F.C. Resident Shares History of Resolution

When Falls Church resident and current School Board member Dr. Jerome Barrett was growing up in Minnesota he listened to the conversations between his older brother and father. Both, intense and persuasive, focused their points as they tried to win the argument. On the sidelines, young Jerry would sit and listen and in his head would attempt to find resolutions to their arguments. The experience led him to becoming a federal mediator. Now, after his four decade career, Barrett has written a book with the help of his son Joseph that talks about how societies from the earliest on have promoted peaceful resolution to conflict.

Dr. Barrett comments on how, throughout the District of Columbia, traffic circles and monuments display, the heroes of American history. Warriors on horseback and soldiers in military colors stand proudly in victory. For a long time Dr. Barrett has seen this as a symbol of something intrinsically wrong with American culture; a tendency towards conflict and a need to win.

Barrett has been a professional mediator since 1962 and authored the book A History of Alternative Dispute Resolution: The Story of a Political, Cultural, and Social Movement, to share how history has been built not only on the backs of warriors but also on the shoulders of negotiators through peaceful resolution.

It wasn’t until the 1960s that negotiation was given the formal title of Alternative Dispute Resolution (ADR), but it's practice is as old as human society. People have used mediators and arbitrators to solve problems since they first started working together for survival.

But Barrett said that it has also been human nature for people to try to take what they want through strength and force. Instead of finding common ground, people and societies have become accustomed to using power for their own ends.

In writing his book, Barrett sought to show that there has always been more than the one option of violence when it comes to solving conflict. “It traces the history of the person of peace. I wanted to raise up these people,” said Barrett.

Formally, ADR has three different stages: negotiation, mediation, and arbitration. The most basic form, negotiation, is simply two parties working together to come to an agreement on a subject.

In mediation, a second party is brought in to help facilitate the discussion between two parties. Throughout history the mediator has been a respected and trusted person expected to have an impartial view of a subject.

Arbitration involves the third party making a decision for both parties to agree to and accept as a resolution.

Barrett begins his discussion of ADR with a theoretical story about early man’s use of mediation to solve an argument about hunting territory. Face to face with their hands on their spears, they accept the decision of a third party who arbitrated by flipping a rock, with each side representing the interest of one of the hunters.

The book then goes on to talk about how ADR was used in cultures throughout history and around the world.

In ancient Greece all men in their 60th year had the responsibility to act as arbitrators or risk losing their citizen status. For smaller disputes, which could slow down the court system, citizens would use an arbitrator, and the decision he made would then be endorsed by the court and become legally binding.

During the Middle Ages in Europe dispute resolution was considerably less civil, though it remained a relatively peaceful option compared to the battles that were a constant part of medieval life. In one form of resolution, a disputant was given a burning iron to hold. If the wound healed after three days he won the dispute, if it became infected, he lost.

By the 20th century with the advent of the labor movement and unions, ADR was used to find common ground between employers and their workers. It was with these unions and employers that Barrett gained his experience as a mediator.

While similarities exist between the contemporary judicial system and ADR, Barrett said that one of the major differences is the use of lawyers. “As an opposing lawyer you just look for holes in my argument,” Barrett said. "The goal for either party isn’t about finding the best possible solution for both sides, it is about winning."

Even when settlements are, as Barrett said, “made literally on the courthouse steps,” it is because two sides have mustered their guns and pointed them at each other until both sides cave in, rather than risk the resources and time that would go into a long and protracted court battle.

But lawyers participate in ADR as well, and law students can now get a degree specializing in the field. Rather than defeating an opposing view point, ADR lawyers work to best represent their client’s interests and create a satisfying conclusion for all parties.

Barrett said that in order to reach an agreement by ADR both sides have to stop thinking in terms of how their power can affect a negotiation and instead trust that by being clear about their needs and seeing clearly the needs of the other party, a fair and even decision can be reached. He said that the secret to making ADR work is in the presentation of viewpoints. “It puts everything on the table,” he said.

In interest based negotiation both sides discuss their vision of the way they would like things to be rather than specific things they want from the negotiation. After each side makes clear its desires, the mediator finds crossover areas that can be achieved in the interests of both parties.

Barrett described the process like a Venn diagram, where two circles overlap. He said that as the process gets easier, the greater the circles overlap.

In Barrett’s own career as a federal mediator, one of his most memorable cases was between a steel company and a labor union. He was brought in late to the negotiations and both sides were on the verge of walking out on each other. The strike date was set for the next day when Barrett was brought in.

Immediately it was clear to him there was a lot more at stake than just salaries and benefits. The labor leaders were new and there was a lot of tension between them and the employers as a result of perceived insults and condescension.

Barrett first looked to find members of the union leadership who carried hierarchical power, who were older and more interested in long term benefits. He felt that if he could get them to lead the negotiations it would be easier to find common ground.

As a second step he worked to resolve non-economic differences. He worked out ways for management to show employees greater respect and consideration that didn’t cost anything, but would be a foundation for better relations. At one point he even asked the entire group to leave the room in order to get an apology between two people.

Most of the actual work of negotiation happens in separate caucuses where the sides can sign off on offers and then give them to the other side to discuss. Only at certain times do both groups meet together. As the discussions moved into the evening hours, Barrett made lists and crossed off points that had already been resolved in order to give a sense of momentum.

At midnight, the labor union started to push the proceedings, insisting that the strike deadline had been reached and they were ready to walk out. But Barrett was able to insist they come back to the table and continue the negotiations.

Finally by five in the morning, just as the sun started to rise, both sides came to an agreement on all the terms and the dispute was resolved.

After years of doing it, Barrett said he can often see a resolution before either side does. “You do get a sense of where it’s going to go,” he said. “Although there can always be surprises.”

But he said there is also a danger in predicting the solution to a dispute. Sometimes a mediator will push too hard if he is looking towards a specific outcome. Instead, he said that part of being a mediator means swallowing one’s pride in getting people to agree. “The parties themselves have to feel like they were the mediators. We don’t get much credit,” he said.

As negotiations progress, he said that one of the most important jobs of the mediator is to keep things light. Many people use jokes or silly stories to break the tension. Barrett talked about one mediator who used an imaginary friend named Sam Lapitas in order to lighten a meeting. Barrett’s technique has always been to use stories from the history of disputes to give perspective to negotiations. “I did have one good joke a year that I would practice,” he said. His use of history comes into play in his book which, among other things, he hopes will provide stories for other mediators to use in their own negotiations.

But ADR goes beyond labor disputes, and Barrett said that recent global tensions provide a good example of why it can be preferable to using force to solve international disputes.

He said that in the present administration’s decision to invade Iraq against the wishes of the United Nations, it was making a decision based on the use of superior power rather than negotiating for greater international cooperation. Now the U.S. is facing a difficult situation in Iraq and the United Nations is resistant to requests to get involved.

“We should have talked. We should still be talking,” he said. “Dispute resolution values relationships.”

That respect for relationships explains the growing trend of using ADR in personal affairs, especially divorce proceedings, Barrett said. “In cultural relationships it’s really foolish to use power,” he said. Through ADR, personal disputants can resolve their differences without damaging each other and their friendships, which can be especially important if children are involved. As for himself, resolving disputes has helped Barrett stay married to his wife for 52 years.

As ADR has become more popular, other fields have added to the breadth of options for those looking for mediation. Occupations like psychologists and therapists have helped make mediators more sensitive to personal needs. But even as the process becomes more involved and different techniques are used, the goal is still simple: to get people to put aside their differences and come to an agreement. As people around the world continue to fight over even the smallest things, ADR is a source of hope that gives peace a chance. “It’s so satisfying to go from no possibility of finding a resolution to getting people to agree,” Barrett said.