PREVENTING AND BREAKING IMPASSE BY UNDERSTANDING THE SYMBOLIC MEANING OF MONEY
Inga A. Watkins
Watkins Law and Dispute Resolution PLC Doctoral candidate, George Mason University,
Institute for Conflict Analysis and Resolution Adjunct Professor of Law, Howard University
School of Law Co-chair, Mediation Committee, American Bar
Association, Section of Dispute Resolution
Victoria Pynchon
ADR Services, Inc., Century City, California
AAA Expedited Commercial Panel Int’l Institute of Conflict
Prevention and Resolution Panelist Member, Diversity Committee
LL.M Straus Institute of Dispute Resolution
Member, Standing Committee on ADR, State Bar of California
Owner, Pynchon Negotiation Seminars
•Voluntary monetary transfers• responsibility for consequences of wrongdoing, •Sympathy less fortunate, •solidarity with members of suffering community •obligation to family members
•Socially mandated transfers• fines, damages, child support, social security• express group norms.
•Norms establishing the amount of money that should be paid in these different circumstances
•convey meaning re what obligation one set of people has to another•how much recipients deserve from these others.
WHAT DOES THE TRANSFER OF MONEY MEAN?
What role does money play?
• the most emotionally meaningful object in contemporary life; •common carrier of strong and diverse feelings, significances, and strivings. •“invested with a variety of fears, obsessions and inhibitions that distort its serviceability for market calculations.”•projection of emotional and psychological values of money far exceeds money’s relative economic (rational) value. • attitudes toward money are entirely independent of a person's income.
Even though there are some things money can’t buy . . .
“its inability to purchase even happiness is “cast in doubt when life (e.g. children, surrogate motherhood), death (e.g. contract murder, abortion), [and] love (e.g. bridesprice, prostitution, contributions, philanthropy) are all bought and sold with money.”
Wilson, Valerie, THE SECRET LIFE OF MONEY: EXPOSING THE PRIVATE PARTS OF PERSONAL MONEY (1999) at 58.
Rationalizing our Use of Money
Putting $$ into savings at 3% while paying credit card interest at 18%
• “saving” $$ by buying things “on sale”
• spending unexpected windfalls on luxuries while continuing to worry about retirement
• ignoring “sunk” costs
Treating differently
• $$ earned by women life partners
• $$ earned by children
• $$ given to children
• $$ received as gifts
• $$ won in gambling
Having Money: security, status and self-esteem. But “What good does it do you to own the stars”
Earmarking Money
lavish weddings
• expensive funerals
• ivy league educations (social capital)
• travel
• gifts
• charity in response to national disasters (i.e., 9-11)
Peeling the Onion of Injustice
Money Communicates Responsibility, Sympathy, Remorse & Expresses Community Values
•Voluntary monetary transfers demonstrate acceptance of responsibility for the consequences of wrongdoing, sympathy for those less fortunate, solidarity with members of a community that has suffered misfortune, or obligation to family members or others.
•Socially mandated transfers--in the form of fines, civil damages, alimony, child support, social security payments, or taxes-- express group norms. •Norms establishing the amount of money that should be paid in these different circumstances convey meaning about how large an obligation one set of people has to another and how much recipients deserve from these others.
American Metric for Injustice is Money
Money reduces the qualities of dissimilar experiences into similar ones by using a common metric. In law, the metric is the cause the action, comprised of pre-determined elements that give rise to a right to redress in a Court of law.
On being fired from her job as party planner and celebrity magnet at the Hollywood Roosevelt and Beverly Hills Tropicana Hotels, Ms. Demme said, “I feel accomplished at what I did. I feel hurt at what went down. And I have a lawyer who will deal with my hurt.” New York Times April 16, 2006
Injustices that the law will rectify
dwarfed by the injustices it will not. Many non-actionable injustices are considered frivolous claims. Because the parties’ “interests” almost always include non-actionable injustices, mediators can address the entire world of injustice.
Actionable
injustices *
* Much larger
than actual size
World of
Injustice
“Objective” Actionable Injustice commensurates Wrongs
Stories are subsumed in legal theory. Facts exist simply to be plugged into legal theory, and facts that cannot find a home in some legal element are deemed virtually irrelevant. The process of theory development is quantifiable, neat, and quite sterile.
Who monetizes injustice?
MEDIATOR AND LAWYERS TELLING LEGAL STORIES?
CLIENTS TELLING BROADER STORY OF THE DISPUTE? WHERE ONE WAY OF THINKING AND
TALKING IS DOMINANT Some experiences become
privileged Some experiences are
excluded
DAY IN COURT = PUBLIC ACKNOWLEDGEMENT OF MORAL WRONGDOING
The primary reason such a great percentage of the 9-11 victims’ families were reluctant to sign up for the Compensation Fund was their desire to “get their apology or acknowledgement of fault and responsibility from some group or organization” rather than to simply accept money for their losses.
Tyler & Thorisdottir 2003:361-362.
Story telling
Changes relationship between parties
Alters perceptions of the other’s legitimate needs/interests
Commonalities transcending prejudice
Not kumbaya
Wrongful Burial Practices Case: Mediation of Case against Original Owner after $3.2 million settlement for the 2d owner’s liability
Cemetery shut down by State (bones) Original owner
Inherited map __________’s slough
2d owner paid $3.2 million to settle 9 plaintiffs – 7 buried family members “Today, a ‘credible plaintiff with a
close family member in a poorly maintained cemetery’ has a ‘fair market loss value’ of approximately $35,000 per survivor per body.”
Fair mkt value $2.205 million
1st settlement
Source of $$: legal malpractice action re indemnification for transfer
2d owner covered under ‘cemetery endorsement’ that 1st owner didn’t have
plaintiffs’ attorney: great track record multi-million dollar verdicts for “frivolous” cases
Urban Court known as “the bank” Defense costs to point of trial would be at
least $400,000 Filmed disinterment provoke a jury into
making an unprecedented award to the family
The references on the historic cemetery maps to ‘_____ slough’ could easily ignite the jury vs. both defendants
Role Play
Original cemetery owner Matriarch of African-
American family Mediator
Obtain story of family’s distress
Obtain story of historic wounds
Obtain story of owner’s resentment
But first let’s talk narrative
HOW TO USE NARRATIVE
NARRATIVE VIEWS ALL EVENTS TAKING PLACE WITHIN BEING SHAPED OR
INFLUENCED BY LARGER STORIES IN CULTURAL CONTEXT.
MEDIATOR DISCERNS WAY IN WHICH STORY HAS DEVELOPED INDIVIDUALLY BUT ALSO
IN CONTEXT OF LARGER STORY NO OBJECTIVE FACTS
WHAT IS THE CLAIMS ADJUSTER’S STORY; PRESSURES; PLACE IN PECKING ORDER; NEEDS; HOW DOES HE/SHE VALUE MONEY; WHAT DOES SETTLEMENT MEAN TO JOB, FAMILY, SELF-ESTEEM?
Language shapes
Sense of who we are What our needs and interests are What we believe we’re entitled to
Social norms Cultural norms
Legal money vs. equitable money Lawyer money vs. client money Lawyer justice vs. client justice Lawyer dispute vs. client dispute
• the system is race/gender/class relations in the socio-cultural, norms, values and beliefs of the society• reinforced by policies, traditions and procedures of institutions/organizations• surface in the patterns of interaction and feelings
•between the parties •between the parties, on one hand, and you as a neutral on the other
•specific issues presented and reactions of both parties and the neutral may be nested within these structural sub-systems and relational systems.
Presenting Conflict /Dispute may have a multi-level source, each which may be nested in the other
Externalizing conversation
CREATES OPENINGS FOR REVISION OF THE CONFLICT NARRATIVE TO STORY WITH ALTERNATIVE INTEPRETATIONS AND MEANINGS OF WHAT HAS HAPPENED IN THE
PAST AND WHAT MAY HAPPEN IN THE
FUTURE.
Plaintiff’s story
Defendant’s story
Reconstruct Conflict Story
Parties author new conflict narrative new interpretation of other’s
actions New interpretation of
relationship Mediator
Emphasizes commonalities & unrecognized agreements
solicits experiences outside plot line of conflict story
Preventing or Breaking Impasse
The Mediator’s goal interrupt cycles of interaction
focused on blame, guilt, accusation and denial
These are states that cause impasse
Corrective Justice
the re-establishment of the moral balance between the parties to a dispute; a form of public accountability and a “legal symbol of society’s commitment to recognize the dignity and bodily security of each individual.
Money Communicates Intent andSocietal, Moral and Business Values
We remain ambivalent about valuing physical injuries and loss of life
In every society with surplus wealth, legal systems have evolved to replace vengeance and feud with systems of monetary compensation (blood money, wergeld or composition) for personal and commercial losses. Ancient Babylonia and Anglo-Saxon legal codes contained schedules of payments for common types of personal wrongs such as killing, maiming and theft.”
Cautions for Mediators
Influence outcome by giving more legitimacy to certain stories than others
Emphasize certain concerns and aspects of the parties’ stories than others
Interpret what is being said based on own attitudes, beliefs and experiences
Marginalize one party’s story by how it is reframed
Invite or discourage one party from developing story more than the other Contradicting other’s story more
More cautions
Mediators preserve, delete or transform the parties conflict story by how they formulate, describe, explain, characterize, expand, translate, differentiate, summarize, acknowledge, validate, legitimize and delegitimize what is said during the mediation.
CONCLUSION
It’s never “just about money.” Peel the Onion
Immediate conflict (among the people)
Underlying societal conflict (of the people)
Nested layers of conflict Distributive Justice
Equity Equality need
Money meanings of the stakeholders Psychological Sociological Historic Cultural
Narrative process to resolve or prevent impasse