Thought Leader – Judicial – Emory University School of Law

From protest and impasse, to reconciliation and understanding perspectives, here Lindsay R.M. Jones of the Emory University School of Law in Arizona, US, gives an in-depth outlook on the role of a ‘Transformative Voice’ in mediating public policy conflicts.

With a wealth of research and wisdom behind him, Lindsay is at the top of thought leadership in the field of advocacy and dispute resolution, as proven over the next few pages, in this outstanding piece that looks into the complex philosophies behind mediation.

 

There were two farmers whose houses were situated directly across from one another with a dirt road running between them. One farmer always dressed in red. The other farmer always dressed in blue. While they had lived on their farms all of their lives, neither spoke a single word to the other. Each saw the other as an adversary in the market place, despite the fact that one grew flowers, and the other tended bee hives and harvested honey. Each secretly wished the other bad fortunate for the other’s endeavors even though their individual success was dependent upon the success of the other. The understanding of this interdependence was beyond them, distorted by their lack of capacity to speak to each other, and to see the others’ perspective.

Upon seeing their conflict and the ill will that each harbored for the other, God decided to pay them a visit. As each farmer attended to their perceived self-interest, ignoring the other, God walked down the dirt road in the middle of their two farms. Without breaking stride, God tipped a beautiful hat adorned with flowers and a swarm of bees toward each farmer, and continued walking down the dirt road. The farmers looked up at the same time, and as they caught each other’s eyes affixed on God, they realized for the first time in their lives that they shared community with one another. They smiled at each other and began to share their perspectives of the experience, when the farmer in red said, “Did you see the beautiful red hat adorned with flowers that God was wearing?” To this, the farmer in blue rebuffed back, “What do you mean red hat, it was clearly a blue hat adorned with a swarm of bees.” Focused in their perceived differences in perspective, each let out a gruff, and returned to ignoring the other and harboring ill will toward the other’s endeavors.

Upon seeing their return to conflict and impasse, God turned around and walked back down the dirt road in the other direction, once again coming between the two farmers, and again tipping the beautifully adorned hat at each. This time each saw the other’s previously held perspective, upon which they immediately realized that the hat upon God’s head was red and adorned with flowers on one side, and blue and adorned with a swarm of bees on the other side. Upon this realization each began to laugh uncontrollably, brought on by their nervous acknowledgment of their wrong-doing to the other, and then embraced in friendship.

In this story, God advocates for neither side, but rather neutrally advocates for consensus in the farmers’ understanding of the truth behind their perceived differences in perspective. The resolution of their impasse and underlying conflict was predicated upon their mutual acts of contrition, represented by their humility as the source of their laughter, and upon their forgiveness represented in their mutual embrace in friendship. Contrition precedes forgiveness, forgiveness precedes reconciliation, and reconciliation precedes consensus.

There are a couple of points that I hope to illustrate in the romantic telling of this story. First, the role of the mediator is not passive, but deliberate and engaged; the mediator, that is, is not an absentee God in the presence of conflict, but actively seeks to illuminate the prospects for reconciliation within the actors themselves (please excuse the presumptuous nature of the metaphor). Albeit, the mediator’s deliberate engagement is nuanced and patient in nature, but nevertheless is methodically intentional by design, with the goal of enabling insight within the actors in conflict, so as to allow them to come into their own realization that a solution is not found in perpetuated impasse, but rather through reconciling the perceived underlying differences in their respective perspectives that gave rise to their conflict. I characterize this illustration of neutral advocacy as the ‘Transformative Voice’.

With respect to competently exercising the Transformative Voice in mediating public policy conflicts, pragmatically speaking, the mediator first must possess an understanding of the power dynamics that defined the parties’ relationship with one another. I contend that interdependent power structural arrangements may be observed within socioeconomic relationships that influence and shape the distribution of power within society, in which the actors in conflict relate to one another in a prescribed spatial power relationship. This spatial power relationship is generally observed as existing within a hyper-segregated hierarchical power regime, characterized by socioeconomic divisions defined by class categories or tribal based constructs, manifesting along bloodlines, ethnicity, race, religion, political identity, language, and cultural traits. I contend that reoccurring meta-power structural arrangements may be observed at the local, national, and international levels of society. Thus, they are global in nature, reliably rendering themselves as a guide for mediators to analyze the power dynamics at each level in society in which a conflict between actors might be observed. By evaluating the power dynamics of the actors’ relationship through the analytical lens of the proposed ‘Global Meta-Power Structural Arrangements’ model, I contend that the mediator can more accurately assess the strategic avenues to move actors beyond prescribed conflict voices that perpetuate impasse, inhibit mediation, and undermine consensus building by which to achieve sustainable conflict resolution.

These prescribed conflict voices might be characterized as falling into one of three levels of maturation: Protest Voice, Empowerment Voice, and Transformative Voice. The most primitive of the conflict voices is ‘Protest Voice’, in which the actor exhibiting this voice may be observed as lacking the capacity to command the institutional form and language of the power structural arrangements in which the conflict arises. Protest Voice limits the actor from identifying and articulating resolution in pragmatic terms, and pushes the opposing actor away from resolution, other than in limited circumstances where the opposing actor offers temporary distributive concessions intended to appease threats of a sustained, intense protest posture, as a means to preserving the existing power structural arrangements, which the opposing actor perceives as benefitting its power position in the hyper-segregated hierarchical power regime. This faux resolution outcome tends to be cyclical in managing impasse and does not deconstruct the power structural arrangements that give rise to the underlying conflict as a systemic phenomenon.

Empowerment Voice’ is exhibited in an actor possessing, at various degrees of capacity, an ability to command the institutional form and language of the power structural arrangements in which the conflict arises, sufficient to effect long term distributive concessions, sometimes permanent, however, like Protest Voice, actors engaged in Empowerment Voice are unlikely to achieve reconstruction of the power structural arrangements, instead they are more likely to engage in an effort to preserve the existing power structural arrangement to maintain perceived socioeconomic advantage, or to be unable to identify how the power structural arrangements might be reconstructed in a way that does not perpetuate the underlying source of conflict, namely the imbalances of inclusion and equity resulting from the hyper-segregated hierarchical power regime. Their disposition in this regard is based on their relative power position within the existing power structural arrangements.

Transformative Voice, when employed by the mediator, seeks to foster the realization within the actors of the existence of their complex interdependence, which when realized, establishes capacity within the actors to embrace Transformative Voice as their own conflict voice. It is through their maturation to Transformative Voice that the actors may cultivate and establish the spatial capacity for inclusion and equity in the mediation process. This maturation in conflict voice enables the actors to mutually reach contrition and forgiveness, by which capacity the actors are enabled to pursue the consensus goal of transforming the existing hyper-segregated hierarchical power regime, which defines their respective institutionalized power positions outside the mediation process, to sustainable democratized power structural arrangements embodying institutionalized inclusion and equity. The achievement of the deconstruction of the existing hyper-segregated hierarchical power regime, and therein the transformation of the existing power structural arrangements, results in the institutionalization of mediation processes within the new democratic power structural arrangements, which in turn ensures that future conflicts among the actors do not reach impasse or rise to a level that threatens the broader society in which the actors reside. Without intervention, socioeconomic conflict will proceed on a critical mass trajectory until socioeconomic implosion occurs. Thus, complex interdependence of socioeconomic interests calls for intervention through public policy mediation.

My formal research examining socioeconomic conflict resolution began with my post-graduate study at the Institute on Race and Poverty at the University of Minnesota Law School, where as a senior fellow I focused my studies on the intersection of race and poverty and its nexus to socioeconomic conflict, and generally studied the political economy of inequality. The product of this socioeconomic research resulted in my attending the 2001 United Nations World Conference on the Elimination of Racism in Durban, South Africa, at which I successfully advocated as a credentialed member of a NGO, for the inclusion of mediation processes based on my Transformative Voice and Global-Meta Power Structural Arrangements models, in the conference’s Declaration and Programme of Action, which was adopted by consensus by the international member states of the United Nations.

I first published on my work as one of a collection of socioeconomic research papers presented by international researchers, in a World Bank publication in June 2003, entitled ‘Durban Plus One, Opportunities and Challenges for Racial and Ethnic Inclusion in Development’. In the presentation of my paper at the World Bank, I called upon the international development banking community to invest in making operational the mediation models based on my work and as adopted UN members, or in the alternative, that the international banking community place structural adjustment requirements on investments with those member nations that adopted the Programme of Action, by which they obligated themselves to make operational the mediation processes based on my work. I hope to return to examine international banking community involvement in the operationalization of the mediation processes as a future research project. This accounting on my work through the University of Minnesota provides an illustration of my employment of the Transformative Voice in a strategic engagement at the international level, to engage the legislative and financial power structural arrangements at the international level to support the operationalization of mediation processes to address socioeconomic conflict at the level of intra-state power structural arrangements.

 

 

Since leaving the University of Minnesota Law School, I continued my research at the Emory University School of Law in the capacity of Associate Director of the Center for Advocacy and Dispute Resolution and Director of the Consensus Project. In the course of my work at Emory, I have facilitated the establishment of two ongoing cultural and conflict resolution exchange programs at Emory with sister universities in Mexico and China. I have also met and consulted on socioeconomic conflict resolution with Supreme Court justices, trial judges, criminal justice and human rights attorneys, and law professors from Liberia, Mozambique, China, and Mexico.

For the last ten years my research at Emory has focused on clinical studies through my pro bono work as a human rights attorney, representing immigrants and low income disenfranchised minority groups, and over the last six years as a part-time magistrate judge engaged in presiding over and supervising therapeutic criminal diversion programs designed to redress the traumatization of socially and economically marginalized minority young adults, whose socioeconomic condition contributed to their criminalization.

My current research examines the unsustainability of mass incarnation of high-at-risk youth from minority groups as a public choice to police the containment of the manifested ills of institutionalized socioeconomic marginalization. I have attached to the distributed copy of my presentation paper, a copy of my recently published article in the Daily Report, dated October 7th, 2016, Arrested Development Leads to More Unrest’. In the article, which was strategically targeted for publication in a state legal journal widely read by 47,000 prosecutors, public defenders, human rights attorneys, judges, and law and policy makers, in the State of Georgia, I sought to exercise the Transformative Voice, in an effort to informally initiate public mediation among members of the statewide judiciary and criminal justice system, and the affected marginalized communities.

My next step in the following weeks will be to begin work on organizing a forum on the issue to be held at Emory University School of Law, to which I will invite by publication invitation members of the statewide judiciary and criminal justice system, as well as representatives of low income minority churches and groups, and the general public. The strategic goal of the forum will be to produce a consensus among the stakeholders on the need for criminal justice reform, which might support the introduction of legislation before the Georgia General Assembly in the spring of 2017.

 

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