Mediation Can Be The Better Way

In ‘Nature In Court: Conflict Resolution In The Ecozoic Age’ [ewl, 214-223], Liz Rivers argues ‘there are better ways of resolving environmental issues’ than the traditional adversarial litigation. For an example of a traditional adversarial law that leaves many feeling bewildered and at a loss, we have to look no further than Canada’s Bill C-38, which changes or guts completely many environmental programs (remember, this is supposedly a budget bill), such as shutting down the unique Experimental Lakes Area in Northwestern Ontario. Such actions have many scientists bewildered, including David Suzuki.

Experimental Lakes Area

This is law according to the old paradigm, known as ‘Empire’ or ‘Industrial Growth Society’, whose precepts are:

  • economic growth can be unlimited
  • the environment is a resource (an example of anthropocentricism)
  • the so-called ‘free market’ can solve all our problems
  • we can achieve happiness through consumption
  • humanity is independent of the biosphere

Newton

This kind of law leads to litigation, a conflict ‘resolution’ scheme that seeks fault and blame and creates winners and losers. Criticisms of this example of the Newtonian worldview are that it’s…

  • reductionist
  • mechanical
  • in decline
  • rigid
  • adversarial
  • can’t evolve
  • retributive
  • punishing
  • past, not future, focused
  • purports to be ‘objective’ and discounts feelings and relationships

Copernicus

Rivers calls for a Copernican [paradigm] shift, which makes me wonder, what is gradual evolution in human terms? What is sudden? What is a paradigm shift?

By the way, Jean Vanier writes that ‘bad leaders are concerned only with rules and regulations. They do not try to understand how these affect people. It is easy to use the law to cover an inability to understand and listen. We tend to impose rules when we are frightened of people.’ (Community and Growth, 226) Remind you of anyone? A boss, a politician, a lover, or a parent, perhaps?

A new paradigm, which Rivers calls ‘Earth Community’, is biocentric and offers:

  • the enhancement of creativity, spontaneity, community, wildness
  • material sufficiency
  • non-material abundance

The Balance of Justice

‘This leads to a very different type of jurisprudence’ where

  • the universe (not human) is primary
  • human laws must operate within environmental limits
  • rights are ‘inherent in existence, rather than something granted by human society’

Our language itself is embedded in ‘a Newtonian worldview of separate entities clashing …, [and assumes] at the end the disputants go their separate ways’ which is ‘nonsensical’ in an ecosystem.

Mediation more closely resembles an ecosystem than does litigation, for

  • mediation is flexible and forward-looking
  • participants create their own outcomes
  • mediation ‘seeks to uncover and meet underlying interests and needs’
  • mediation is better suited for complexity
  • it values feelings and relationships
  • it tends to bring out the best (litigation the worst):
    • rehumanizes
    • encourages listening, empathy, flexibility
    • honours emotions
    • recognizes and enhances our interconnectedness

An Old Friend

[I’m burning old friends, meaning I’m copying CDs onto my hard-drive–old friends like eccodeck.]

Rivers writes that mediation, which has been around since the mid-1980s in the West but for centuries in some indigenous cultures, is ‘part of a wider movement which includes processes such as consensus building, stakeholder dialogue, conciliation’ and other processes. ‘However,’ she cautions, ‘these processes are firmly rooted in the human dimension and so need to develop further.’

Jung, not so young

Rivers explores Jungian psychology, which identifies four ways of knowing:

  1. thinking
  2. feeling
  3. sensing
  4. intuiting

However, she says our legal tradition, ‘which remains stubbornly situated in a nineteenth century view and atmosphere’, has over-emphasized thinking and devalued feeling, sensing, and intuiting. The sense of disorientation is like having a Newtonian physics worldview when quantum physics was discovered. ‘We need to enter the realm of quantum conflict resolution,’ Rivers urges. ‘A magical world where conventional assumptions are turned on their head’.

Rivers examines Environmental Constellations, ‘a remarkable tool’ [Zita Cox, http://www.environmentalconstellations.com/%5D’ which uses ‘all four dimensions of intelligence’.

Rivers also touches on other methodologies:

In a table she summarizes and contrasts the old and the new in these categories:

  • underlying worldview
  • values and attributes
  • jurisprudence (concepts of law)
  • rights
  • conflict resolution methods
  • what next?

Finally, Rivers wonders if we need rights: ‘maybe we need the concept of rights in the short term to restore some semblance of balance [of rights versus interests and needs], and when that has been achieved we can shift all members of humanity to a more sophisticated approach of looking at interests and needs.’ [223]

Baby Steps

Evolution or revolution? Baby steps or paradigm shift? Patience or impetuosity? Seize the moment or seize eternity? Be in the Eternal Now or plan for 7 generations? In her conclusion, Rivers calls for both. In the 1970s, Neil Young sang, ‘it’s better to burn out than it is to rust.’ But did he burn out or did he rust or did he do something else? Has he given up? My occupational therapist said many people in my situation give up, so I asked my outreach worker why. He said, fear. They fear the unknown, they fear losing. Our adversarial litigation system reinforces that fear. I’ve seen it before, people doing work they hate because they got a mortgage. They got kids. They think such security buys them a future, but it doesn’t, does it? No one knows the future, but Mr Young may be on to something: rust never sleeps. Even if you don’t burn out, don’t give up either. I told my outreach worker to me fear of the unknown is a signpost: ‘go this way’. Sure, there’s healthy fear, like ‘don’t go over the falls’ or ‘don’t drive like an idiot’, but since we’re each gonna die anyways, we’re gonna lose, or really there are no winners and losers. There’s really no unknown in this life, so what are you afraid of?

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