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The A is for Activism
Jennifer W. Reynolds
Editors’ Note: Negotiation, mediation, and arbitration—the three major practice areas of ADR—have become so mainstream that many argue that the “A” of ADR, which historically has stood for “alternative,” no longer applies. But modern ADR originally developed as a set of practices outside the mainstream, intended in large part to promote social transformation and empower individuals. Reynolds argues that these activist roots of ADR should not be forgotten, and in fact should spur new research and pedagogy around activism, community organizing, social movements, and other “extralegal” approaches to changing law and society.
Two years ago, I met with a local activist group working for the rights of the homeless. They wanted help preparing for an upcoming meeting with the City Manager, who had announced plans to relocate one of the city’s homeless encampments. The activists initially sought help from a local civil rights attorney, but she advised them that negotiation was likely their best option and referred them to me.
We met at the law school and spent two hours engaged in typical negotiation preparation activities: sorting through the history of this particular issue; developing realistic alternatives to negotiating, such as demonstrations and social media outreach; identifying the various stakeholders and interests at stake for each; assessing the current and desired status of relationships between the activists and these various stakeholders; and coming up with a preliminary set of options based on the interests at stake and the group’s considerable knowledge of possible camping sites and resources. By the end of the meeting, we were able to distill the activists’ interests and desired outcomes into a list of talking points for the proposed agreement. The group was pleased with the progress we had made, and we agreed to meet again to talk about process and strategy.
That second meeting did not happen. The activists’ appointment with the City Manager ended up taking place sooner than expected, and there was no time to reconvene at the law school. The group brought its talking points to the meeting but ultimately the City Manager decided on a transition plan for the camp that not only was wholly repugnant to the activists but also, at least according to the activists, had been his plan all along. The activists felt worse than ignored; they felt humiliated by the interaction itself, sent packing after they tried to participate in constructive dialogue and provide input. After the meeting, my main contact with the activist group announced that she could not participate in the transition in good faith so instead would focus her energies on civil disobedience and on filing a civil rights lawsuit on behalf of the campers. She thanked me for my help and expressed hope that others would continue negotiating, but stated that she needed to pursue a more “radical” path and therefore would not negotiate anymore. The City Manager proceeded with his plan.
Why did the meeting with the City Manager go so poorly, given these facts? Possible answers to this question will depend largely on perspective. From the perspective of a negotiator, the meeting was a disaster because the preparation was insufficient, resulting in failure to develop a communications plan and strategy that could have highlighted the short- and long-term benefits of collaborative efforts around the camping agreement. This strategy also could have anticipated an early adverse result, like the one that actually happened, with contingencies in place for extending the negotiation process, changing the players, and drawing on alternatives to create short-term negative leverage. Additionally, the demanding and often unpredictable pace of the activists’ work made it challenging for them to enlist resources from the law school, which itself had no real structure in place to provide ongoing support for these kinds of efforts. With better structural support and a more fully developed negotiation strategy, the activists would have stood a much better chance at reaching an acceptable negotiated outcome.
From the perspective of an activist, the meeting was never a negotiation in the first place. In fact, the group may have been lulled into a false sense of security by coming to the law school and adopting more mainstream approaches to dialogue, using the corporate-speak of “negotiate” and “interests” and “options,” when in reality many activists believe that their power to effect change comes not from structural authority but instead from their principled positions, their capacity for mobilization, and their willingness to resist authority and decisions that they believe....
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