CHAPTER XVI
EQUITABLE RULES FOR TRIBALISED
COMMUNITIES
Mediation - Individual and societal needs in a legal structure - The intermingling of Western and Eastern legal systems - The de-professionalization of law.
Mediation is a process of conflict resolution which asks the individuals involved in a dispute to reach an equitable solution. It relies on the sense of fairness held by the majority of the population - it upholds the collective morality. During mediation the parties seek to preserve their major interests and continued functioning. It opposes awarding the spoils to the stronger and acknowledges the over arching concern of the social and communal fabric - the collective rights. It conveys an attitude fostering the development of negotiation and cooperation. Mediation sees the world as a web of obligations, concerns, feelings, and thoughts.
Mediation
Mediation focusses on the interests involved, not the positions of the disputants. It is hard on the problem, soft on the people. By focussing on the interests, not the people, the participants become problem solvers and engage in solving the problem. What is the real problem and how do we solve it? It is similar to searching for the wellspring and having a stake in the outcome. Options, providing for mutual gain, are generated based on an objective standard.
Mediation has the disputants talk directly to each other, without blaming or name calling. To focus on the problem, information is given, not an interpretation of other's feelings. The parties do their best to listen to the other side of the dispute to understand alternative viewpoints. By listening and acknowledging the other person's feelings there can be a turning outwards towards a solution that is not dependent on an emotional investment. Options for mutual gain, that are not dependent on trust, and can be measured by objective criteria, let both parties walk away from the negotiation table feeling vindicated. Mediation uses all the skills and individual attitudes described in Chapters seven and eight.
Negotiation asserts the reasons for producing a specific result. If a group intends to produce something as simple as a meal it is a matter of negotiation as to whom will produce the soup, main course, or dessert. Usually such negotiations are simple affairs but they can also be the basis for the most complex human activity. Mediation examines the basic interests of the parties and constructs a solution preserving those interests, even in diminished form.
The Chinese have used a mediation system for more than two thousand years. Their system, however, was an authority system in that the group of persons who acted as mediators were the elders of the clan, or guild, or rural community, not just members of the public. The change in the East would require that a jury be of members of the consuming public, not the local power brokers.
Present day Western society has become lazy about the art of negotiation. The use of money as a yardstick for measuring value has meant that value is assumed to be the price. By the failure to measure an exchange of value the assumption is that the price quoted is what is required to acquire a certain article. Unfortunately excessive reliance on price can lead to gross errors where human interaction is concerned. Payment of a wage alone is not enough where a more complex outcome, such as a meaningful social interaction, is desired. A society that devotes too much attention to price may be functional but it does not reach into the reservoirs of human experience and abilities.
This excessive reliance on price is seen in the business law differences between California and Japan. In California, contract law is built on the basis of a fixed agreement between two parties. If something goes wrong one party must pay. In Japan contract law is built on the basis of two parties entering into an agreement that is not fixed. If there is a change of circumstances the agreement may be changed. Kenichi Ohmae has commented on those differences in his book TRIAD POWER:
Negotiations are conducted without legal contracts and are based on human relationships. Agreements are "modifiable" as circumstances change because Japanese value long-term associations with clients rather than short-term exploitation.1
This viewpoint is much more in tune with the demands of modern business than the idea of fixed terms. The pace of industrial change is fluid. Businesses, solvent one year, can be obsolete the next. The rush of inventions and the demands of a consumer society require looser arrangements. A raising of the level of trust, not a lowering of it. Agreements should reflect the working out of a business deal mutually satisfactory to both parties, not an advantage over another.
The two viewpoints of law as demonstrated by Japan and California has been discussed for some two thousand years. It is the discussion between the legalists and the moralists. The legalists said that there must be a fixed law to control society. The moralists said that law must fit into a moral society. In the West the legalists became paramount and thereby fixed viewpoints which explains an event in a Westerner's life. Western philosophy explains a result buttressing a sense of choice or personal responsibility which is an integral part of Western culture. In the East the moralists became paramount and thereby chance explains an event in an Easterner's life. The Easterner explains life as a person's fortune and the result must be accepted with a fatalism that is an integral part of Eastern culture. The cultural trance, East or West, converted what was a discussion, into an abiding faith.
We have now found that the discussion was not of opposite poles. It is two aspects of life balanced on the `knowing' of when to question and when to accept.
Mediation is the base for an alternative legal system. However, the informal process of mediation cannot succeed in situations where the people involved are unwilling to negotiate. There are situations where, due to moral or religious grounds, the participants are incapable of separating their emotional involvement from the problem and cannot solve the dispute. At that juncture, a more formal process, a conciliation board, can be used. The board's pre-eminent concern, the social fabric, supersedes individual concerns.
The terms of an award by a conciliation board would reflect the concerns of; individual responsibility; the global marketplace; a consumerism that is environmentally sustainable; a concern for community. The strength of these concerns varies with regions and a board composed of people from a particular region will make an award closely approximating majority desires, the collective morality. Awards become an approximation of social ideals, not the disembodied law of legalism.
Individual and societal needs in a legal structure
A synthesis of law, meeting individual and societal needs in the global marketplace, is a difficult reconciliation. A synthesis accepts morality and legalism as possessed of equal potency. Lawmakers in the West have been concerned with predictable results because of the rigid viewpoint of legalism. To introduce morality (for reasons of consumerism) means ambiguity has to be accepted.
Ambiguity already exists in Western law, but it is more of a temper of the times. For example, a jury in 1910 ordered the breakup of Standard Oil as a monopoly. If the same jury were asked to break up IBM in 1980 they may well refuse. There is a variance of decisions by the courts dependant on the mood of the times. Inconsistency will have to be accepted in any synthesis. A board in Toronto may decide differently from a board in Taipei on the same facts.
Conciliation boards, composed of people with differing attitudes towards what is fair, necessarily means the relinquishment of predictable results. Results would closely approximate the majority expectations and mores of a particular area, not a rigid legal code.
The law of tribalised communities is a formulation of equitable rules of conduct, not an authoritative decision-making body. To call it law, may be a misnomer. It is agreed rules of process/conduct replicating the themes of organisational governance; membership, a weighted vote, a sixty percent majority, and election by lottery.
Universal rules of conduct are the natural forum for questions of environment, freedom of travel, global manufacturing standards, and other global concerns.
The `acid rain' dispute between Canada and the United States; the effect of the Chernobyl atomic radiation in Poland; the deep seine nets in the Pacific Ocean; the whale hunts; the poaching of rhinoceros horns in Africa; the spilling of chemicals into the German Rhine by a Swiss firm; the dumping of Taiwanese electronic equipment in Portugal to circumvent the European Community's duties; the list of irritants or small scale disasters where universal rules of conduct could end the bickering is endless. The present lawless situation of one nation trying to become more powerful through economic power or population, heedless of global damage, is madness. Competition is likely to continue. However, competition detrimental to global ecology must be curtailed. A universal legal process, simpler and acceptable to many different cultures, must be formed.
One of the effects of consumerism on the decision making process is that those who have a proven mercantile ability make the decisions. It is reasonably meritocratic. Most persons would give their money,- if it were to be used for their benefit, to a banker or accountant in preference to a street sweeper or soldier. Similarly, the administration of justice should be entrusted to persons who display some skill in affairs of the world. A board should be composed of persons who display some intelligence and interest regarding governance and society.
Mere age is no qualification of ability. At present, in the United States, anyone who reaches the age of twenty-one has a vote. While Albert Einstein was alive his opinion was valued to a much greater degree than a person of low mental ability. Yet each had one vote. A system, operated intelligently, is skewed in the direction of intelligence. Systems and processes must avoid elitism and include most of the population. The model of the Venetian Republic should be borne in mind.
A conciliation board with a weighted vote based on education, a degree of social responsibility, and an interest in governance, is an incentive to academic achievement. A possible scenario is, one vote on graduating from high school, another for a degree, a third upon becoming a member of a professional society such as the architects, a fourth on being an official in a public organisation such as a trade union leader, and a fifth on completing a test of current affairs. In this way those interested, and talented, provide greater input into the rules of conduct.
A meritocratic system based on education and social standing, is a realistic method of dealing with the demands of a consumer society. This can be seen in the South African situation where a restricted vote would mean that boards would have a good portion of the educated from all classes. The whites fear of being swamped by an uneducated black vote would be assuaged, and the blacks would slowly obtain increasing legal and political power without an economic cataclysm.
The effect of having members of the public as judges instead of those trained in the law is that law will reflect the collective sense of justice. Law would not be a means of social control based on the desires of a select few.
The intermingling of Western and Eastern legal systems
The intermingling of Eastern and Western legal viewpoints is already underway. California is in the forefront of the use of mediation as an alternative to the legal system. The Community Boards of San Francisco have been offering conflict resolution to help resolve neighborhood dispute since 1977 and have mediated in hundreds of disputes. The Community Boards use words such as,- "don't blame"- "give information"- "listen"- "work on a solution" - "two or more people cooperating are much more effective than one person telling another to change"- these are the words and attitudes of the emerging cultural change. In Vancouver, Canada, the Government of British Columbia has helped set up an International Commercial Arbitration Centre for the resolution of commercial disputes. There is a spate of legal articles in law journals and elsewhere assailing the legal system and advocating change, usually through mediation. A book, by the members of the Harvard Negotiation Project called, GETTING TO YES, NEGOTIATING AGREEMENT WITHOUT GIVING IN, has become a best seller.
Changes are underway but it is a slow process. The complex software infringement dispute settled through arbitration by IBM and Fujitsa in 1987 is a clear sign of progress. This was obviously a much superior method of dispute resolution than that provided by the legal system. It reflected business concerns, not legal concerns.
The de-professionalization of law
The evolution of law into a synthesis of rules of conduct joins a sense of justice from the West, without untrammeled individualism, to the concept of social harmony, without the authoritarianism. It is a marriage of a sense of justice with the overriding consideration being a solution enhancing the common good. The concern for individual rights would be subservient to a desire to improve the lot of mankind. From the Japanese viewpoint it would require the enlargement of their viewpoint from being concerned with improving the position of Japan Inc. to being concerned with the world's improvement. From the Californian viewpoint it would require a partial submerging of individual concern to a concern for all of humanity.
To the Western mind law and justice are inextricably bound together. To the Eastern Confucian mind a nebulous concept like justice becomes the despotism of the ruling power. In the West however, the abstract idea of justice has a rugged simpleness to it - what is equitable to me as an individual? Of course what is equitable varies from individual to individual and the common law dealt with that problem by a judge defining what is equitable and then having a jury of twelve define the facts. Justice forces humankind to seek a reasoning beyond simple self interest. A tribunal of ten persons have, as their concern, what is fair to all humanity; the larger viewpoint rather than the desires of a single individual.
Law that gives power to the common person's sense of justice, to their ability to dispense justice, is more likely to be supported. It is also more responsive to the mood of the times, as opposed to law administered by judges secure from the rude winds of everyday public contact.
From the Eastern viewpoint a concern with justice is an awakening of a concern for law beyond the simple voice of authority. Chinese are all too well aware that law is what the government, whether nationalist or communist, declare it to be. The Confucian emphasis on respect to authority buttresses the government power. Easterners feel powerless in the face of laws because they have the force of the government behind them and, it is presumed, the authority of the majority. The easterner is well aware of the shortcomings of an acquiescence to authority.
Are you interested in OBEs, dreams, lucid dreams, etc?