This Chris Honeyman article was published in the January-February 1999 issue of IRE Journal, the journal of the professional society Investigative Reporters & Editors.
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On September 24, 1998 a number of news organizations reported on the settlement of one of the largest environmental disputes ever. The “Pittsfield PCB case” involved the General Electric Co., the city of Pittsfield, the state of Massachusetts, the Environmental Protection Agency and other governmental bodies. GE and other electrical manufacturers had used PCBs legally for 45 years before the EPA banned the chemicals as possible carcinogens in the late 1970s. After the ban, the issue became how best to accomplish the clean-up of PCBs in the Housatonic River and at a former GE plant site, while also promoting the economic redevelopment of Pittsfield.
The expense of the cleanup would be great; negotiations as to how it should be done dragged on for years. Over the years, the negotiations received some media coverage. The coverage, unsurprisingly, increased with the announcement of the settlement. But the increased quantity of coverage did not mean quality coverage.
One of the parties sent me articles about the settlement—more than twenty pages in all—which had appeared in respected national and regional newspapers. Every story had missed a key factor in the negotiation. The missing element: this had been a mediated process. The articles gave no hint of what had been needed to make this settlement possible, including an intensive search for a mutually acceptable mediator. From the viewpoint of one concerned with explaining the emergence of new systems of conflict resolution, these news reports missed the context of the story entirely.
Admittedly, my perspective is specialized. But even from the standpoint of anyone who lives near a contaminated site, or is affected by a major dispute of another kind entirely, the failure to explain what it takes to resolve major cases deprives citizens of needed information. This void reflects the general failure of journalists to understand the onset of systematic changes in how we handle conflict—as well as reflecting that “process” is defined in many newsrooms as less newsworthy than “content.” Furthermore, the balkanized beat system in newsrooms discourages journalists from seeing a sea change in Americans’ notorious litigiousness for what it really is.
Don’t depend on previous work
Michael K. Lewis is a Washington, DC mediator often entrusted with complex cases, such as Superfund disputes and a consolidated suit by several hundred black farmers suing the Department of Agriculture over decades of discrimination in its farm loan program. A review of stories about his cases suggests that readers would be unwise to rely on journalists to build up a picture of what is going on in the handling of conflict these days. Most stories treat the negotiations as if they were almost inexorable bilateral processes—rather than the product of carefully managed work involving a third party. I couldn’t find a single one that described what the mediator did, or delved into the context—the increasingly sophisticated options available to parties who want to consider settlement, and the increasingly well-understood risks.
There are exceptions, here and there. The most notable are stories by Margaret Jacobs and a couple of other legal reporters at the Wall Street Journal. But even within their relatively specialized body of work, the larger context of how commercial and employment disputes are—or are not—resolved is often hard to see.
Desire for privacy makes for extended reporting
There are lots of reasons for this pattern. Covering this field is a lot of work, partly because one of its attractions to parties is confidentiality. Mediators know parties are apt to say things to journalists which make settlement more difficult to achieve. Parties are often attracted to alternative dispute resolution partly because it offers the opportunity of greater privacy than court does. Sometimes, this motive is contrary to the public interest, as when it reflects one party’s hopes of settling quietly with a sophisticated complainant so as to keep a broader group unaware that they have been injured in some way.
More often, the desire for privacy reflects a well-founded perception that a private setting is more likely to engender honest talk about areas of possible compromise, along with an entirely reasonable preference for washing one’s laundry in private. Also, the necessary compromises and new directions often involve a long climb down from previously asserted positions, and other steps likely to open the negotiators to attack from militants within their constituencies. Often, an unstated ground rule of a mediator’s involvement is that to make a settlement possible, leaders of the contending parties, or politicians with a stake in the dispute, will be allowed to take the credit, while the mediator rides quietly off into the night. The combination of these factors generally results in ground rules and procedures that discourage parties or the mediator from talking to journalists.
But not always. In a complex statewide dispute over the use and preservation of the “Boundary Waters” of northern Minnesota, federal mediator Maureen Labenski and her colleagues determined early to involve journalists. Their theory was that in a dispute with so many affected individuals and groups, meaningful compromises and mutually beneficial approaches were unlikely to be forthcoming from the parties unless the large and dispersed constituency of each could be brought to understand the need for intelligent trade-offs. This demanded that these “publics” be given unbiased information—which meant, in turn, regularly briefing journalists. The numerous stories that resulted, their unusual thoroughness and their conspicuous placement, worked together to help the public understand why a given party became ready to propose a compromise. This helped keep factions from forming that would undercut the possibility of wise concessions from unrealizable positions. Significantly, though, that rare example reflected the mediators’choice of approach. Would the journalists have done as much without such help?
Infrastructure necessary for good coverage has lagged
The division of responsibilities among journalists has been a contributing factor to the paucity of coverage. Dispute resolution embraces a daunting variety of subject matter, and few journalists have such broad responsibilities as to have reason to see the overall picture. Meanwhile, the rapid growth of the field has outpaced data collection; the infrastructure necessary to generate good statistics has lagged, and often nobody can prove the scale of what is happening.
Journalists and the public have yet to realize how society has moved away from its self-image of litigiousness. For example, in Florida, one of the earliest and most enthusiastic venues for court-connected mediation, upwards of 120,000 cases yearly are now diverted from the state courts into voluntary dispute resolution.
Those interested in disputes between the government and its citizens might be surprised to discover a U.S. government-wide edict requiring planning and implementation of dispute resolution methods in every agency. It has been on the books for almost ten years now, and is starting to show numerically as well as qualitatively significant results. An example is a busy program for handling equal employment disputes within the Postal Service, not only a presumably headline-friendly twist on the neologism “going postal,” but a national program with local connections to more media markets each month.
In schools and families
In more personal settings, there are now thousands of divorce mediators, an increasing number of whom have branched out into handling parent-child, adult guardianship and other kinds of family disputes. Some four hundred and fifty community mediation programs serve nearly as many urban and rural areas. Many of them have large caseloads; two Los Angeles programs, for instance, have rosters of more than a thousand volunteer mediators apiece.
Even children are participating in this sea change. While no one seems to know how many children are enrolled in school peer mediation programs nationally (the Conflict Resolution Education Network estimates about two hundred thousand are trained annually), some states have reliable numbers: in New Mexico, which has a population less than two-thirds of one per cent of the U.S. total, 8,400 child “peer mediators” were considered active last year.
Not all states are equally active in training adult professionals, but in Minnesota, for example, more than two thousand attorneys and judges have been trained in basic mediation skills by one small nonprofit working in conjunction with a local law school. National data are easier to come by in more formalized education settings: From zero twenty years ago, mediation, negotiation and more esoteric dispute resolution methods are now offered at virtually every law and business school. The development of theory and research on this field has kept pace—though one significant result of journalists’ lack of attention has been a slower rate of dissemination of some important findings, at least in language likely to attract the attention of typical consumers or practitioners.
Problems surrounding ethics, quality
Of course, it ain’t all roses. Roiling philosophical differences within the dispute resolution community—yes, we argue about lots of things—are obscure to most journalists, and hence to the general public. We fight amongst ourselves, for instance, over what kind of mediation best serves the parties and the public in a given setting (e.g. publicly supported, or paid for by the parties themselves? Focused on the dispute immediately at hand, or more oriented to helping the parties avoid similar disputes in the future?) We have problems with ethics, quality control, and the perennial questions over resources. But right now, little of this is part of the public lexicon.
What individual consumers choose to do or not do is impacted by what they know. If journalists continue to fail to outline the dimensions of dispute resolution or to explain its ramifications, options and risks, this limits consumer choice. What’s more, the void of information in the media about dispute resolution adversely affects communities’ ability to generate social capital. People are less likely to volunteer time for, or think up new approaches to, a movement that their local media seem think insignificant. Nor are consumers who are still under the impression that dispute resolution is not “mainstream” in a good position to assert sophisticated expectations of what their lawyers and other negotiators should be able to accomplish.
Conflict versus context
Conflict is the inherent subject of many news articles. Even when the main subject of the article has to be the substance of a particular dispute, or of its settlement, a sidebar note on “how it got there” could be valuable in explaining the context. Unreported stories are all around us about how conflict is increasingly being handled—human interest stories as well as stories about government, business and law.
While it may be a challenge to get individual parties, let alone mediators, to talk in other than generalities about a particular dispute, there are ways of reporting on individual cases. For example, one investigative reporter complained to me of difficulty getting parties to business disputes to let her sit in on their case, so she could write about the anatomy of a business mediation. I mulled this over and tried the problem on John Wilkinson, a New York mediator of commercial disputes. He had an immediate answer. “Get her to agree that she’ll sit in on a series of cases, with a guarantee to the parties that she won’t say anything about the case unless they agree she can after it’s over. I don’t think she’ll go to more than about four before she hits one where both parties end up being comfortable allowing her to write what she wants.”
Even in the most confidential of settings, in other words, there’s usually a way to enlighten the public. Several groups are well placed to help. The Society of Professionals in Dispute Resolution, the Dispute Resolution Section of the American Bar Association, the Academy of Family Mediators, the National Association for Community Mediation and several other membership groups have constituents whose caseloads cover large spheres of activity. RAND’s Institute for Civil Justice and the Program on Negotiation at Harvard Law School are examples of scholarly groups able to codify the complex material they produce and make it more accessible to journalists. A little investigation would uncover examples in almost any circulation area of scholars who have studied one aspect or another of this burgeoning field, and of the proliferating specialty groups which serve a dizzying variety of interests.