 We're here today to recognize, honor, and learn from Karen Mechometo on the occasion of becoming a Chancellor's Professor of Law at the University of California, Maryland. When I was named to be the founding of Dean in the fall of 2007, I set out to contact some superstar faculty around the country to gather the founding faculty. The very first people I contacted was Karen Mechometo. She truly is a superstar, having had a tremendously distinguished career. She graduated of Barnard College in the University of Pennsylvania Law School. She worked for a short time in legal services, where then becoming a clinical professor at the University of Pennsylvania Law School. She joined the faculty of UCLA Law School in 1980, when she served with great distinction for almost 20 years. In 1996, she accepted the position of Georgetown Law School as the AV Chattel Professor of Spear Resolution and Law. She's truly an expert in so many areas of law, but her greatest renown is with regard to dispute resolution. She's written many books and articles in the field. She's truly internationally known in the field of dispute resolution. One recognition of this just recently, the American Bar Association Section on Dispute Resolution, gave her the first award for outstanding scholarships in the field. At this point, what would usually happen is the chance that we'd be here to say a few words, together with Kerry, unclothed the chair that's sitting in front of the room. Unfortunately, the Chancellor, to send his regrets, he's literally on a plane right now to the office of the President for a meeting of the Council of Chancellors of Northern California. If Kerry, if you could come up here, we can unveil the chair. Which is not the real chair. This is our proxy chair. We're still waiting for it now. We do give chairs when the professor is here. And Kerry will have this chair, which is exactly like it. It's in front of the manufacturer, which replicals those chairs that are how I like them. And with that, I'll turn it over to you. Welcome, everybody. I did my homework as any good scholar would. And having read the Los Angeles Times this morning, I know that at events like these now, we aren't supposed to do three things. Be self-deprecated, be nice to your mentors, and not have a very long list of thank yous. But I couldn't do that because I have so many dear, wonderful friends and family in the audience. So I'm going to spend a little bit of time thanking some of those people. And then I will tell you what I'm going to do with my 11-time lecture. I really believe in these events, public lectures, and some schools where I stand. And some schools chair and professors actually have to lecture in a few years. I might be happy to do that. As you'll see in a few moments, I love to lecture. So it's not a problem for me. And I hope the Academy awards people But I start with my husband, my muse, my biggest critic, and my biggest fan, without whom I couldn't do any of the work that I do anywhere, now all over the world. And I just want to do a toast if I can because given some of what I'm going to talk about today and the miserable condition of our American public, today's the first day of Bob's 70 retirement from being a political consultant because we can't stand the polarized world that exists in Washington anymore. So together we'll try to do our best to fix it, but a toast to Bob will be now a semi-retired political consultant. And continuing Sherpa, as I take the lessons that I'm going to give you today and take them around your world. Next to me, Hermana, Sylvia, one of my dearest friends, and Janice Nelson, one of my dearest dearest friends and very best students. Janice and I went to college together and then she was my student. She had a law school many years ago and now is one of the leading students. So I'm going to share with you today my friend Susan Gillick, my oldest friend from Los Angeles and my former collaborator and teacher of UCLA. And to my new colleagues, my new friends, it's a pleasure to be with you today and to share this event with you. So let me tell you what I'm going to do. I've done a whole bunch of these lectures and I thought what I'd like to do today is bridge the learning it gives us or trying to deal with this extremely polarized world that we now face in education, in the polity, in law, in media, in entertainment, in ethics, in cultural production, everywhere. We live in a world that's increasingly polarized and so some might say, why is it that I didn't think it's possible to achieve consensus? Or some might say, why is it even desirable? So if you'll let me, as an anti-practitioner, I'm going to like to put theory and practice together, I'm going to talk a little bit about the race, my mentors, my intellectual mentors, very briefly to tell you how these two fields that I work in have come together to try to make the world a better place. So we have theory and practice, dispute resolution, or ADR, which is no longer alternative dispute resolution for those of you who don't know that, but appropriate dispute resolution. And deliberative democracy. Both of these fields have a lot of theoretical frameworks behind them and they together have formed a new field, dispute system design, which is attempting to help public officials, lawyers, educators, all kinds of people come together in facilitated environments to try to make good decisions and reach good policy outcomes. So the big challenge in my field at the moment is how to take what we've learned about individual disputing and the processes that we use to negotiate or mediate or arbitrate and to build consensus and to scale them up. So after I give you a quick trip through some of the meeting rates in the field and what they've contributed to the field, I'm going to end with a little very concrete example and that is the healthcare town hall meetings with by all accounts your abject failures in terms of all of the theory that I'm going to be talking about. Where's Michael? This is for my current students. So you're all going to laugh because my students here over and over again about how I despise power points. But I decided today that it might be good if you actually see the faces of some of the great mentors in the field and so I've actually put together a couple. So where's Michael? Michael's been taking pictures of my doodles in my class which someday we're going to sell at great modern art. And I just want Michael to document the fact that I'm actually using it. Much of our theory in conflict resolution and delivered democracy arrives from the social philosopher Jürgen Habermas who coined the phrase for many that many of you will be familiar with, ideal speech conditions. One of the conditions under which people can make good decisions and the people who are acted upon by decisions can actually have a role in arriving at. And he has many, many, many, many, many books in which he's articulated a whole bunch of conditions under which people can make good decisions by trying to persuade each other through rational arguments. And the idea is that by trying to persuade we will reach good decisions. As you'll see later, I'm quite critical of the rational only persuasion only, debate only, legal rulings brittle results of court decisions or problems that are solved in very on-off binary ways. And Jürgen Habermas doesn't like those either but he remains quite committed to the idea that decisions should be made by rational persuasion and arguments. If you disagree with me, we can talk about it later. But not in debate mode in open inquiry mode. My next big hero is Stuart Hampshire, recently deceased, a British moral philosopher who spent much of his career also here in the United States. And in his two thousand channel lectures and a wonderful little book that I command everyone, what you get out of this lecture isn't the reading list by the time we're done. Stuart Hampshire spent a lifetime trying to understand the substantive good. What are the human qualities and the human goods and the values that all of us might ultimately agree on? I think these channel lectures are for the end of the end of his career. He said, I cannot after all this years come to any understanding of substantive good that we can all agree to. But he said I think the great beauty of the Anglo-American system is Audi, Alteram, Parton, here the other side, the adversary system, the ability also to make rational arguments and to try to persuade others of what truth and good and right and justice might be. And so he argued that process itself might ultimately be the most important value. And that's what I've been doing all in my career, talking about good processes for good quality decisions and outcomes. Stuart Hampshire, who is really quite concerned with substantive good, has a wonderful line in his book, which I've got all of my A.R. students to spend to be true for any student or any lawyer or any person involved in any conflict. The skillful management of conflict is among the highest of human skills and I hope those of you who are students here at UCI will learn how to use those skills. So we finally get to a woman, appropriate for a feminist here, it's like myself. And this is the mother of conflict resolution. I suspect many of you in the audience have never heard Mary Parker Follett, but in a moment you might hear why you should have heard of her and why you might have heard of her. Mary Parker Follett was one of the first women to go to Harvard College that she couldn't receive a degree as a woman and we could use her today because she was a conflict analyst who worked in social work and labor relations and might do us a little good in Madison, Wisconsin and Columbus, Ohio and other places where public employees are trying to hold on to their union rights. Mary Parker Follett as a true conflict resolution professional was someone who worked both sides and as I will say in a few moments actually worked all sides. She's the first major conflict resolution theorist. So for those of you who may have heard either through getting to Yes or some other piece of work that you read in the negotiation, if you've heard the famous story about a woman sitting in a library and being unhappy about being too cold and the man that she's sitting next to is too warm so they could have a big fight about it. It was Mary Parker Follett in real life who realized that if they went to the next room and opened the window in the next room that the man would have some cool and breezes and she would not have a draft. Others of you may have heard the story about the orange. Two sisters fighting about an orange, one single orange, two sisters wanted and they'd go to their mom and their mom does what my mother would have done and that is to split the orange in half. What's wrong with that solution? Alex? I apologize. Do you remember? No. It sounds perfectly reasonable to me. No. Do you remember? Right. So, what Edgar remembers from last semester is that if the mother had only asked the sisters what they want the orange for, she would have learned that one sister wants to use the rind to bake and another sister wants to eat the orange. Now, it's hard to summarize one's whole career in one line but that actually happened to me when I came with a piece of chocolate cake. My brother and I always thought about the last piece of chocolate cake and when I was old enough to talk and he was old enough to answer I said, what do you like about the cake? Remember this one? I think I told this one. So I liked icing and he liked cake. So by cutting the cake this way we could get 100% of what we want and not have to split the difference or compromise. In my world, compromise is a bad thing because it's unnecessary and unprincipled and it's often just piece for piece. Notice, Mary Parker followed and said friction is a good thing. The music that a violin makes that's friction. We get music from friction. We get progressive movements from friction. The anti-slavery movement the feminist movement, the civil rights movement those were all moments of great conflict and friction. So don't hear me when I talk about dispute resolution to be saying we should never have conflict. We're very productive, we learn, we move forward and we done compromise. We come up with ways to split the arms or split the cake that can make everybody more happy if they engage in simple compromise. Mary Parker followed tells us there are three modes of dispute resolution dominance, control, power and competition or splitting things up. Compromise, which she and I both think is often unnecessary and should not be pursued for all of you parents out there and your kids to compromise all the time is not necessarily the way to achieve the best decisions. Instead, Mary Parker followed was the first to talk about integrating the needs and interests of both sides, or all sides as I'm about to tell you. So for the lawyers in the audience, some of you in fact, if anyone went to Harvard might in fact have studied with my other great hero, mentor, Lon Fuller. A noted jurisprudence, some of you may know Fuller from the heart of Fuller jurisprudential debate but to me, he is the hero of the book, the principles of social border. And I get flattered when I teach at Harvard when people say that I am the new Lon Fuller. That could not be a bigger, at least not the heart of Fuller but just this part. That couldn't be a bigger compliment. Lon Fuller like me believed in the integrity of different processes and that every good lawyer and problem solver and conflict resolver in the world needs to know that there are many processes, process pluralism and we need different processes for different purposes. One size does not fit all. So Lon Fuller wrote a series of essays, beautiful essays that every law student should read. On the functions of the judication and when we need a principal decision that's public and changes the world around the board will be way for me. There are times when we prefer arbitration someone who just decides in a group of people that already know each other labor manager relations we need a decision, commercial relations we don't know any relations we can't waste a lot of time in the courts we may not need a precedent but we need a third party decision. Negotiation my personal favorite. Why? Because negotiation gives power to the parties to work out what's the best solution for them. And Lon Fuller was one of the first law professors to take negotiation seriously as a theory and as a practice. And he worked during World War II to help work on the war labor board and to help parties allocate various resources and to muster for the war. He also distinguished mediation for arbitration there are many mediators here I know mediators don't decide they facilitate the negotiation processes in which the parties still control the decision but they need help and in the world if we went around it today we would see many many places where we need the help of that third party decision maker. Lon Fuller is less well known but his writings are fabulous for talking about the different process that legislation is for those of you studying common law and public ordering and criminal law and looking at statutory analysis. Legislation is yet a different mode of decision making. A group of people elected by us make rules for average situations. They are attempting to make rules and laws that will govern the average situation for all of us which is different from parties making decisions that might be appropriate in particular settings. And I'm going to return in a moment to what he had to say about voting and decision making. Voting is a terrible way of making decisions. Yes it is. I'm going to talk about the liberty of democracy but democratic voting particularly majority voting is often very dangerous. It increases brittle relations it increases relationships between minorities and majorities. It's a very crude way of doing things. There are much better ways that people or among others have suggested that we should look at some of these other ways of making decisions. Second to last of my great theorist, so if you do nothing else after today all of you in your spare time we will go out and get Marche Sand's latest book The Idea of Justice. Marche Sand Nobel Prize winning economist has become a jurisprudence a philosopher of law and social theory. He's not a new hero, he's been my hero for a long time but I was able to hear him talk about his book when I was teaching in London last year and he has a lot to tell us about the liberty of democracy and dispute resolution as well. First of all, Marche Sand has done what I think is a brilliant critique of his friend and colleague John Rawls. In his book he says we should stop chasing the perfect. No institutions that we have created and imagine have the possibility to actually ameliorate injustice perfectly. As philosophers and legal theorists write about the search for the ideal good and justice they achieve nothing in the real world. By getting there by telling us we should stop looking for the transcendentally just institutions and Marche Sand takes us on a lovely path through Indian philosophy to tell us that nothing that Western philosophers have invented is all that new. So he locates much of his theory in powerful thousand year hundred year old theories that have come from the other part of the world and he argues that we would all do well for some comparative broadening and that's why my work has taken an international turn in the last few years. We would all be there to learn from outside of our own Western traditions and particularly our narrow American and Anglo traditions and he, like others before him has said, the perfect should not be the envy of the good. We should remediate injustice. We know it when we see it. We should do our best to get rid of injustice and make the world a better place even if we cannot agree on all the just institutions that we would have in a perfectly just world. Marche Sand situates himself in the in the tradition of another of my heroes, Adam Smith not for the economic economic hand but for his much better book in my view the theory of moral sentiments. Adam Smith saw himself as someone who believed in altruism and thought with a model of the impartial spectator, the person outside of the situation would take a look and tell us, correct us when we're doing things badly and we might do them better. And Adam Smith thought from the place that he wrote in Monroe that we could make a better world if we took a look at others and didn't stay so narrowly minded. Marche Sand takes up on that and calls himself with a group of other philosophers a new group of philosophers working to try to make the world better for eliminating injustice rather than attempting the ideal and the cause. Now I'm going to come back to this in a moment too. Marche Sand's book is also a master of his own economic work for which he won the Nobel Prize Rational Social Choice Theory Con d'Orsay and narrow-sterm these are ways of voting and making decisions in our policies which he is seriously critical of. They do not get us the best results. Many of you know more mathematics than I do. I studied it in game theory. We know that these kind of votes often get us not the best results but races to the bottom were satisfying rather than satisfaction results. And Marche Sand has suggested that we engage in multiple far more rigorous empirical evaluations of much more variations and using many more variables whenever we attempt to assess anything. Finally, I'm almost done with the theory part for those of you who want to find out about the real world. In a sense one of my biggest heroes in terms of the work that I've been doing in the last ten years is John Elster a political theorist a political scientist and a student of comparative constitutions and in a moment we'll get to the one slide that is my tiny little bit my tiny little bit of contribution to all these great thinkers. John Elster did an amazing thing some years ago in many many books but in 1995 he wrote a wonderful article called strategic uses of argument and what he did in that book was to contrast the American constitutional process to the French constitutional process and he said many people like to think that first order better processes are public principled and conducted in transparent plenary sessions whose constitutional process was that ours that was the French constitutional process the French in their French Revolution in their formation of the French assembly met very publicly they had the equivalent of press conferences at the end of the day and they announced what they had arrived at in that day many of the people who did the press conferences were guillotined rival rigid principles if you didn't agree with us you're the enemy off at your head and all this was done in the spirit of first principles of publicity, transparency and very principled decision making so Elster says let's take a look at that messy little process that many of you in the audience are now studying the American constitution terrible process the worst compromise of all the compromise to allow slavery to continue to exist after the Declaration of Independence said we weren't going to be bad people anymore so compromise on slavery compromise on democracy the senate is not a democratic institution it does not represent one man one vote and it was all men in those days and in those days the senate was appointed the electoral college which was still suffering the American constitution was filled with compromise small state, large state, city rural, agriculture beginning industrialization lots of compromise and for those who haven't been to Philadelphia the constitutional convention and the debate around it was conducted in secret and unlike plenary sessions was conducted in committees tests people had different tests and a group that was working on article one had to make deals with the people working on article two I don't have it up here but I recommend a wonderful recent history by calling mayor of the ratification process in which taking it to the streets taking it to the people a lot of these decisions made in the original constitution were seriously criticized in one of the few somewhat deliberative democratic efforts in our early American history so what we get out of John Elster is sometimes second best process secrecy committee work compromising in a bad sense I told you I'm critical of compromise but the compromise allowed the constitution to be enacted to be ratified and with the exception of our very bloody civil war which was necessary to eliminate slavery and many many amendments to the constitution the US constitution remains it still is the most robust and long-lived world no longer the model for other constitutions I spent this weekend with one of the justices of the first constitutional court in South Africa and for those who have studied that process who would know South Africa did not look to the American constitution much when they were drafting they looked to the Canadian constitution among others because their charter of human rights and bill of rights was much stronger and differently now but that's a lot should have been on the day so this is my little bit of a contribution to all these great thinkers and then we'll take it to the practical level in a series of articles that I've written in the last few years I've come up with this chart which I'm happy to give to anybody who wants it and could publish in a couple of places and it takes Elster's observations about the creation of constitutions and the importance of different processes and melts them with some of the learning we have from conflict resolution and it says we need lots of processes and the processes we need depend on what we're trying to accomplish different goals and different purposes produce the need for different processes and in turn different processes produce different outcomes we should choose our processes extremely carefully as this small little faculty is trying to learn choosing our processes produce outcomes processes are never neutral the choice of any voting system the choice of any way of conducting our business produces certain results but just to give you some idea of what I'm talking about so taking Elster's different modes of trying to create constitutions and that's one dimension are we involved in a constitutive act of creating new entities, new constitutions are we dealing with an ongoing institution like this one it's an ongoing institution it's also got constitutive problems and they might mention in this context that in the French constitutional process when the French were deliberating about their national assembly they ruled that anyone who participated in the constitutive process would not serve in the French assembly once it was created not so the American constitution many of the drafters of the constitution then had what we knew today and my other field legal ethics called a conflict of interest those who make the rules we should separate the constitutive process from the ongoing process and that's one dimension in this chart what are we trying to do create a new thing, a new entity, a constitution or create some good rules for ongoing institutions or for those of you who have participated as I have in social movements in marches is it an ad hoc group is it only going to try to disrupt the World Trade Organization in Seattle once or is it going to try to become an organization that lasts longer what you do in a one-off demonstration in deciding who goes where and who does what is very different than what you do when you're creating a constitution for a country or a constitution for an organization an NGO or a government organization those are different processes and they require different ways of operating now my big contribution to this or little contribution I'm supposed to be self-different so my little contribution to this is to say that while all the rational philosophers from Habermas on who I admire greatly think that we human beings will do best if we reason together and we use principles and argument and persuasion and debate and Habermas and many others would say may the best argument win poppy cop say aye when I'm in England and I say worse outside of these public domains partially from my political activism but also from my feminism reason is not the only thing that we do and in the mid 90's when I was working with the conflict resolution center at Stanford and very distinguished Nobel Prize winning folks like Daniel Kahneman and Avis Torski Lee Ross come back to him in a moment and others were working on why we don't reach more with our shaved agreements they began as most rationalists do by trying to examine the conditions under which people behave with cognitive errors irrationally a little pipsqueak me I raised my hand and I said why do you assume that the rational is the norm for many kinds of decisions that people make not the irrational necessarily but the irrational we are motivated by our hearts by our stomachs every day as much as being motivated by our heads and so my work in dispute resolution recently both in individual mediation kinds of disputes and taken large, scaled up for healthcare and other public policy decision making is to try to figure out how to take this chart and let exist in the room at the same time rational principles the appeal to law and principles I have some philosophers in the audience so they'll be looking at the principles I'm wanting to know the right and reasonable and argument and do anything and I, on the third column here we say well we often take account of our emotions, our passions our religions and our ethical values I would say that for me in my professional career probably one of the biggest motivations has been my ethical values I have quit organizations I have decided not to participate in things when I think they are morally wrong I'm lucky, I attend so I'm free to make those choices many people are not but many people do and in a moment when I get to the healthcare debate you will see that for many of our fellow citizens in the world the passions, the emotions the values far outstrip any appeal to reason and to argument so modern lawyers and politicians and teachers and writers, all of us must figure out some way to figure out how to create processes in which these things that people feel are allowed to be present in the room just as much as the appeals to arguments and reason now I've been talking about the middle column that's the one I mostly work in and that's the one that John Elster did recognize in the American Constitution process he said the only way we got anything done in the American Constitution was by trading, by bargaining preferences and that's the column that feminists are most happy in and that's the column that my colleagues at the Harvard program on negotiation are most happy in they would say every time I do this there yeah well there's number one, the principle that's what the jurisprudence and the legal theorists do and a little bit, a little bit not much but a little bit the constitutional law scholars and then you guys, you feminists and other people you're complaining and telling us the truth is most of the work in the world gets done in the middle column and that's when we trade preferences and we look for ways to take that orange or that chocolate cake or that window and make it work for everyone trying to integrate if not ultimate just principles Rawlsian principles at least some things that we can live with ways in which we can move forward in the world by integrating our different needs and interests and creating something better by expanding the pie using bargaining as a situation in which we can take our mutual needs and interests and make something better or different than we have before so all negotiation tells you is after negotiating you should be better off than you were before you negotiated that doesn't necessarily mean it's always going to work but that's the idea so I'm not going to spend much more time on this because you're interested in those and you're going to stop being my students so now let me take it from all of this theory for a few moments to talk about what went wrong in healthcare today so I'm doing all this work at both theoretical levels while I'm practicing doing mediations and running public policy meetings and facilitating law school retreats and doing all this sort of work and the question is how can we put all this stuff together and really make it work so in 2008 when Obama was elected I and a few others were called by our colleagues of art to meet President Obama to tell him how he might try to develop a more consensus based and I actually refused I said this is really silly you guys this man knows what he's doing he's been a community organizer and I do a little teaching at Harvard every year so actually in the 2000 I think it was October before the election we went down to the hall I guess I'm now going to be invited to find out yes indeed President Obama again on mediations so for those of you who are not happy with what he's been doing while he was competing a lot he's trying to reach across the aisle to meet with the Republicans to see if it's deep it's deep in his education at Harvard after a transition project it's deep in the way he's developed multicultural spanning a number of different worlds and like me thinking that the world could be made a better place there's less of that riddle on about blue-red sort of decision making and more answers to come together I'm going to be trying to argue and discuss this because I know people have very many different views about this and many people whether you're a Democrat or a Republican very unhappy with what seems to be too much conceiving to the other side but I want you to know that I think it comes from a very principled place I didn't think that a group of us public policy facilitators and a surprisingly educated president who knows a whole lot about this nevertheless when somebody both in the White House and in those that were drafting the health care bill decided that since Obama had had such a great result in the election we should take it to the people and do that change that he had campaigned on and we should have town hall meetings to discuss alas what was wrong with that well a lot of things we've been paying attention up until now you should know that although some people designing these processes thought it was a good idea they in fact didn't consult a whole bunch of us professionals who do this and it was never clear what the purposes of the town hall meetings were originally I had embedded in my little PowerPoint but I can't do it some illustrations of some examples so I'll tell you the good ones and you can go look them up I actually learned that YouTube sometimes disappears so in a moment I'm going to talk about contrasting two different town hall meetings that will run very differently and I had them when I was writing the paper I'm going to let a lot of these lecturers base and they're gone I'm going to tell you about them anyway so what I did with the town hall meeting was what was the purpose of going to the public and this town hall means which were run by secretary of health community services Sibelius many many senators I'm going to talk about the differences briefly between senator my respecter and senator mccastle from Missouri in the section my heroine we only want to talk about some of this stuff people really thought we could all have direct democracy or a deliberative democracy and go into rooms with people in much much larger groups than this and talk about health care but what was the point of going to public health care to argue with them to convince them to use reasons and principles that this was the best health care they were ever going to get some people want that what they didn't know about was the next thing on this slide a very important concept in my world reactive devaluation if the blue president is saying let's have health care the red republicans are going to say no health care if your mother says you're going to go on your galoshes when it's raining you're going to say no I don't really want to go on my galoshes when this one over here tells me that I shouldn't have a piece of chocolate but I had enough pieces of chocolate the first thing I do is reach for a piece of chocolate when the plaintiff says I want three million dollars for this case what does the defendant say you can have plenty of that that's reactive devaluation that's a concept that comes from cognitive psychology and is labeled in theory that tells us we respond not to the content of a message but to who gives it to us that's why we need mediation plaintiffs and defendants can't talk to each other sometimes parents and children can't talk to each other sometimes even people who love each other can't talk to each other so they need a little help so that they can hear the message without it being associated with who's giving the message so the people who planned the town hall meetings had no conceptions so as you all know they were taken over democracy was subverted by those who went and had planned indeed the people many of them who interrupted those town hall meetings some of you may know this were operating out of the Saul-Linsky playbook they took a very blue book rules rattles that had to organize and motivate people and using those illusory principles they flipped them on their heads and they actually have in the paper that I have for those of you that are interested I have a list of the email messages that went out to the people who were told to go disrupt and say we are the Democrats we are the ones who want democracy we want to talk about what's wrong with health we want to talk about what's wrong with you and they had a cruxie of questions to put to the senators and the cabinet officers because in Obama although his town halls tended to be a little bit calmer because he was scary there and the idea was to use the rhetoric of deliberative democracy to ask questions when instead their intention was to disrupt and the people who were running these things in many cases senator specter all by himself senator mcassel all by herself secretary civillius all by herself out of podium totally unable to manage it what can happen that's what I teach you guys so those of you that are students next year advanced multi-party dispute resolution we are going to learn what every lawyer needs to know how to manage meetings how to handle conflict how to structure them so quality decisions and good products come out of them and some of the people who have constructed these things should have known about these things now I will say one other thing that I haven't said yet is the idea of march ascend stuff my fault march ascend was an economist and I said his idea of justice booked as a wonderful job of talking about the importance of numbers so another one of my great mentors so I don't have up here it's hara grapher who was a partner for many years I don't see him today Duncan loose who is one of our distinguished UCI faculty members loose and rape are game theorists look at how numbers matter so many years when I was working with hara grapher we thought that the most important question to ask him to speak resolution is how do processes change when the numbers change all of us do intrapersonal negotiation negotiation with ourselves then we have dyadic negotiations with our spouses, with our partners with our children, with our teachers with our students with our adversaries in litigation with our partners in litigation then we had a third party, a mediator that changes the negotiation now we have five way meetings when a lawyer and a client come together with a mediator five people in the room, sometimes six if they're two mediators, a lawyer and a psychologist and then we can scale it up so another one of my mentors at MIT, and Alex's too Larry Suskind was one of the process designers for the kyado accord negotiations and he had to decide how do you structure a negotiation with 144 countries being represented and each of them had many, many different representatives so that's the cutting edge issue in our field now scaling up understanding the power of numbers how dyadic negotiations are not the same as three party negotiations why? because there's coalitions the minute you go beyond two I'm going to say something with that every girl in the room probably knows what I'm talking about you have two friends you can be your ebf forever way around probably the lingo and the third best girlfriend and we're going to have coalitions for them or in a governmental setting we're going to have legal power so negotiations change and however much we're interested in looking at precisely how and what differences it makes so think about the U.N. now just under two other countries think about any treaty process that we might have how do the rules of engagement in negotiation and how should we vote and should we have a majority vote or should we have a super majority vote or should we have veto powers these are very complex questions and it is a very serious field of scholarship in my field mathematics and gay theory and in the coming together of these fields which is the basis of this talk okay so this is the quicker version of that complicated chart I have up there here are the two challenges in my field and they came together to what extent when we ever get together to try to resolve any disputes or make any policy do we use our head for principled arguments do we have our hearts our feelings our empathy, our altruism for trying to do the right thing our concern about how we treat other people religious values, our ethical values and then finally those deals that we make so how many of our founding fathers had a hard time in their stomach when they agreed to continue slavery we know Benjamin Franklin did Benjamin Franklin actually proposed that one of the first acts of the new congress should do would be to abolish slavery and he was not happy with that process so for those of you who are reading a lot about the history of our constitutional process those guys, the greatest they were did not at all agree about this so one challenge for us is how do we get all of these very human processes into the room at one time so we can make good decisions and then we have to worry about the voting procedures the talking procedures ground rules, who's going to talk, when how do we make decisions and so I just want to mention that one of the things the health care town hold didn't do was engage the expertise that now exists in the world so I've mentioned a couple of them the person I work with and Alice has too in MIT has written a wonderful large book, consensus building handbook with a series of case studies of meetings that do work the people who study the effective numbers would tell you once you get past one hundred and fifty it's not a time of all meeting anymore and once you get past the homogenous conception that we all have of New England towns not totally homogenous but much more homogenous than any congressional constituency would be today town halls are not the process you can use they weren't designed for that purpose and people shouldn't be using them for those kinds of purposes public conversations is a group in Boston that after some of the killings that occurred of doctors that were committing abortions created a fabulous protocol for bringing people together and it will indulge me just a few minutes in my prior life in California several colleagues of mine at UCLA ran a series of public conversation meetings all up and down the state on prop 209 that was the proposition which eliminated affirmative action in education, employment and some government contracts in California and we held meetings all over the state initially at the university only with students and faculty and staff and then we did a few of them outside the general population and used some of these protocols for having a true spirit of inquiry where people ask questions of each other and said what questions do you have about what I just told you let's talk about it what data would you need to answer that question what's your personal experience, your heart where did you come from why do you have these units and people really didn't gave her the coach so we found for example that people had different views about affirmative action with respect to education that was the one that most people many people were still willing to keep strong affirmative action policies for less so for employment and absolutely least support for government contracting little helps and quotas and we had wonderful wonderful meetings where I saw using the public conversation methods where people actually learned from each other but what happened we went to the ballot up and down the boat riddled results rigid results, bipolar results you could only vote yes or no and Prop 209 was very interesting because right when it passed I moved to Washington and there in my Georgetown class for all of my minority students I would have taught at UCLA you couldn't go there anymore you didn't go there anymore you didn't want to go there anymore in a state that didn't allow for any action so my classes and each became richer as a result of that decision but when you think about the nuances that were not permitted in election or voting or litigation discourse where there must be a winner America Speaks is a group that has facilitated meetings and decisions in huge numbers big numbers of people so after the World Trade Center came down America Speaks facilitated meetings of thousands of people in Madison Square Garden with little tables of 10 in which they provided input for what the design should look like, the memorial, what should happen I have a great videotape which I'll get to show in class to some of you search for Common Ground just the same thing, using media producing films and TV shows they created TV shows shown in Israel and Palestine about some of the major issues and by showing television shows and then meeting discourse and dialogue and discussion afterwards and then measuring the effects of what these media presentations did actually did move people from point A to point B so these are just a few, I could go on many many other groups with expertise by putting together some of the theory that I've described and a lot of experience in process design so very quickly this is what happened there was no process design Senator Spector had a lot of these you may recall that Senator Spector changed parties and he wanted to stay a senator it didn't work and as you go on YouTube people really screamed at him and he screamed right back he's a tough guy he's been there for a long time nobody is going to tell him much about it but when he was questioned about some of the details in the bill it was clear he didn't know about it so it was a wonderful moment that I would have shown you here he snapped well I'll understand it when I vote on it even if I don't understand it now not the way it was in France in contrast over here you probably can't see it she became my hero this is Senator in the Castle from Missouri and she stood there all by herself while people were screaming at her and she said I know you're frustrated I know you're unhappy with the government I know you think there's something wrong with healthcare and she actually heard all these people that were screaming at her I don't trust you I don't trust this plan get out of my way and she very kindly said do you expect me to hear you a wonderful simple technique she wrote it rather than raise it and it's amazing if you go on YouTube interesting that it's gone when she did that listen for a little while I said this is no way to make decisions but it has a totally different feel now Keith Olderman talked about the priorities of the next day on the news and said there was Senator in the Castle who used gold fish bowl demands but the truth is she was actually using a technique and that was rather than having people shout out and ask you questions to her she had them put their questions in a gold fish bowl so they were anonymous but people could ask all kinds of questions and then she pulled them out and she tried to answer the questions and to give people some information this is a technique that many of us use and for those who have taken civil procedure for many years Gerald Stern the author of the Buffalo Creek Disaster used to come to my classes first in LA, then in Washington and the students wanted to I said the students are going to ask you questions and he used to say no I want the students to put the questions in a bowl and I'll pick them out because I want them to ask you anything so some of my students have heard this story one of the questions was why didn't you use a class action because nobody wanted to confront me with it but the truth is when I went to Harvard Law School they didn't teach class actions I knew nothing about it so I just didn't use it and he said thank you for asking that question because most people would be afraid to ask me such a stupid question but it's a really important question you need to know know that whatever you're learning here in law school is affecting all the decisions related by May that we learn from all this theory and that was a very short version of the theory that some of you have acted to take my through resolution courses process matters a lot the decision rules we use the voting procedures we use and the size of groups every time a group gets larger the processes and the decision rules and what happens should change and can I use the same rules for 10, for 20, for 30, for 50 I've been on faculties this is the smallest one I've been on I've been on faculties as big as 110 different rules University of Chicago for many years used a unanimity role in faculty hiring what did that produce lots of wine economics people because they're replicating themselves Columbia University for many years two thirds though UCLA where I've taught for many years and joint town majority vote but if the vote was too close the dean would beg to gavel or do something else and say when the margins are that close someone should not join our group there's enough people here who don't want that that rule is now called substantial opposition and it is a technique we use in large group decision making let's try to arrive at a decision that as many people are happy with as possible and if some people are not happy let's bring them in and find out what they want to make them happy it's better than compromise and it's also iterative it's not a decision at one time so these are just some of the things that are field has contributed now I want to just say one quick thing here I am really getting to the end this is already what I've just told you which is that to make good decisions in different sizes of groups you need people like me people that are experts in the group process in dispute resolution and knowing what processes will produce what outcomes to talk about expert facilitation and deliberative democracy is a little bit of an option so that too is one of the theoretical questions that people like me who worry about theory and practice will worry about how can we talk about the need for expertness and expertise in environments where what we are trying to do is facilitate, as Habermas said the discussions of the active process people will decide about things that affect them so there's attention and that's nice because I still have a few years left in my spell over here and I'd like to have some questions to work on that's one of them but the point is that any good decision making process whether it's big public policy like healthcare or faculty voting procedures or what's going to happen to the family tonight with your kids your principles reasons, bargaining, utility trading preferences, negotiation and emotions, values and effective ordering they're all there, they're in the room so we need to figure out how to put them together in the most effective way I still hope that we can though my good friend and former colleague Debra Tanon argued in her book The Art and the Culture that we are now in a world of political polarization red and blue, plaintiffs and defendants education, lawyering politics, you name it our culture has become a yes and no culture I hope we'll get to talk a little bit about what we can do about it so finally, the last slide everybody I have to end with one of my greatest heroes Eleanor Roosevelt so unlike our litigious society in the United States where we used to fade some litigation to resolve things last year when I had the privilege to be there for the opening of the United Kingdom Supreme Court invited by my friend and I saw the Supreme Court in the UK has three courtrooms, not one because they don't sit the way we do everybody all the judges all at once it's a much, much lower key the UK Supreme Court's new very new institution it's not used to be a massive ward it's finally got a building, the building's not very old either the building was built in 1900s right across from Parliament it's a beautiful building, it's been completely redone and there are several courtrooms and unless Eleanor Roosevelt's words justice cannot be for one side alone unless people vote imagine that the highest court in the nation recognizes that cases are not about women and yes and no and justice going only to one side but justice going to both sides and my little bit of the answer to Eleanor is to say in the modern world there are almost no cases that are on the two sides all of our disputes and conflicts involve many people and in my world there'll be good process and justice for many not just one thank you very much I'm happy to take a few questions that people want to even about really little health care big health care problems there's Alex yes, why not I've already spoken before I was hoping you might speak a little bit more about not consensus but capacity building and the role it plays in the consensus building process more generally obviously it's a loaded question so hopefully we're going to teach a course here yeah so what element of all of this that I just said is as I said it's a great question because it helps me deal a little bit with that dilemma of process expertise part of consensus building processes and its analysis here land use, property, environmental the idea is when you do have large groups of people and you bring in the expert in process decision that you are quote building capacity so the expert may be in the front of the room for a little while and we'll talk about the difference in ground rules and the difference in voting rules and the different outcomes they produce but the idea is that there'll be a transfer of process expertise and so you are building capacity and the people whose decisions it is to learn how to do things better and one concrete example I'll give you that capacity building is in these larger public policy but it actually comes from a practice of mediation so if there are any mediators in the room there's a very big debate in our mediation professional circles about mediators who caucus and mediators who don't caucus most core mediators get the parties to just tell them their story and then they separate the parties not me, I was very lucky to have trained with and then worked for many years I worked in Marin County Gary Freeman who taught me never to caucus and I do now a little bit but not much for the very reason that Alex suggested when the mediator does shuttles diplomacy when Henry Kissinger runs back and forth when my good friend Ken Feinberg runs back and forth between the parties and doesn't keep them in the room what's happening? The mediator, the process expertise is holding all the power the idea of really good mediation which is what the mediator is doing is capacity building getting the two parties to negotiate their own solutions and if they need a little help we have techniques for helping but the idea is, and I'm a teacher so I want people in the room to learn how to do it themselves so that the next time they get into a dispute they can do it better themselves and in the organizational land use context the idea is that you're building capacity now having said that I do want to give one example of my little blue political place and that is, you would know this and so does my husband sitting here in places when organizations like Walmart come into a community and we get those nimbies not in my backyard there are now people that do capacity building to train the community to use a linsk or whatever else to prevent Walmart but in another part of my work that I didn't talk about today Walmart's learning to build capacity too and so Walmart which is a repeat player in this world in my window has done openings of stores all over the country and they learn every time a new technique is done by a local community for the local community they're a one-shot player but Walmart is a repeat player so capacity building which sounds like a good pro-deliberative democracy thing and it is has also, like the disruptors of the health care meetings been co-opted and capacity can be built on all sides and this this is terrific you talked a lot about the role of individuals and expertise and in structuring policies that work well in my own research on lawyers involved in the political right and the politics of the political right I've been intrigued by the role that organizations a few organizations play in bringing constituencies together that don't see eye to eye but I've always been amazed that there aren't more organizations that play that role across the political spectrum it seems to me that we listen we have people who are red and blue we have organizations that are red and blue and we're very polarized in our organizational life and so I must have you should we, could we develop more organizations that try to do at the organizational level what you're talking about being so yes we should he'll tell you it's impossible and I will tell you that too that I know about this first one you all know about I think after the gingrich revolution and also highly polarized time a group of people not me who did this work went off to have a harmony retreat and they did employ some of the people that were on my slides who are professionals of this stuff could they develop a congressional caucus whose purpose was to do bipartisan work so they had this wonderful meeting they used a retreat and they went away and it was all very nice and then I came back to Washington so I agree with you yes there should be and there had been efforts that was one that failed there was one that succeeded in the Bush administration early years of Bush too search for common ground which is one of the organizations on my chart here which works outside of the United States they worked in South Africa in Israel and Palestine in a number of the countries in Africa with civil war they're really all other places so they decided to have a little domestic office to do precisely what you asked and they actually with the Bush administration support got a coalition of religious organizations to develop some places to meet on particular issues so that's a little more public conversations we're not going to talk about banning or not banning abortions we're going to talk about developing services for adoptions for people who do want to advocate we're going to talk about health care services for pregnant women and so they would look for little issues that could be both fractionated and there were issues that people could work on together and so search for common ground really did try to do that and there are organizations in Washington doing it and as I keep pointing to my views over here so he I agree with you Ed but he would say in this kind of climate you can't help putting in a plug for our students who are trying to develop an additional organization is it an independent moderate something we have nobody here spokesperson for it I mean between the Federalist Society and the American Constitution I think it's just fine good luck guys yes great question so they're actually putting in some of the indigenous groups extremely low I guess as you said whose countries are they those countries those borders those weren't made by the people so they're actually using to say these borders that were created by some colonial powers and other process we're going to work across what we regard as the appropriate boundaries our own boundaries and that's worked a lot now there's a lot of north-south stuff going on there too because there are a ton of consultants you know from up north they organize that but that's become a very powerful voice for example some UN organizations land issues so it is a really a lovely example of going horizontally across a bunch of issues to agree to work in mass groups of people on the simulation on my chart there but in my third column there of using emotions and passions together with leaderless natural groups in ad hoc ways so that would be the Seattle demonstrations spontaneous movement that was at the time not so organized and the question is when you can take a single issue land or form whatever it is do you want to stay one shot issue ad hoc group or can you use it to build an organization and just to pick up on answer questions you can have an organization that's issue oriented and goes across horizontally or you can have an organization that's process oriented and the whole purpose of the organization is to facilitate cross-political conversation and I think that's the future actually is my international analysis students know instead of only studying treaties and formal laws to me the international action is in the NGOs and the voice that they're demanding and WTO and the Nixon and the UN and a whole bunch of places so what you're asking about that's the future international analysis students know I said we did a little project on studying NGOs in the world and I said now I want you to think about the NGOs you're going for so Ann's just told us about one that's forming here that was a great question so work is very rich in terms of topics and aspects but I was wondering as I was listening about some of the key terms and how they relate and what they mean actually what is consensus it's not a term I personally need so much I began to think so what is consensus there's also a key term conflict resolution and then at the very end you mentioned justice I'm wondering if you would like to riff a little bit on the relation between those three and maybe some other aspects there's also agreement so there's a lot of there I'll riff very quickly food awaits or some liquid so very quickly consensus actually is a hermival in this field so in the field capacity building, consensus building consensus building means it began in a consensus building and with a hope that decision would be effective and you keep working on the outcome until everybody can put it in that was the attempt of Kyoto that's been the attempt in a lot of the smaller community things which were described in the consensus building handbook but those of us that were doing it Larry Susskind in particular realized that in many situations it's impossible so consensus is not everybody but as many people as you possibly can get to agree to an outcome and if there is some substantial group that doesn't want it you don't do it you look for ways to make it better so it has a very precise meaning in this field as opposed to where we throw it around consensus means I think most lay people think consensus means most, plurality or a lot of people but certainly not it was intended really to be close to the end conflict resolution very complicated so I'll just say quickly here I use conflict resolution because that's the way the field is defined myself I call it conflict generally to anticipate I think some of your questions are important I think it's not just resolution I'm not someone who believes all conflict should be resolved as someone who is a anti-war demonstrator and a feminist activist a civil rights lawyer and all of that stuff conflict is productive it makes change happen so I am a person who is engaged in a field of conflict handling and I often prefer that so in my own professional circles I've come to stop doing that because it does seem to over-promise that all conflicts can be resolved justice now I know you philosophers teach about that but a riff on it in a very good way justice is just us and that relates back to the consensus justice is what we whatever we is, whether it's the people in a whole country which I think would be very hard right now for this country to agree on what it is but the way they come together for me is a conflict resolution professional it is for some agreement that the just us in the room, whatever the room is the room is this room, the room is the whole country to treat each other with respect for quality and care