much direct dialogue as possible with the “opponent.” Echoing these Gandhian concerns, United States Chief Justice Warren E. Burger recently called the American legal system “too costly, too painful, too destructive, and too inefficient for a truly civilized people.” We should use a variety of possible approaches dictated to us by our hearts and minds, including negotiation, conciliation, mediation, sharing of differences, co-responsibility, and the co-creation of a valid and creative compromise which is a recognition of the element of truth within “the other” out there.

In Chief Justice Burger’s words, “Trials by the adversarial contest must in time go the way of the ancient trial by battle and blood.”

 

Readiness to understand and appreciate the other person’s point of view is the very essence of the search for Truth.

 — An Indian disciple of Gandhi

 

 

Solution:   De-institutionalize what should be direct interpersonal contact. Abandon formal/legalistic approach to divergences and conflicts with fellow humans. Practice as much direct dialogue as possible with our “opponent.” Use negotiation, conciliation, mediation, arbitration, sharing of differences, co-creating, co-responsibility.

 

 

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