Thoughts after Attending CIArb Mediation Symposium; Mediation and Politics
With thanks to Paul Randolph and Bill Marsh
Flight or fight? I have to confess on many occasions since that desperate morning of 24th June, I have frequently considered flight. As a life long European with a French grandmother, maybe just maybe, there is someway I could leave this mess, gain French citizenship and thereby retain my European citizenship.
Then, on the alternative, some loyalty towards the European cause and all that we have constructed over the last decades pushes me towards fight. Yet why this binary choice? Like ‘leave’ or ‘remain’ is there not, was there not, some reasonable halfway house? Even Cameron’s much ridiculed pre-referendum negotiation could look appealing now.
The problem with simplistic questions is, as we have found, that they promote simplistic answers that are clearly not deliverable. Our Prime Minister is forced to use empty sound bites like ‘Brexit means Brexit’ or now the idea of a ‘Great Repeal Act’. As an EU lawyer and legislator, I cannot even bring myself to read much of what nonsense this entails, yet in writing this I am guilty of the same crime; ‘nonsense’ I have written. Each side rubbishes the other. It is like the George Carlin quote: ‘Have you ever noticed that anybody driving slower than you is an idiot and anyone going faster than you is a maniac?’.
I have made a studious effort throughout the campaign to try to stay engaged and really listen (and I mean really listen!) to both sides. It is hard because our social media choices allow us to ‘unfriend’ and ‘unfollow’ those whose views we do not like or do not want to trouble reading. This possibility, whilst liberating, is surely, in some respects, not helpful. It makes us even more tribal than we might be if we actually had to sit down and chat with one another. It makes it more difficult for us to have a cohesive national or communal conversation.
The further knock-on result of this increasingly simplistic tribalism is what it does to our political class and leaders. We are inadvertently forcing them to take the same binary positions but in even more strident terms than we ourselves adopt as they vie for media and other attention. As a result sensible exchange becomes almost impossible. The whole dialogue deteriorates to the confrontational. As a ‘remainer’ I am continually being told ‘to get over it’. Dare I say that is not helpful. We can only get over this or through the next years if we understand the interests and regrets at play on both sides. To do this we really have to engage with one another.
My love of European politics grew out of the fact that I always saw it as less confrontational and more dialogue based than Westminster style politics. Then, of course, Nigel Farage turned up in Brussels, but evidently he and many of his colleagues never engaged themselves in the painstaking detail of the normal legislative work of the European Parliament. In this sense they never experienced what could be achieved by building coalitions and making compromises to produce real results, particularly in terms of laws beneficial to our electorates. Of course, they will rightly retort that shouting from the sidelines and objecting to the whole construct has won them the main argument at the end of the day. I just have to wonder at what price.
The thing is I can remember being able to have constructive conversations, on various issues, with colleagues from all groups; yes all groups. It is perhaps only when we got into the public glare that there is felt a need to revert to type. To revert to the tribe and to justify any strange compromise. So how do we help our politicians and ourselves out of the current impasse? How do we get talking? It has to be done in an open-ended way. A leaver will not want to countenance a conversation that is angled towards remain and vice versa. We have surely, as in any negotiation, indeed in a mediation context, got to be prepared to listen to why others take the view they take and in turn they have to be prepared to explain why they take that view. Then there maybe the possibility to a move towards a solution.
I was struck by a sentence from Canadian Prime Minister Justin Trudeau in his address to the UN. He said: ‘People want their problems solved, not exploited.’ That is surely the approach that would benefit us now. In other words, to look at what the problems really are that concern or upset us and see what the potential solutions are. To me the solutions might be many and various: yes a different relationship with the EU, a different EU, a different constitutional settlement in the UK. We have to take the current stand-off or crisis and turn it to opportunity to think differently.
However, before we can do this, we need to develop a process that will enable us to listen and seek solutions together. Whilst, as present, our tired tribal political structures are actually forcing one governing group to go in an extreme direction and to seek to do so by saying they will conduct EU-UK negotiations in secret rather than openly. Using the words of the Leave campaign, (yes I fall into the trap again), that does not give you or me any more control, but indeed less.
I am sorry to say it but in terms of process, I can only conclude that we need some form of inclusive convention-type arrangement that is able to involve wide sections of the public in consultation about the detail (so absent from the referendum debate and choice) of our future external and internal relationships within this currently rather dis-United Kingdom.