A Developmental Approach To Turning Points: “Irony” as an Ethics ...

WILLIAM GOLDMAN 9/27/2011For Educational Use Only

A DEVELOPMENTAL APPROACH TOTURNING POINTS:..., 11 Harv. Negot. L....

11 Harv. Negot. L. Rev. 147

Harvard Negotiation Law ReviewSpring 2006

Article

A DEVELOPMENTAL APPROACH TOTURNING POINTS: “IRONY” AS AN ETHICS FOR NEGOTIATION PRAGMATICS

Sara Cobbd1

Copyright (c) 2006 Harvard Negotiation Law Review; Sara Cobb

Talk to the experienced professionals. They speak of moments in a negotiation process where the unexpected or the surprising happened. At times they chalk it up to chance, and other times to the circumstances, and upon very rare occasions to their skill at navigating difficult moments and seeming impasses.1 These are moments in *148 a conflict when a group’s dynamic changes2--times when something extraordinary emerges that occupies a nuanced space between a heightened moment of conflict, and the next moment where that conflict has been diffused or exacerbated.3 But this “something”--the “unexpected”--exists independently of our ability to predict, control, or even describe it. Some call this phenomenon a turning point,4 which is used to refer to a shift in the action, or what Druckman calls a “departure.”5 Others call it a critical moment6 and refer to a shift in the meaning of events in a social process.7 Still others, as Putnam and Holmer, and Leary have noted, describe these critical moments as moments that generate changes in “persons, relationships, social processes and political institutions.”8 These shifts create uncertainty in the negotiation game,9 Leary notes, and can open up the possibility of learning insights about oneself, insights about the Other, insights about (improving) the relationship between Self and Other, and how interactions affect Self and Other.10 All of these perspectives share the assumption that negotiation is a non-linear process and that there are spaces or moments in the process where relationships, and *149 even the process itself, hangs in a precarious balance.11 Thus, “critical” refers to both the process outcomes and the relational trajectories, as well as the formation of identity and the struggle for legitimacy.12Turning points have been studied within a wide array of research methods, and each focus reflects a set of theoretical assumptions. Game theory and behavioral economics study turning points as alterations in the rules of the game.13 Similarly, communication theories, narrative analysis,14 conversational analysis of moves and turns,15 and frame analysis16 have yielded understanding of the impact of communication processes on negotiation outcomes. In ethnography,17 conversational analysis,18 content coding,19 and process tracing,20 researchers have worked to account for negotiation outcomes by describing features of the negotiation process. These methods attempt to document change in negotiation or develop causal formulas to describe the negotiation process, but all too often the complexity of both the larger context of the conflict and the process of negotiation escapes the centripetal force of these kinds of explanations--the factors are multiple and themselves undergo qualitative changes that defy a simple formula or categorization. While some call for increasing the variety and complexity of the variables under *150 analysis,21 critics of variable analytic methods have argued that “variables” or “factors” are ensnared in the web of inter-subjectivity, and there expire, unable to be discretely separated from an ever-expanding array of factors that are always themselves a product of the observer’s perception.22 From this perspective, the analysis of “turning points” calls for new, non-reductionist methods that can withstand the complexity of process analysis and generate descriptions of evolutionary processes in negotiations where these turning points emerge.The dimension along which negotiations evolve can be defined as the “relational dimension.” While it is the case that negotiations are embedded within larger conflict settings with other core dimensions (evolutions, for example, of the definition of the problem(s), the structure of the deal, and in the rules of the game), the development of the relationship certainly accompanies these evolutions. From this perspective, the relational dimension is a fractal for any, and perhaps all, of

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these other dimensions. Many researchers have documented both the evolution and the devolution of relationships in negotiation and conflict processes.23 We know that turning points or critical moments reflect and/or create changes in relationships, for better or for worse, but we are not sure how these turning points are generated, or how they themselves evolve.

•Are these turning points linked (patterned), such that the initiation of a given sequence generates momentum, making the next turning point more likely? If this is indeed the case, then both the positive and the negative evolution of relationships can be understood as positive and negative cascading effects. It would also imply that once cascades are in motion, they are difficult to reverse.•Are there patterns in the evolution/devolution of relationships within a negotiation process? This is implied very generally in the steps of the negotiation process as outlined by Fisher, *151 Ury, and Patton: “separate the people from the problem” is an overtly relational move that blocks cycles of blame;24 once that is done, the intense effort to understand the interest of the Other (i.e., “focus on interests, not position”25) as an engaged ethnographer is possible, and this, in turn, sets up the conditions for learning about Self, leading to the generation of creative options that enhance “mutual gain.” 26 The prescriptions offered in Getting to Yes can thus be seen as offering a map for generating turning points.27 These prescriptions, however, do not arise from a developed analytic framework that describes or explains the evolution or devolution of relationships because this model was not aimed at description but at prescription.•Are these relational changes--sudden, unexpected “departures”28-- seen as non-linear only because our relational theory cannot account for them? Are they in fact linear, containing a still hidden causality/probability? Given that our statistical models all too often lack the predictive power to forecast “probability,” what theoretical/analytic processes in the discourse could be harnessed to account for what is currently perceived as non-linear change?This Article offers a theoretical model, which might allow practitioners to identify, anticipate, or even generate a turning point, using it as an indicator of the stage of the relational or narrative development. In Part I, I will review the literature on relational evolution with an eye to those perspectives that are best equipped, theoretically, to address turning points in the evolution of relationships. The work of the Mental Research Institute is offered as a framework for understanding conflict dynamics as “ironic,” setting the stage for understanding non-linear transformations (changes in the quality of the relationship). In Part II, I will offer a definition of turning points based on positioning theory, building on the notion of conflict as *152 ironic.29 I will present a model for both defining and tracking a sequence of turning points in conflict narratives using the notion of “positioning.” This concept is useful for understanding the intractability of conflict narratives and suggests how these narratives could be destabilized, opening the way toward positive relational development. Using the concept of the “better-formed” story,30 I will offer criteria for differentiating conflict narratives from those that could contribute to positive relational development.This Article goes beyond merely presenting a theory of the sequence of turning points in narrative dynamics. Thus, in Part III, I will offer a strategy for actually generating these turning points. Building on a description of conflicts as “ironic processes” (that is, conflicts as interactional cycles where the very efforts that persons make to solve the problem and reduce the conflict actually anchor and perpetuate the conflict), I explore the role of irony in the generation of turning points that contribute to the creation of positive relational development. Building on Clift’s notion of irony as a frame that produces a “shift in footing,”31 I will (a) build a conceptual frame for describing the nature of the turning points that are needed to generate the positive evolution of narrative toward new positions-in-discourse for all parties, and (b) provide some suggestions as to how to enact turning points using irony. The argument here is that because conflict is inherently ironic and because negotiation all too often takes place within an already problematic relationship, irony itself can be useful in destabilizing conflict narratives, creating the narrative context within which content can be negotiated--“containing” the conflict. The spiral model of turning points offers a description of different kinds of turning points, and posits a sequence for their positive development.32 Irony is described as a core feature of these turning points, fitting the definition of conflict as an ironic process. Thus, *153 irony is both a theoretical condition of conflict, as well as the framework for designing interventions.In Part IV, I will suggest that this ironic practice, pertinent to the generation of turning points in positive relational development, is a form of ethical practice in negotiation. Defining ethical practice as a function of legitimacy in discourse, the sequence of turning points I propose generates narratives that provide for the positive positions for all parties. Additionally, these turning points are ethical in that they construct a narrative in which they internalize, rather than externalize, responsibility. Thus, the Article intends to describe a framework for understanding relational development as a function of turning points, which themselves reflect the ironic nature of conflict, as well as ironic transformations in conflict




narratives. I offer this model as a way of understanding and generating turning points, arguing that this is one way to constitute an ethics of practice.

I. Understanding Turning Points and Their Effect on Relational Development Within the Negotiation ProcessRelational development has been described across a variety of disciplines and practical domains, allowing us to identify and define relational stages within negotiation processes. Yet a survey of these efforts reveals that they have not yielded normative descriptions of the sequence of turning points in the process of relational development despite considerable work on identifying relational stages. Researchers have been able to conceptualize relationships in complex ways. This Part will stress the need for better methods to direct and assess the dynamics of change in relationships as they are happening, in the process of negotiating the relationships themselves.A. Relational Development in Negotiation ResearchRelational shifts are more than empirical surface changes in words and behaviors; they are alterations that shift the ontological conceptions of both Self and Other and the relationship between them. A review of the literature on relational development within negotiation research reveals that while relational development is a *154 core issue, it has not been conceptualized as a staged process sequenced by either process or structural features. While there is research that tracks the evolution of relationships--that relational shifts occur33--there is little research that distinguishes variation or sequence in the nature of such shifts. Kolb and Williams have, for instance, created a typology of “moves and turns” in negotiation processes, and they address their impact on the relationships within the negotiation process.34 However, these moves and turns are not, in and of themselves, defined as relational shifts, despite the fact that they impact relationships; instead, their focus was on the strategy of managing negotiation processes, especially for women. While their typology is not itself a sequence, Kolb and Williams are careful to track changes in the dynamics of negotiators’ responses to moves, they are attentive to the unfolding of the interaction via moves and turns.35 This is an important contribution even though they do not define moves-as-relational-shifts, patterned within a developmental sequence, as patterned alterations in conceptions of Self and Other.36 Thus, while there is much we do know about strategic moves within negotiation, there is much unexplored territory regarding the dynamics of evolution in relationships.B. Relational Development in Communication ResearchCommunication research also provides some models of relational development. Knapp, for example, posits the presence of a set of stages for the development and termination of relationships.37 Though Knapp posits the features of each stage, these stages are not described in terms of the process for the evolution from one stage to the next. 38 Similarly, Sluzki has modeled coexistence between ethnic *155 groups as a function of a set of stages in the evolution or development of relationships.39 But like other communication researchers, Sluzki has described characteristics of these stages without discussing the nature of the shifts that allow for movement between these stages. However, stage theories do enable us to begin to posit the components of an evolution. They call for attention to the dynamics of the evolution of the stages themselves.C. Relational Development Within Psychology and Psychiatric ResearchWithin more psychological approaches to conflict processes, there has been considerable attention to trust and trust-building as the process that reflects relational development.40 If “trust” is defined as an intra-psychic attribute of an individual, it cannot function as a measure/descriptor of relationships, much less of relational development.41 While the “trust-building” exercises and efforts within a negotiation process may indeed increase trust, there has been no attention to trust-building exercises, relative to relational development, or to descriptors of a sequence in the trust-building process, even though trust is widely understood as incremental (as opposed to non-linear) and impacted by situational factors.42 “Trust” is a social psychological approach to relational development assessment, and as *156 such, it is less equipped to account for the dynamic processes within discourse, in interaction.New research in relational psychoanalysis yields promising new understandings of the processes of transference and countertransference as the context for the negotiation of a relationship.43 Analysis from this perspective is an inter-subjective process in which the analyst/patient relationship becomes the context in which the healing of the patient’s pathology occurs. As Pizer has noted, this “negotiation” constructs the analyst as symmetrically responsible for changing and growing, and providing, in that way, the context for the evolution of the patient.44 Pizer has described the unfolding of the analysis as a process involving the “negotiation of paradox,”45 and while he details these paradoxes, he does not offer a description of relational development except to show, through the careful use of a patient’s case history, the emergence of the ability of patient and analyst to live with paradox. While this is an extremely provocative perspective on human development, the markers of the development are obscured by psychoanalytic theory that posits the inability to negotiate paradox as a function of pathology and limitations.




Pizer made a notable contribution to our understanding of relationships within the negotiation process by providing a way to frame development as the negotiation of paradox, but that negotiation, by *157 the nature of paradox itself--a conflict in criteria for classification--defies a sequential or developmental modeling. Even though Pizer does not offer a developmental sequence, his excellent case studies underscore the paradoxical complexity of his relationship with his client. However, Pizer’s own openness to multiple interpretations of his work with the client leaves me, as a reader, unsure as to how he would mark the developmental stages, if any, of the emerging capacity to navigate paradox. As a negotiator and a conflict resolution practitioner, I prefer to have markers or indicators, in a developmental sequence, that would signal the evolution or devolution of my relationship with my client. I need something other than self-reflection, or my own dreams, something other than the multiplicity itself or the satisfaction of grappling with paradox, as a guide. Therefore, while Pizer offers a glimpse into the complexity of inter-subjectivity and the negotiation of relationship, he opens up but does not reduce this complexity, and the result, ironically, is less, rather than more, clarity as to the means of generating relational evolution.46Hoffman, in the psychoanalytic tradition, does offer a theoretical frame for generating relational development that has embedded in it not just description, but instruction for practice.47 These insights have implications to the extent that negotiations include therapeutic moments, as do all social relationships. Hoffman argues for the creation of a “liminal space” for the transformation within the analytic relationship; this space allows patients to explore creatively who they can become--it is a space between the conscious and unconscious mind, a threshold space between being and becoming.48 It allows for the spontaneous emergence of new ways of being. While Hoffman does provide some instruction and recommendations on how to generate relational development, he also mystifies this instruction by advocating spontaneity, which works against any systematic understanding of the sequence between these moments.49 He does not hypothesize the creation of a set of turning points that are related to the emergence of this liminal space, nor turning points that may follow the creation of this space. Merely formulating or theorizing *158 the “inter-subjective”50 does not imply that there exists a set of turning points that track or map change (negative or positive) in relationships. Further, with the notion that psychoanalysis is a deep restructuring of intra- and interpersonal processes,51 Hoffman presumes that transformation will be progressive, long-term, and, by implication, incremental as opposed to non-linear.In sharp contrast, the team at the Mental Research Institute52 created “brief therapy,” which is an approach to the transformation of relationships that aims to create non-linear change by interrupting cycles in which patients/clients apply solutions to problems that can intensify and worsen those problems. Referred to as “ironic processes,”53 this approach to therapy theorizes that solutions to problems lie in getting people to enact less of the solution, or its 180-degree opposite. What is “ironic” in this context is the often chronic way in which people’s “solutions” applied with the best of intentions to problems exacerbate those problems. The focus on “ironic processes” enabled clinicians to attribute positive intent to these problem-generating solutions as they focused on the interactional loops that were anchored by those “solutions.” This was an interpersonal/interactional, rather than intrapsychic, perspective, one that allowed these clinicians to escape the necessity of creating definitions of symptoms based on individual pathology. In turn, conceptualizing conflict as “ironic” increased their attention to the role of unintended consequences and patterns of social interaction and the realization that we, even as individuals, are still embedded in a social matrix with other individuals equally embedded in a social matrix.These communication specialists were not tracking the evolution of relationships explicitly, but rather were focused on interactional sequences; they were experts at generating turning points in problematic cycles. Since they were interested in the interruption of the *159 problem and the solution traps and not the quality of relationships, these interventions, which can be seen as turning points, are not tied to any theory on the evolution of relationships.54 However, as Rohrbaugh and Shoham have noted,55 the communication specialists did document the way that relationships deteriorate through the application of solutions that exacerbate problems. Interrupting problem/solution cycles leads to new interactional patterns that hold over time, so this approach provides some theory on relational devolution and strategies for intervention that generate long-term, second-order change in relationships.56In summary, there needs to be a shift in emphasis from descriptions of relational stages to descriptions of the process of evolution, from an emphasis on outcome to an emphasis on process. Description of relational development as a non-linear evolutionary process, not as a set of stages, would enrich our understanding of negotiation, as we would then be in a position to design, not just identify, changes in process. Pizer’s link between well-being and the ability to negotiate paradox highlights complexities of the inter-subjective spaces that I will elaborate in Part II, addressing the dynamics of positions in discourse. So while the research reviewed in this Part offers descriptions of changes in interaction, or changes in relational states, or even change processes themselves, there is much we need to learn about non-linear change processes, as well as the sequence of the turning points that accompany those processes. This is a new area of research in negotiation that has, to date, focused




on retrospective analysis of the turning points in negotiation.57 However, given the *160 high stakes of many negotiations, nationally and internationally, it would potentially be very useful to be able to not only identify turning points prospectively, but also to generate them. We need to be able to identify them, in situ, as the interaction unfolds. Thus the dynamics of relational evolution could be evaluated in the action, not in the outcomes of that action. In Part II that follows, I offer a definition of turning points, as well as a theoretical framework for positing them as a sequence.

II. A Model for Turning Points as Positions in Discourse: A Narrative Perspective on Relational EvolutionAs the above survey of the literature of relational development makes clear, models in psychology and sociology are commonly rooted in the assumptions of evolutionary trajectories, however implicit, that either move or deviate along a continuum. I argue that this linear approach does not sufficiently account for the ways in which turning points contribute to the evolution of relationships in the negotiation process. This Article offers a spiral model for the development of turning points. Drawing on Harré and van Langenhove’s concept of “positioning theory,”58 I conceptualize turning points in terms of Self/Other positions elaborated in discourse.59 Harré and van Langenhove’s theory of “positioning” provides a foundation for a new analysis of turning points in the interaction itself, rather than in relation to the outcomes of the interaction. Further, this analysis sets the stage for a set of prescriptions as to how to generate turning points.A. Conflict Narratives, Positions in Discourse, and the Relational Struggle for LegitimacyA conflict narrative is a story that contains specific features: first (and perhaps foremost to the parties involved), the narrative provides legitimacy for Self, while de-legitimizing the Other. Additionally, it is often the case that the character roles are simplified, both in number and in nature. It advances a plot line that has a linear causal structure with the initial conditions residing in the bad intentions, bad actions, or bad traits of the Other. It is often the case that the plot is simplified; at times it has no future, at times no past. Finally, *161 it provides an evaluative schema based on binary and polarized moral values, and it is often the case that the moral themes are deeply resonant with a cultural value system, which makes it seem natural to privilege their centrality.60Conflict narratives function rigidly to maintain, if not increase, polarization. Accordingly, turning points that generate positive change would need to destabilize the core features of a conflict narrative (character roles, plots, and moral themes). Ironically, the fact that the discussion of the relationship itself can easily activate conflict and reduce mutual inquiry, particularly in the context of protracted conflict, makes it more difficult to reach a negotiated and sustainable outcome, since such an outcome depends on the development of the relationship.Destabilization of a conflict narrative is not likely to be effected through confrontation or pleas. Further, efforts to “focus on interests, not positions”61 on top of a conflicted relationship can lead to outcomes that do not, fundamentally, alter the nature of the relationship, as is clearly the case in failed peace negotiations. As Rohrbaugh and Shoham note, conflicts are themselves very ironic in that persons apply solutions to problems that all too often reproduce and intensify the conflict. 62 The complexities of conflict narrative and the irony of conflict itself begin to account for how difficult it is, from within, to alter One’s own conflict narrative, much less the conflict narrative of the Other. The intractability of conflict narratives can be seen, in turn, as a function of the positioning process.Harré and van Langenhove define “positioning” as the process, in interaction, in discourse, by which persons come to occupy a moral location in that discourse.63 A “position” in discourse is a function, they argue, of the storyline that is under development in a conversation or social process.64 Positions are locations in moral *162 frameworks--they are not roles or scripts because they are fundamentally reciprocal and oppositional, particularly in conflict narratives where each person positions Self as victim and Other as victimizer. Positions confer rights, duties, and obligations on persons and, in the process, instantiate the moral frameworks and narrative structures that constitute these positions.Furthermore, positions confer or deny social legitimacy on persons and, given that access to resources (relational, financial, organizational, etc.) depends on legitimacy, the struggle over position is inevitable precisely because these positions are oppositional and reciprocal.65 All positive positions constitute the presence of their negative--the person constructed in a narrative as “kind” will be contrasted or would have been (in the history of that relationship or organization) contrasted with a person who was not.66 We only know what is positive through the shadow presence of the negative.67 And even though criteria for constituting a positive position varies with the context, there is certainly enough patterned regularity within and across cultures to be able to know, ahead of time, the criteria that could be mobilized in narrative for the construction of positive and negative positions. For example, “patriotic” is clearly a term that has been mobilized since September 11, and Others who are not “patriotic” are often constructed as “disloyal” to “our men and women in uniform.” This positional set (patriotic/disloyal) has been used so often that it contextualizes every conversation about, for example, the war in Iraq. In the aftermath of the attacks, disagreement with the Bush administration has been all too often framed as “callous” to the




sacrifices our troops make, or as being “soft on terrorism”--another version of a negative position.*163 In summary, the conflict narrative is the locus for the struggle over meaning, which is, in turn, the locus for the struggle over legitimacy--who is right, who is wrong, who is good, who is bad, and why.68 The criteria for legitimacy emerge in the social construction of positions in interaction, reflected in the conflict narrative.69 In the process of negotiation, the struggle for position is complicated by the story that contains the substantive issues that populate the definition of the problem--the negotiation over any resources is a negotiation for access to resources,70 which is a function of the legitimacy that is conferred on people via the positions they occupy in discourse.71 Further, legitimacy is the discursive condition on which the privilege of access to resources depends, so it is not the resources themselves, but the access to them that is at stake in the negotiation process.B. From Conflict Narrative to “Better-Formed” StoriesLuckily for those of us who have ever been de-legitimized, legitimacy is fluid--always incomplete, slightly unstable, partial--and *164 evolving. Because positions are unstable, even the best relationships, where positive positions are reciprocally and routinely constructed,72 can become problematic. And once this is so, it is very difficult for the relationship to evolve or develop in a positive direction, despite the inherent fluidity of positions. Once instantiated, these positions become the basis for the relationship, and characterize the present as well as the past and the future of that relationship.73 The tenacity of discursive positions is a function of their triadic interactional structure, including:(1) A “proposal”74 of the position set (for speaker and Other, as positions are always reciprocal) by a speaker, complete with the criteria for the evaluation of good and bad, and a narrative framework that provides the logic for a position;(2) The interactional elaboration (acceptance, rejection or modification) of that proposal, by Others whose positions are implicated; this elaboration is itself a proposal;75 and*165 (3) The elaboration (of Other’s elaboration) by the original speaker.Because elaborations of a given position, which can themselves be proposals, are chains of elaborated proposals, it is very difficult, if not impossible to locate the beginning of the chain, even if (or perhaps especially if) participants’ perspectives are used to identify the beginning of the chain.76 From this perspective, a position in discourse is not a static outcome of the conversation; it is itself, by nature, a negotiation of the narrative system that contains the criteria for constructing legitimacy itself.The narrative system is dynamically constructed through interaction, and its hegemonic power is a function of the coherence of the plot (the causal sequence of events that structure past, present, and future), character roles, and themes or core values that are used to evaluate those roles in the context of that plot. Changes to this narrative system, when elaborated by others, destabilize the hegemonic control of narrative and open it to new plot events, new causal logics, new themes, and new character roles.77 When negative positions are elaborated, they generate changes in the narrative that reduce the complexity of the plot and themes, as the de-legitimized make counter-accusations, denials, excuses, and/or justifications. Rather, *166 the process of “opening” the narrative involves the construction of positive positions for the Self and the Other, owning participation in the unfolding of the events--past, present, and future--and participating in the elaboration of a moral framework that “contains”78 the (discourse) positions of both parties. This, in turn, generates the conditions by which persons can, at the meta-level, take responsibility in the narrative for the conditions for the emergence of narrative itself. The result is a narrative that is collectively elaborated and generates interactional patterns that contribute to relational development. Narratives that display these conditions can be said to be “better-formed” and have the following characteristics:79(1) Roles that offer positive positions for all parties;(2) Plots that display circular logic, rather than linear “punctuation,” creating descriptions of interdependence between actors;(3) Plots that display circular logics and temporal complexity, with elaboration of past, presentn and futures; and(4) Moral frameworks that are complex, rather than dualistic and polarized.The “better-formed” story generates interactional patterns that are collaborative and constitutive of sustainable relationships. Thus, the “better-formed” story can provide another lens on sustainable agreements. Further, “mutual gain” can be understood as the construction and elaboration of a narrative that contains the features of a “better-formed” story. From this perspective, Pareto optimality80 can be re-defined using narrative and positioning theory: it is the narrative, collectively elaborated, which contains the features listed above that *167 generate resilient narratives, creating a positive spiral that itself tends to inoculate the interaction against relational devolution.81While “optimality” can be seen as a function of narrative features, this lens alone does not describe the pragmatics that generate the narrative features associated with a positive relational spiral. In other words, knowing the narrative features does not tell us how to generate them. This Article offers a theoretical model for a pragmatics of narrative changes as “turning




points” that contribute to the positive evolution of conflicted relationships.C. Turning Points as Narrative Transformation: Generating Positive Relational DevelopmentDrawing on the research on “better-formed” stories which provides the basis for a normative narrative model, 82 there are three dimensions of narrative that require transformation in the movement from conflicted to “better-formed” narrative:

(1) Plot (from linear to circular logic, as well as from temporal simplicity to complexity, i.e., past, present, and future);(2) Character roles (from de-legitimized Others to legitimized Others, as well as less than totally legitimate Selves/Speakers); and(3) Themes/values (from dualistic to complex value systems).Turning points,83 (TP) can be seen as elaborated proposals in discourse which contribute to these shifts (see Figure 1 below).

Figure 1

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLEKeyNote: Stage 1 is the initial condition; Turning Point 1 follows Stage 1. However, in all other stages, the turning points generate the stage, so they precede the stage.

Stage 1: High in legitimacy for Self, Low in Legitimacy for Other

Turning Point 1: Reducing Legitimacy for Self (speaker explores their ‘underbelly‘); involves a proposal made by speakers, elaborated by their Other(s), that constitutes the speakers themselves as less than perfect.

Turning Point 2: Increased legitimacy for Other (a proposal made by speakers, elaborated by their Other(s), that constitutes Other as less than totally de-legitimate (or slightly legitimate)

Stage 2: Moderate Legitimacy for Self and Other

Turning Point 3: Creation/elaboration of ironic (circular) plot (a proposal made by speakers, elaborated by their Other(s), that constitutes a circular logic in the plot)

Stage 3: Reconstruction of Shared History

Turning Point 4: Creation/elaboration of multiple possible scenarios (a proposal made by speakers, elaborated by their Other(s), that adds complexity to the temporal dimension of the plot (developing the present, past, or future)

Stage 4: Construction of a Shared Future

Turning Point 5: Reflection on shared/distinct values, from overlapping traditions (a proposal made by speakers, elaborated by their Other(s), that adds complexity to the value system in the narrative, reducing the polarization of values)

Stage 5: Construction of a Shared Value SystemA systemic approach to narrative would suggest that these five turning points are equivalent in their utility/function in the production of a “better-formed” story, in the sense that one could “start” with any of them. Positioning theory, however, would suggest that plot and themes serve the production of positive/negative valence of *169 roles (positions)84 as the discourse position, not as the content of the conflict; plot and themes are primary to social process.85 If the positions in discourse drive interaction, then we could posit that positions are altered prior to shifts in plot sequence or value systems (themes). Or, to put it another way, if we try to shift the plot and the themes without having made or simultaneously making some shift toward the legitimacy of the Other and/or toward our own de-legitimacy, proposals to make plots or themes more complex will not hold, despite the fact that these changes may “improve” the story. For example, in the case of the Middle East conflict, attempts to augment the story line to elaborate future scenarios, each building from a different metaphor of the past, would be less likely to “jell” than if those attempts were made after each side identified how their actions increased the violence of the Other’s actions--how each side has forced the Other toward more violence. While this does not produce positive positions, it does require each side to reduce the legitimacy of its own position. As we have seen, moving forward




with peace proposals all too often requires parties to paste solutions on top of de-legitimized positions--each side maintains a positive position for Self (victim) and a negative position for Other (victimizer). The result is all too often a “fragile peace” followed by renewed violence.86The implication here is that even though there are many ways to generate narrative transformation (shifts in plots, themes, and character roles), those changes that impact the legitimacy/de-legitimacy of character roles (reducing victim/victimizer) are most likely to create what Pearce and Cronen called “charmed loops,” or positive interactional cycles in which the relationship becomes the context for the *170 interpretations, which lead to actions that enhance the relationship.87 These loops/spirals have a momentum that, once started, have as much force as the cascading effects of accusation and blame cycles. Either way, the legitimacy or de-legitimacy of the speakers is primary to relational evolution and devolution.Therefore, there are many ways to generate changes in narrative components; the turning points that alter discursive positions enable subsequent changes in plots and moral themes to jell. The reverse is not the case--changes to plot or themes which do not simultaneously lead to changes in discursive positions do not generate cascading effects that lead to “charmed loops.” In this way a logic in the sequence of turning points can be posited (with the possibility that TP1, TP2 and TP3 being interchangeable, with TP4 and/or TP5 following). For example, it would be more likely for a new set of shared values to emerge from the negotiations of the Middle East conflict after the creation of a circular logic that displayed the tragic irony of each side’s role in the production of the ongoing, intractable, conflict that has brought them to the negotiation table. Discussions of shared values, in the absence a circular logic of the past that helps display interdependence, would likely break apart under the weight of linear stories where blame is externalized. Likewise, efforts to develop scenarios of the future, which build in temporal complexity, would likely also collapse under the weight of efforts to maintain Self/victim and Other/victimizer positions in discourse.88 This implies that turning points that contribute to (a) reducing the legitimacy of speakers, (b) increasing or enhancing the legitimacy of their Others, and (c) creating a circular narrative logic are core to the development of the elaboration of a shared value system and future-oriented scenarios.Further, I would suggest that relative to TP1, TP2, and TP3, it is TP1--the reduction of legitimacy for Self--that is crucial for reducing, in subsequent turns, the de-legitimacy of their Others. Certainly the opposite is not the case; it would be unwise and impractical to make proposals that would reduce the legitimacy of the Other without first reducing one’s own legitimacy.*171 Finally, the creation of a narrative that displays a circular logic could be elaborated, in principle, without shifts in the legitimacy of either party or their Others, although it is unlikely from a practical viewpoint. Parties want to externalize responsibility, which in turn, help them maintain their position as “victim.”89 As circular logic reduces the externalization of responsibility, it is unlikely that circular logic could be elaborated unless and until the legitimacy of the speakers is decreased and the legitimacy of their Others increased. Based on this logic, as opposed to empirical evidence, it is possible to prescribe a sequence that could be more likely to generate positive cascading effects, leading to the creation of a better-formed story. This proposed sequence of turning points is as follows:(1) TP1: Turning points that reduce the legitimacy of speaker’s construction of Self;(2) TP2: Turning points that increase the legitimacy of the speaker’s construction of the Other; and(3) TP3: Turning points that create a circular logic displaying the interdependence of the actor’s actions.While it is certainly plausible that the creation of shared values, and the construction of future scenarios, built on the present from the past, could effect changes in discourse positions, I am suggesting that unless the positions are addressed first, they will often disrupt the possibility of future orientation, or values exploration.In summary, I have defined turning points as proposals offered by the speaker that generate shifts in narratives, leading to relational development (or to its devolution). I have also suggested that this development is a dynamic process rather than a set of discrete sequenced stages. Further, I have argued that the movement from a conflict narrative to a “better-formed” story implies not only a set of turning points, but also a logic for their ordering in terms of their import for relational development. But up to this point in this Article, I have not described how to generate these turning points. In the Parts that follow, I shall offer a framework for modeling the creation of these turning points from within the interaction, attending specifically to those turning points that are generative of shifts in discursive positions.

*172 III. Re-positioning Self and Other as “Shift of Footing” in Discourse: The Role of Irony in Relational Development

Technically, there are many possible ways to generate turning points that alter positions in discourse. Some methods, such as “appreciative inquiry” rely on the formulation of questions that function to connote Others positively.90 Other methods involve “reframing,” which has been widely acknowledged as a method of altering interpretations and opening parties to new




ways of understanding the conflict/problem.91 However, “reframing” is itself a broad category of technologies and all too often provides no more than an explanation for change, rather than a prescription about how to change frames in ways that are generative. Some of these technologies involve paradoxical interventions,92 some advocate “shingled” frames,93 some require the restructuring of interaction through imposition of ritual,94 and some involve changes in key myths or scenarios.95 This partial list demonstrates the complexity that lurks within the concept of “reframing.” This complexity all too often draws our analytic attention to the “state change” itself (from one meaning to another) without necessarily providing a description of how that change actually occurs.We know far more about how positions cannot be altered in conflict processes. Direct confrontation, challenge, negation, accusation, excuses, etc., are all efforts on the part of speakers to alter the interpretative field in which the negotiation and the conflict are taking place. We know from experience and research on “accounts”96 that all too often they backfire, increasing animosity and even the likelihood of violence. For new positions to be elaborated, not only must *173 they be “shingled”97 to existing positions, i.e., overlapped onto existing positions, like shingles on a roof, so as not to appear out of the blue, but also they must be offered in a manner that invites Others to elaborate them. From this perspective, re-positioning is not only a function of new frames (plots, role, and themes), but also a function of delivery and elaboration of the “proposals” 98 speakers make in the process of negotiating a resolution to a conflict. In other words, for a proposal to work as a turning point and actually shift positions in discourse, such that the relationship can develop, the proposal must itself be framed in a way that enhances the possibility of its adoption.A. Framing Proposals for Elaboration: Irony as Rhetorical StrategyIn Clift’s discussion of irony as a rhetorical device,99 she provides a description of irony as a practice that favors the development or framing of proposals that have high potential for elaboration. She notes that irony, as performance, involves the creation of a frame by speakers, which places the speaker both inside and outside the frame through the way that speakers invoke and simultaneously disqualify their own perspective. Proposals made in this manner are at once advocated by the speaker and indirectly contradicted. The consequence is that ironic performance sets up a resonance between possible worlds, opening a space for play. Consider the following example:In negotiating for more space for my academic unit (ICAR), I had not been able to get a straight answer from a university *174 official regarding exactly how much space we would be allotted in a new building. Without this information, I was unable to evaluate the offer to move ICAR into that space. After I asked several times for specifics, the administrator said that there were too many contingencies to be able to provide specifics. I finally confessed to him that I was too rigid a person to deal well with contingencies (while he, on the other hand was more “evolved” and “flexible”). After much hilarity about my rigidity, we sorted the contingencies into “small c” contingencies and “large C” contingencies. He then went on to “help me with my rigidity” by giving me a baseline figure of square feet that I could count on. From that point on, we have maintained the “joke” about my rigidity--last week he introduced me to the contractor, calling me the Director of Rigid (I am the Director of ICAR). There were lots of joking about “rigid clients,” and I promised the contractor I would go to therapy. When I see the contractor now, he asks me how the therapy is going, and I tell him “terribly.” I then proceed to let him know about all the problems I have noticed in the construction, which, were the therapy to take hold, I might not see. He threatens to find me a new therapist, but then addresses the construction problems. I now have a relationship with this administrator and the contractor--a relationship that works when we play with the problems that arise.100In this vignette, there was a conflict materializing that would have, could have, pitted me, as an academic administrator, against one of the staff inside of Plant Management Division of the university. Within a polarized relationship, that contractor and Division could have stalled our construction project interminably. I could have complained to the Provost, perhaps to no avail, and perhaps leading to increased anger on the part of the contractors. Anyone who has worked with contractors before can see the path that would unfold, and anyone who is a contractor reading this Article is also familiar with the deterioration of a relationship with clients.*175 While some may argue that this vignette is not necessarily ironic, but rather demonstrates the use of humor101 or flattery, I would argue that the discursive structure of the episode above is indeed an example of ironic practice, in that the actors, the characters, are both inside and outside--they are the framers, and they are the ones doing the framing of themselves, explicitly so. This ironic performance, maintained over subsequent interactions, is complex on multiple levels, but to simplify, it is an example of ironic performance in the way the speaker de-legitimized Self and legitimized Other. But it is different from instances where I really de-legitimize Self (perhaps detailing my failings to family and friends in a way that is filled with self recriminations and requests for support). My positioning of Self is presented as play, which contradicts the move precisely as it is made; truly rigid people cannot bear framing themselves as rigid, while flexible people can frame




themselves as rigid. So the de-legitimized position disqualifies itself, and, like a double negative, converts to positive. Likewise, the speaker’s construction of the Other as positive shimmers on the horizon of my construction of him as “recalcitrant”102 (stubborn). There is an intentional play in my construction of Other as “flexible” in a context where he has refused to cooperate, and his laugh recognized that “play.”103*176 Further, as Clift notes, the performance itself locates me, as speaker, both within the frame (rigid) and outside it (being the person who is framing myself).104 Being inside and outside of the frame at the same time constructs a position of “detachment” for the speaker, as irony is often used to make negative judgments that otherwise are too disqualifying or impossible to propose without destroying the relationship and setting a negative escalation in motion: “[S]ince irony makes a degree of detachment possible, it is unsurprising that it should be used to make negative evaluations; there is, after all, little need to disassociate oneself from positive judgment.”105 Far from being only an issue of play, ironic performance has an “edge.”106 It offers judgment and evaluation, often in places where the ironist can “enter potentially sensitive interactional territory.”107 The “edge” in irony has historically been fed by its association to power or authority, often mobilized to effect evaluations that could not otherwise be spoken.108 For this reason, irony often has negative connotations: “The negative connotations of irony (deception, disparagement, destabilization) which enter theoretical discourse with the word and its derivation from the Greek eiron . . . are never totally absent from the . . . discussions of irony’s normative politics.”109*177 Precisely because ironic performance is an evaluative practice, it creates both exclusion and affiliation. 110 Exclusion occurs through the creation and adoption of the dimensions for evaluation of legitimacy (“rigid versus flexible”). 111 However, affiliation happens as that framework and the positions it implies are adopted and elaborated by both parties. Further, since Others do not elaborate proposals where they are negatively positioned, affiliation can be seen, pragmatically, as the elaboration of a proposal of a positive position, by speaker, for Other.The affiliated response often appears, as Clift notes, through the play surrounding the extension of the ironic performance itself, over several turns.112 This was the case in the example above, as the university administrator, and then later the contractor, extended and perpetuated the joke. Laughter is clearly evidence of the irony--it is the sign that the “shift in footing” has been adopted.Irony can be performed in a variety of ways,113 both verbally and symbolically. For purposes of this Article, I will limit my discussion to the performance of irony through exaggeration (Clift calls this the “impossible descriptions” irony114), understatement, and reversals or inversions. Ironic performance through exaggeration is clearly present when a speaker exaggerates a trait/feature within a story (a *178 “disagreement” is referred to as a “pitch battle,” or “obedience” is referred to as “robotic compliance,” or failure to recall a date or face is referred to as “Alzheimer’s”). For facilitators, this kind of exaggeration creates an inside-outside footing in a negotiation--one has to have enough distance from the trait/feature to exaggerate it--and can be very helpful in that it pokes fun at the feature being exaggerated. However, when exaggeration of a negative position for Other is performed (a temperamental leader is framed as a “chest-pounding gorilla”), the result is not affiliation but exclusion that could lead to anger, humiliation, and the devolution of relationships, as Hutcheon has noted. 115 For exaggeration to build affiliation between the parties, it must not be harnessed to the point where there is a production of negative positioning in the discourse.Understatement is another mode of ironic performance. In the reverse of exaggeration, speakers minimize the feature/trait within the story, and again, this understatement can be harnessed to generate relational development or devolution. To frame oneself as “cranky” about the decline of stock valuation in conversation with one’s financial advisor is likely an understatement that signals a depth of anger not acknowledged; the speaker is, thus, both in the frame and outside the frame, creating the frame in which she and the advisor exist. This inside-outside quality creates a “safe” space for the exploration of the relationship. Because the advisor knows that the speaker actually is much more than “cranky,” and recognizes that the speaker has chosen a more playful (minimizing) term, the advisor is much more likely to accept responsibility for missed opportunities or mistakes made on his part. And from the speaker’s perspective, having the advisor take some (more) responsibility for those mistakes increases, paradoxically, the speaker’s confidence in that advisor. Again, ironic performance via understatement can effect a “shift of footing” that is generative of “charmed loops” and relational development.*179 The third mode of ironic performance is reversal or inversion.116 In these cases, speakers reverse the characterization of a person or event. For example, a “tyrannical” CEO of a family holding company becomes a “stressed out Uncle,” unable to satisfy the never-ending requests of his spoiled family members for more money.117 Alternatively, overworked and pressured, as my boss knows I am, I might describe myself to my boss as having “everything under control.”118 This frame contradicts itself, and simultaneously constructs me, as speaker, as both in the frame and making the frame, positioning me at a meta-level as positioning myself.




While this short description of the three modes of irony is not exhaustive, it does provide the basis for understanding how irony is performed. In the Part that follows, I explore how this performance can be linked theoretically and practically to the generation of turning points that contribute to relational development.B. Irony and the Production of Turning Points in Relational DevelopmentFrom traditional studies of irony as rhetorical practice119 to more modern and postmodern analyses of irony as dramatic performance,120 theorists have noted that irony is a method, in discourse and in conversation of indirection, of what Bakhtin calls “sideward glances” at double meaning.121 Irony generates multiple meanings and, in so doing, generates instability, partiality, and incompleteness. It confronts (indirectly) and destabilizes the hegemonic power of narrative and opens new positions in discourse.*180 From this perspective, ironic performance is certainly a core resource for the generation of turning points, or a “shift in footing” as Clift has called them.122 Rather than directly challenging a discursive position, ironic performance requires speakers to hold (and present, indirectly) the implied positive and the expressly negative positions they themselves hold in the discourse, as well as the positive and the implied negative position of the Other. This inside-outside formulation, shimmering in the interaction, pragmatically functions to create a space where neither party is perfect nor terrible. This duality reduces the entrenched polarization of (discursive) positions in conflict sequences and opens the (liminal) space of play and exploration.Returning to the map of turning points that I offered, as implied by the conditions for “better-formed” stories, ironic performance can be seen as the “shift in footing” that contributed to the narrative and relational development. Recall that I posited five turning points, each one core to the evolution of narrative dimensions central to a “better-formed” story. I defined these turning points as “proposals” that, when elaborated, generate shifts in positions via shifts in character roles, plots, and themes. I further argued that these turning points can be sequenced, and that it is possible to argue that the de-legitimacy of a speaker by his or herself should be elaborated first, in an effort to set off a cascading sequence that would lead to a “better-formed” story and a positive relational evolution. Ironic performance allows speakers to begin this sequence, reducing their own legitimacy through exaggeration, understatement, and reversal or inversion. The turning points are elaborated below, providing more detail to the “better-formed” story that results from ironic performance.Turning Point No. 1: Exploring the Underbelly. As speakers construct their legitimacy on the basis of a construct system in a given conflict or negotiation (which no doubt changes with the context), their legitimacy always carries with it an “underbelly”--the ironic presence of the “downside” of the dimension or trait on which they construct their legitimacy (which is usually not its linguistic opposite). For example, in a conflict where a boss is constructing Self as “organized,” the underbelly could be a tendency to be outcome-oriented, rather than people-oriented. So to the degree that any of us struggle to maintain our legitimacy on the basis of one side of a given construct (“organized”), we are working to avoid the appearance of its underbelly (not people-oriented). When that underbelly appears, it *181 all too often looks similar to the construct our Others are using to de-legitimize us (perhaps “uncaring” in this example).123 Exploration of that “underbelly” in front of the Other might involve disclosing the ways that the boss struggles to remember, in his drive for organization, that there are real people involved with real emotions--people that are likely better at “smelling the roses” than him.The proposal of the underbelly of the speaker’s own legitimacy by him or herself must not reduce altogether the legitimacy of the speaker--the positive dimension remains “organized” but is made more complicated by the fact that it may lead to “forgetting to smell the roses.”124 As I noted earlier, following Clift, ironic performance allows speakers to be in and outside the frame at the same time, signaling that they are themselves playing with the terms of their legitimacy, holding on to it and its underbelly at the same time.125In the case of the Middle East conflict, for example, the Israelis might note that, in an effort to protect their land and their state, they have operated from a position of “insecurity,” fearing all around them.126 Of course, the underbelly of that fear leads to a way of engaging the Other that in turn requires the Israelis themselves to be less likely to listen and more likely to respond with force, particularly in the shadow of the Holocaust. In fact, because the Holocaust could never have been predicted from the initial threat that growing anti-Semitism posed, Israelis are now obligated to presume extreme consequences for any reduction in their vigilance. Forced by this required vigilance to become victimizers themselves, forced to ignore and/or deny the consequences of the birth of Israel for the people living on the land that became Israel, they live in a state where fear rules their days and controls their politics. This is a complicated *182 ironic formulation, as it proposes that Israelis know they are victimizers and wish for some way to be different even though their fear, confirmed by history and daily violence, holds them in its grip. The speaker’s ownership of their fear, in place of a focus on the Other’s violence, becomes the basis for a new, less legitimate but not de-legitimate, position.




Turning Point No. 2: (I’m OK.) You’re Sort of OK. The second turning point involves moving to constitute the legitimacy of the Other through ironic performance. For example, should the Palestinian leadership elaborate this formulation, they would be able to move toward a discussion of the consequences of a politics of fear, acknowledging that they too are run by fear. If the Palestinians confirm that the Israelis are impossible to deal with because of their politics of fear, the Israelis could express sadness that the Palestinians are themselves unable to listen and respond, either to the Israelis or even to themselves, given the emerging chaos in their governance, or in the territories, for they too are in the grip of fear. This increases the legitimacy of the Palestinians without condoning the violence they enact, by reducing the attribution of negative intention. In this way, the Israelis signal sympathy for the Palestinians without reducing condemnation of the violence. This would be a particularly powerful move as it would also construct the Israelis as inside and outside, or able to be detached. This kind of space increases the safety of the space for subsequent conversation, as the speakers, in this case the Israelis, have demonstrated their ability and willingness to construct a dimension of legitimacy for the Palestinians. Now there is, of course, no guarantee that a positive spiral or charmed loop would emerge from either of these turning points. But clearly, efforts to reach negotiated outcomes to date have not yet altered the positions in discourse for either side, and, from this perspective, it is no accident that the violence continues and negotiated settlement seems impossible.Turning Point No. 3: What Goes Around Comes Around. Once parties have opened the possibility of the legitimacy of their Other, they are in a better position to reinvent history via the elaboration of an ironic narrative that displays the tragic interdependence of each side’s role in generating the actions of the other in a “more of the same” negative spiral. 127 Again, in the case of the Middle East conflict, this would involve the public elaboration of a story about how *183 Israelis and Palestinians fuel each other’s resolve for violence, and how that violence reduced the options for Israelis to respect the Palestinian historical perspective or their current needs. While this story may have been told in Oslo, it was not widespread, and today I never hear either side lament the ironic tragedy of its actions. Because this story constructs both parties as responsible for the violence, it is not likely that either side would elaborate this story without first having elaborated its own imperfection as well as the partial legitimacy of the Other. (Note that the dimensions of imperfection or legitimacy for each party are different; to put it differently, there are diverse ways to be imperfect, and a multitude of ways to be legitimate. This diversity is of course a function of the culture that anchors moral codes and value frameworks.)Turning Point No. 4: Building the “Long View.”128 Having reconstructed an ironic past, the next turning point builds toward a “better-formed” story and more resilient relationship. It involves the creation of a shared future, collaboratively built from a set of possible metaphors that all have implications for both the structure and the process of solutions to problems. Scenario-building is an example of ironic performance as it requires participants to hold multiple futures open, which in turn frames each party as taking responsibility for choosing the preferred futures. Again, the result is that each party constructs itself and the Other as inside and outside--as the creator of the metaphors for preferred futures as well as the inhabitant of those futures. Having reduced the polarization of victim/vicitimizer roles in turning points 1-3, this turning point is based on the logic of interdependence, shifting the footing from “reactor” to “actor.” This is a crucial point in the development of the narrative, as well as the development of the relationship because a) it provides the discursive structure for a shared future, and b) it frames each party as responsible for the creation of the discursive structure for that future (the meta-level).Turning Point No. 5: Remembering What We Always Have Known. In this turning point, parties offer and elaborate proposals that construct and anchor a more complex value system, building on the new ways they know Self and Other, the new (ironic) history, and the new (chosen) future. Proposals that offer reflections on existing *184 and dormant values that have emerged through the development of the “better-formed” story provide an ironic basis for a “shared” future (“we are in this together”) built on a remembered past. In this future, core values are re-discovered, having been buried under a blanket of hate and fear. The ironic performance here is the presence of the reversal/inversion--the story of how core values, which should have been guiding action, got lost but now are found. Exploration of this irony129 would, at some level, inoculate the relationship from returning to old conflictual patterns, as each party takes responsibility for maintaining those core values with the Other as witness. The incredible irony is that, were this to occur in the context of the Middle East conflict, the enemy would become the reflective partner for their Other, supporting it in its efforts to live up to its own values.Together, these five turning points contribute to the creation of a “better-formed” story and contribute to the positive evolution of a relationship, inoculating the relationship from a return to the negative positions each had for the other prior to this process. I have presented these turning points in a pragmatic sequence, not because there is a causal connection between stages, but because each turning point pushes the narrative system to a new equilibrium130--toward the creation of subsequent turning points, leading to a positive spiral. Furthermore, each of these turning points has been described as an ironic performance. While it is certainly the case that turning points, as the elaboration of new positions in discourse, can be




effected in a variety of ways, I have offered irony as a technique for understanding and designing these turning points, as a way to model the unfolding of relational development.The use of irony complicates any teleological explanation as it includes non-linear loops and spirals; relational readjustments defy linear sequencing. This is especially the case when relationships *185 turn from assessments of moral frameworks to evaluations of multiple moral frameworks in the midst of relational interaction. Developmental models, based in a single moral framework, in general are normative models with prescriptions and moral frameworks. They have, inherently, all the theoretical problems of any model that attempts, in this most postmodern era, universalism of any kind. Some developmental models reflect “normal” development, such as Piaget’s theory of cognitive development131 or Duck’s theory of relational dissolution.132 These “norming” models are built from careful observation and description. Other developmental models are prescriptive, such as the development of tragedy as outlined by Aristotle in his Poetics,133 or even Fisher, Ury, and Patton’s model of negotiation outlined in Getting to Yes.134 These models begin from a set of pragmatic, aesthetic, and/or moral assumptions about process and outcome and build recommendations from those assumptions. In any prescriptive theory, there are assumptions about the good, the better, and the best. In the case of Fisher, Ury, and Patton, these recommendations flow from a set of pragmatic criteria (in other words, those that work). Other models, such as Aristotle’s concept of tragic narrative, have an ethics or aesthetics at their core, not just as an offshoot of pragmatic considerations, but as a set of values used to evaluate action.135 The beautiful is good, and the good is pragmatic.The developmental model offered in this Article sets up a framework not only for effective practice, but also for ethical practice based on the assumption that there is a link between pragmatics and ethics. The positive evolution of relationship is not only practical, generating successful outcomes in negotiation, it is also an ethical practice, I shall argue, as it creates legitimacy for all parties involved. I offer a description of the ethics of ironic practice in negotiation not only to address those that may find ironic practice manipulative, but also to *186 establish some criteria for evaluating negotiation, other than pragmatics.

IV. The Ethics of Ironic Practice in Negotiation PragmaticsEthical perspectives on negotiation and conflict resolution arise from normative assumptions about the merit of participatory processes,136 the management of marginality,137 the reduction of violence,138 the need for coexistence,139 the importance of positive approaches,140 and the need for self-reflection.141 The values espoused across these frameworks are often implicitly or explicitly tied to pragmatics on the assumption that self-reflection, the reduction of marginality and violence, the promotion of coexistence, etc., are often both the goals of negotiation and the means for producing effective outcomes. “Participation” becomes both the ethical end as well as the pragmatic goal. All of these means and ends are materialized through, and are the outcome of, the development of the relationship between the parties in conflict. In some cases, the relationship is theorized to be enhanced via a structured problem-solving;142 in other cases, it is presumed to be enhanced through self-exploration and reflection,143 and in still other cases, through building new dimensions for collaboration.144 However, “collaboration,” as well as the disciplinary power of language itself,145 can mask a host of problems related *187 to asymmetries146 between parties. The positive evolution of relationships, indicated by the set of turning points, provides, in addition to a set of prescriptions for effective practice, a framework for assessing ethical practice as well. This framework builds on the “emancipatory” goals for negotiation advanced by scholars such as John Forester and Jürgen Habermas.147 In the Part that follows, I use positioning theory to advance a description of the processes related to legitimacy and de-legitimacy in discourse; in turn I show how these processes are “critical” to the management of relational evolution in the negotiation process. My aim in this Part is to link the ethics of negotiation to the art of ironic practice and to the aesthetics of narrative practice in fostering turning points that contribute to relational development.A. Critical Moments and Relational Development: Assessing Negotiation ProcessesIn a negotiation, not only are there non-linear processes,148 qualitative shifts, and turning points, but there are also moments where legitimacy of one or more of the parties is challenged or threatened. These are critical moments precisely because they can negatively impact the position of parties. A “critical moment”149 is a moment in *188 the discourse or narrative where a negative position is proposed and/or a positive position is challenged. This can occur when one party de-legitimizes the other via a proposed position, or when one party fails to elaborate a positive position that has been proposed. In both cases, the legitimacy of a party has been challenged via the absence of the positive or the presence of the negative position proposal. 150 In neither case do these proposals need to be elaborated for there to be, already constituted, a critical moment--simply formulating the negative, or failing to elaborate the positive, threatens the legitimacy of speakers.Critical moments, by themselves, shape interaction, and while they do indeed reflect relational information, they do not reflect or constitute relational development in and of themselves precisely because a critical moment, as I define it, is a




proposal and not equivalent to its adoption and elaboration over the course of the interaction. Thus, the analysis of critical moments in a negotiation process would yield understanding of at what point the de-legitimizing or legitimizing proposals were offered in the interaction, but this analysis would only yield a description of static moments (hence the word “moment”) and, while informative, would stop short of being able to account for the development of the relationships over the course of the interaction.A critical moment, therefore, is a crucial location in the interaction process--a place where Self’s narrative, and its moral framework, is positioned against the legitimacy of the Other’s counter-narrative. As mentioned previously, the critical moment is a proposal and need not be accepted by the de-legitimized Other. Legitimacy is conferred by speakers onto Others. Persons by themselves cannot create their own legitimacy simply by proposing positive positions for *189 Self. These must be elaborated by Others for that proposed legitimacy to materialize. In this way, parties in a conflict and/or a negotiation are dependent on each other to constitute legitimacy for Self.151 Challenges to legitimacy by Others lead to defensive moves by speakers, and the interactional cycle of accusation/denial/justification or excuse constitutes the negative spirals we associate to relational devolution, rather than relational evolution.152 Understanding the processes related to relational evolution and devolution would be critical to the creation of an ethics for negotiation practice.In negotiation literature, many have written on the process of relational evolution and devolution153 using the concept of “trust” as the indicator of relational development. While “trust” is a useful folk concept, recognized by parties and professionals alike, it is a term that refers to an intra-psychic process, and, as such, it is less suited to the analysis of relational processes.154 For this reason, “trust” as a *190 concept is problematic as either an indicator of relational development or as a normative outcome. While efforts to build trust in the negotiation process are laudable, to use it as an ethical goal is risky, given that the translation from discursive process (where relational development is empirically available) to intra-psychic process downloads a basic error in logical types: an intra-psychic process cannot be equated to a discursive process because those psychological processes cannot be “read” from discursive processes. For this reason, even though trust is a widely used folk concept, it is not a reliable indicator of ethical discursive processes.155Kolb and Williams, along with Forester, provide frameworks for the analysis of the negotiation via the analysis of discourse/conversations.156 Forester,157 drawing on Habermas, has made explicit connections between deliberative processes and emancipation processes in communication; based on critical theory, his recommendations for *191 practitioners flow directly from a set of values that provide a scaffold for moral action in negotiation and conflict resolution.158 Kolb and Williams, through their critical analysis of moves and turns, draw on research done on legitimacy in discourse159 and advance a conversational ethic that helps people attend to issues of marginalization and participation in discourse within negotiation processes.160 These authors enable practitioners to evaluate the negotiation process from a normative perspective, rather than relying on the assessment of outcomes (agreements and/or the satisfaction of the parties).Normative theories of conflict that do address properties or processes of discourse, such as Habermas’s Theory of Communicative Action, problematize the role of discourse in the social construction of community.161 Adopting Habermas’s goal of “emancipation,” Forester advocates a negotiation practice that reduces marginalization and increases participation. Even though Habermas and Forester do make important contributions to the ethics of deliberative practice by differentiating the communication that fosters emancipation from communication that does not, neither posits the measure of its validity in terms of the evolution of relationship or in terms of discriminating the quality of inter-subjectivity, i.e., relational knowledge. For Habermas, intersubjectivity is both the condition of and the product of communication.162 While philosophically this sets up the condition for attention to evolution rather than outcomes in social process, it still lacks the descriptive power that would help practitioners address the stages of relational development or the legitimacy of the parties. Habermas contributed greatly to the critical project by creating distinctions that differentiate types of discourses and by seeing evolution of meaning as a function of the (speech) conditions for discourse itself. However, the “double hermeneutic” is closed in a way *192 that, in my view, mystifies rather than clarifies: the infinite regression at the heart of the double hermeneutic (we create the conditions for speech, which create the conditions for speech, etc.) obscures the development of a normative model of how we should move past relativism while avoiding either particularism or universalism, or how we can, over time, generate speech communities which generate the conditions for community.163Habermas is correct to concentrate on the importance of the process of the negotiation of relationships, toward the production of consensus. However, having access to speech forums--the act of free speech--is not equivalent to freedom from domination. Participation alone does not result in ethical negotiation of moral frameworks, which are often multiple and competing. If we posit consensus as an indicator of participatory processes, or genuine participation (as opposed to colonized participation), how can we differentiate between the nature of the consensus reached and the quality of the participation?




Defining consensus as a process in discourse would enable practitioners to make this differentiation.If we posit “consensus” as the de facto evidence of participation--not as agreement but as “con” (with) and “sensus” (from “sentire”--“to feel with”)--it is possible to begin to craft the features of those speech communities and, working backwards, conceive of the transitions or turning points that would be necessary to move from conflict to consensus. “Consensus” at its root can be understood as the process of sensing or feeling together. As such, it is less about the content than it is about the sense of relationship, of the inter-subjective space. Consensus is a function of relational knowledge.As Taylor notes, consensus is much more complicated than a sense of togetherness, or belonging, or “common ground.”164 He notes that both consensus and dissensus require the creation of an “inter-subjective web of meaning.” 165 This web, itself, is a precondition of any agreement or contestation. “Consensus,” built on the foundation *193 of an inter-subjective web, requires the relational knowledge of the Other rather than mere knowledge of their world. This relational knowledge constitutes much more than a simple understanding of the perspective of the Other--it is being able to live in the position that we, as speakers, construct for the Other.166 Relational knowledge is, fundamentally, an aesthetics of inter-subjectivity that grows out of the nature of the stories we tell about the Self and the Other and the attendant positions in discourse for the Self and the Other.167If we try to build a foundation for an ethics of practice using “consensus” as “mutual recognition” or its cognitive correlate, “mutual understanding,” we risk reproducing, as Oliver has argued,168 the systems of exclusion (“us” and “them”) that lay the foundation, sooner or later, for oppression and violence. Critiquing Taylor for his reliance on “recognition” as the mechanism by which persons confer legitimacy on another--that is, how they recognize themselves in the Other--Oliver argues that this “exchange model” (giving recognition in exchange for similarity) maintains systems of exclusion (“us” and “them”).169 While the alternative that she offers is problematic (she hopes that “vigilance” against “us/them” will reduce its throttlehold on persons), it does little to recognize the structural conditions that perpetuate those categories.170 Her assumption is that, once embedded in these systems of exclusion, persons can reduce the influence of these systems through reflection and vigilance. Again, Oliver contributes to identifying the issues related to “recognition,” but the solution she offers (vigilance) perhaps falls short of addressing the issues she has raised.171 If we conceptualize consensus as a function *194 of relational knowledge, which is in turn a function of the “intersubjective web of meaning” as Taylor suggests, the development of consensus requires attention to the specific and local positions in discourse that we construct for the Self and the Other in given contexts.Living in, or occupying,172 the position that we construct for the Other in discourse is an extremely complicated process. Relational knowledge, manifested in consensus as “knowing with,” requires attention to and understanding of how persons are positioned in discourse--how they are legitimized or de-legitimized. The re-formulation of positions, accompanied by shifts in plot logic, as well as the increase of temporal and moral complexity, all contribute to create a narrative structure and process that support the positive evolution of relationships.B. Ironic Performance as an Ethics of PracticeIronic performance as a rhetorical strategy173 is well-suited to the negotiation and conflict resolution process that requires parties to work via indirection to reposition the Self and the Other, skirting their own disqualification or that of their Other. Ironic performance is an effective strategy for creating positive relational evolution. Yet I offer irony not only in relation to the efficacy of practice, but also relative to its unique contribution to an ethics of practice. As an ethics of practice, ironic performance is inclusive.174 It loosens the grip of rigid, deeply rooted moral formulas, allows (and expects) participation in formulating different narratives and interactions, and imagines new relationships built upon deeper reflection. Ironic performance informs an ethics of practice in the following ways:

(1) It provides a way to reduce the de-legitimacy of the Other, enhancing their capacity and willingness to participate;(2) It allows speakers to explore their own imperfections (underbelly), which allows speakers to occupy a detached space *195 where they can describe the Self-in-context, generating the possibility of a description of shared rather than externalized responsibility;(3) It allows parties to reconstruct a history in which both parties are both subjects and objects of the action, each responsible for the historical events;(4) It allows parties to “play” with multiple scenarios and to take responsibility for the one they choose; and(5) It allows parties to build a shared value system while functioning as a witness to the moral aspirations of their Other. In this way, both the Self and the Other engage in a form of reflective practice, contributing to the wisdom of the whole system.




As I have argued, all of this is dependent on the capacity for speakers to “hold” or contain the complexities of what it means to be a human: to be legitimate and imperfect, to have good intentions that lead to bad outcomes, and to be caught in cycles we did not choose and cannot change. This is the heart of the ironic performance, and this begins to suggest that ironic practice is not just a rhetorical strategy, but a meta-location in social process. It is one that allows for being inside and outside at the same time, a position of detachment, making it difficult, if not impossible, to construct Others as having bad intention. In fact, at the heart of ironic performance lies a commitment to the social construction of positive intentions for the Self and Others. And it is this ethic, made possible by the ironic performance, that ensures the on-going construction of positive positions by speakers for the Self and the Other. From this perspective, positive connotation (the attribution of positive intention) is both the outgrowth and the process of ironic performance.Following this line, the focus for negotiation and conflict resolution shifts from settlement to relational development; the negotiated outcome becomes a by-product of the transformation of the relationships and the social construction of a “better-formed” story. This is consistent with both deliberative democracy, with its focus on sustainable agreements and the creation of institutional and social processes for addressing problems as they arise, and with the focus on social justice, with its commitment to the reduction of (social and economic) marginality and the promotion of human rights. In both of these foci, there is an abiding recognition that power, corruption, and “spoilers” contribute to maintain conflicts and problematic relationships. However, in the context of ironic performance, it is possible to *196 construct participants as having positive intentions yet being caught in ironies they did not make and cannot control. Far from dissolving personal responsibility or excusing violence, corruption, or abuse, ironic performance provides a way to historicize violence such that its etiology can be witnessed.Currently, tribunals and courts that seek to establish responsibility for violence and help build a moral framework for evaluating action, such as the discourse of human rights, delineate the victims and the victimizers, paradoxically perpetuating the negative positions that reduce participation and increase marginality, secrecy, and corruption.175 I am arguing for ironic performance as an ethic for addressing “evil” (no matter its local social construction) in a way that provides understanding of its origins, increasing rather than reducing personal and societal responsibility. From this perspective, ironic performance in negotiation and conflict resolution has the potential to create the conditions for the reduction of violence over time at a global institutional level.This is much more complicated than the instantiation of standards for action, such as human rights or global norms, for it involves not the code or norms themselves but the process for constructing them over time. Some reading this Article will no doubt complain that this makes sense on paper but it is not practical as there really are bad people who want to do bad things to Others. Such readers will further explain to the naive expert that ignoring this “fact of life” increases the vulnerability of those (the good ones) who would seek to control the bad ones. As Pumla Gobodo-Madikizela showed via her analysis of interviews with perpetrators involved in the violence in South Africa (notably former president De Klerk), however, “evil” knows itself as such, given the time and space for reflection, and in that process becomes more a tragedy than a cause for “justice.”176 This does not imply that tragedy and justice do not occur in parallel--the tribunals and public forums for accounting for violence can also be spaces where the context and etiology of violence is constructed and revealed. This would not lessen the need for justice, or increase impunity; it would, however, humanize violence.The ethics at the core of ironic practice implies that negotiators, facilitators, and mediators work to alter positions in discourse, not *197 only because it is practical for the resolution of problems, not only because it functions as an inoculation against future violence, but also because it is a good thing to do, because it is an ethical act. Von Foerster once defined the ethical mandate that grows from social constructionism: “Act so as to increase the number of choices.”177 I would add, “for the Self and the Other.” Ironic practice, which contributes to relational or narrative development, does just that through the re-positioning of Others as legitimate and through the re-positioning of the Self as less than perfect.

Footnotes

d1 Director, Institute for Conflict Analysis and Resolution, George Mason University; Ph.D., University of Massachusetts-Amherst, 1988. I wish to acknowledge my research assistant, Terry Beitzel, with whom I had multiple conversations regarding this Article over the course of a year. With his help, I was able to identify irony as one of the discursive features of turning points and make the connection between ethics and turning points. I am grateful to the graduate students at the Institute for Conflict Analysis and Resolution (ICAR), from whom I continue to learn with delight, particularly students from my “Narrative Facilitation” course (Summer 2003): Daniel Benjamin, Laura Bryant, Jennifer Carpenter, Laura Harms, Lori Isenhower, Shane Julius, Shizu Maekawa, Maneesha Pasqual, Tracey Pilkerton, Tomokazu Serizawa, Anas Shallal, Kazuyoshi Tomita, Jocelyne Vigier, and




Monem Zribi. Their interest, energy, wisdom, and excellent questions helped me learn, and I am very grateful for their input. I also wish to thank Paul Snodgrass, a Master’s student at ICAR, for his tireless help in preparing this manuscript. Finally, I wish to acknowledge the important role that the Critical Moments Conference played in my learning about critical moments, turning points, and tipping points. Led by Dr. Kimberlyn Leary, the conference’s members included myself, John Forester, Chris Winship, Gus Stuart, Linda Putnam, Deborah Kolb, Dan Druckman, Mike Wheeler, and Kathleen McGinn.

1 See generally Kimberlyn Leary, Critical Moments as Relational Moments: The Centre for Humanitarian Dialogue and the Conflict in Aceh, Indonesia, 20 Negot. J. 311 (2004) (narrating Bill Ury’s and others’ descriptions of their participation in the Aceh negotiations, showing how often great negotiators demure on the role of their personal skills in the production of solutions, agreements, or simply the productive evolution of a conflict). Humility may play an important role in generating the conditions for effective negotiations by precluding entrenched attachment to one’s own perspective. Fundamentally, humility is the recognition that others’ perspectives may be valid. In this way, humility is a core trait for ethical negotiators. See Ernst Behler, Irony and the Discourse of Modernity 77 (1990) (discussing the role of humility in ethics); Kenneth Burke, On Symbols and Society 257 (1989) (discussing humility as a precondition for the ironic ability to have a “fundamental kinship with the enemy”). Being able to hold oppositional perspectives requires not a lack of involvement or neutrality, but the ability to see transcendently the strengths of an argument married to its weaknesses-- of “right” as the underbelly of “wrong.” This position of humility seems thus a function of, as well as pertinent to, the ability to see the all too frequent tragic irony of human negotiations--in our struggle to win, we lose.

2 See generally Christopher Winship, Veneers and Underlayments: Critical Moments and Situational Redefinition, 20 Negot. J. 297 (2004).

3 See generally Sara Cobb, Creating Sacred Space: Toward a Second-Generation Dispute Resolution Practice, 28 Fordham Urb. L.J. 1017 (2001) (discussing the liminal phase of a negotiation process, when identities are in a “between space” where people are neither who they have been nor whom they are going to be).

4 See generally Reconcilable Differences: Turning Points in Ethnopolitical Conflict (Sean Byrne & Cynthia Irvin eds., 2000) (discussing the generic use of the phrase “turning points” to refer simply to changes or mutations, rather than a specific process).

5 See generally Daniel Druckman, Turning Points in International Negotiation: A Comparative Analysis, 45 J. Conflict Resol. 519, 520 (2001).

6 See Kimberlyn Leary, Critical Moments in Negotiation, 20 Negot. J. 143, 143-45 (detailing the definitions of “critical moments” elaborated by several members of the Critical Moments Conference).

7 See generally Michael Wheeler & Gillian Morris, A Note on Critical Moments in Negotiation, Harv. Bus. School, Case Study No. 9-902-163 (2001).

8 Leary, supra note 6 at 144 (2004) (citing Linda Putnam, Transformations and Critical Moments in Negotiation, 20 Negot. J. 275 (2004)); see also Linda L. Putnam & Majia Holmer, Framing, Reframing, and Issue Development, in Communication and Negotiation 128, 128-55 (Linda L. Putnam & Michael E. Roloff eds., 1992);

9 Leary, supra note 1, at 321. See also Stuart Pizer, Building Bridges: The Negotiation of Paradox in Psychoanalysis 167-69 (1998).

10 See John Forester, The Deliberative Practitioner: Encouraging Participatory Planning Processes 202-20 (1999).




11 See Sara Cobb, Witnessing in Mediation: Toward an Aesthetic Ethics of Practice, Presentation at the Quinnipiac-Yale Dispute Resolution Workshop (Apr. 8, 2002) (unpublished manuscript, on file with author); Deborah Kolb & Judith Williams, The Shadow Negotiation: How Women Can Master the Hidden Agendas That Determine Bargaining Success 104-36 (2000).

12 Drawing on critical theory, “critical” refers to the way in which hegemonic processes are maintained, and the marginal struggle for inclusion. In this tradition, power refers to the features and processes of discourse. For elaboration of critical theories that account for rules of discourse which regulate the production of social process, see generally Michel Foucault, The Archaeology of Knowledge (Pantheon Books 1982) (1969) and Jürgen Habermas, The Theory of Communicative Action (1984).

13 See generally Deborah Kolb, Staying in the Game or Changing It: An Analysis of Moves and Turns in Negotiation, 20 Negot. J. 253 (2004).

14 See Douglas Stone et al., Difficult Conversations: How To Discuss What Matters Most 25-44 (1999).

15 See Kolb & Williams, supra note 11, at 35.

16 See Putnam & Holmer, supra note 8, at 129.

17 See Leary, supra note 1, at 314.

18 See generally Kolb & Williams, supra note 11, at 106-08 (discussing “moves” as derived from the concept of “turn” as a structure in conversation); Harvey Sacks et al., A Simplest Systematics for the Organization of Turn-Taking for Conversation, 50 Language 696 (1974).

19 See generally Daniel Druckman, Content Analysis, in International Negotiation: Analysis, Approaches, Issues 288 (Victor A. Kremenyuk ed., 2002).

20 See Druckman, supra note 5, at 523.

21 See, e.g., Max H. Bazerman et al., The Death and Rebirth of the Social Psychology of Negotiation, in Blackwell Handbook of Social Psychology: Interpersonal Processes 196, 196-228 (Garth J. O. Fletcher & Margaret S. Clark eds., 2001).

22 See Kenneth J. Gergen, Toward the Transformation of Social Knowledge 13-34 (1982).

23 For a sample of literature that addresses changes in relationships across international, organizational, and interpersonal contexts, and a discussion of change in relationships in the negotiation and/or mediation process, see generally Robert A. Bush & Joseph P. Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition 41-84 (2005); Barbara Gray, In Theory: Negotiating with Your Nemesis, 19 Negot. J. 299 (2003); Putnam & Holmer, supra note 8; Cobb, supra note 3; Kolb & Williams, supra note 11.

24 Roger Fisher, William Ury & Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In 17-39 (Penguin Books 1991) (1981).




25 Id. at 40-55.

26 Id. at 56-80.

27 I have long argued that this map does not provide sufficient detail to enable negotiators to manage complex situations/contexts. For someone omniscient, this map would be an excellent device for reaching effective and ethical negotiated outcomes. But as things are, the map is too imprecise to manage the complexity of most protracted conflicts.

28 For a description of shifts and their relationship to outcomes, see generally Druckman, supra note 19; Daniel Druckman, Departures in Negotiation: Extensions and New Directions, 20 Negot. J. 185 (2004). For a description of changes in communication patterns in conflict processes, see generally W. Barnett Pearce & Stephen W. Littlejohn, Moral Conflict: When Social Worlds Collide (1997).

29 See Rom Harré & Luk van Langenhove, Cultural Stereotypes and Positioning Theory, 24 J. for Theory Soc. Behav. 359, 362-64 (1994). Harré & van Langenhove draw on a long line of Harré’s work, including Rom Harré, Social Construction of Emotions (1986).

30 See generally Sara Cobb, Fostering Coexistence in Identity-Based Conflicts, in Imagine Coexistence: Restoring Humanity After Violent Ethnic Conflict 294 (Antonia Chayes & Martha L. Minow eds., 2003); Carlos E. Sluzki, The Better-Formulated Story, Keynote Address at the Italian Society for Relational Psychology and Psychotherapy International Congress: Adolescents and Their Systems (Apr. 1992) (transcript on file with the author).

31 Rebecca Clift, Irony in Conversation, 28 Language Soc’y 523, 523 (1999).

32 This may sound like a contradiction in terms, but it is not. I will argue that certain turning points are necessary for relational development, but they may be non-linear in their appearance. As I will define relational development in terms of narrative process, I will be arguing that narrative (relational) development depends on the appearance and elaboration of key narrative features which function as turning points in the development of the narrative.

33 See William A. Donohue & Gregory D. Hoobler, Relational Frames and Their Ethical Implications in International Negotiation: An Analysis Based on the Oslo II Negotiations, 7 Int’l. Negot.: J. Theory & Prac. 143 (2002). Donohue posits the importance of “relational shifts” for creating an environment where folks could “bargain in good faith.” Id. at 143.

34 See Kolb & Williams, supra note 11, at 104-36.

35 Id. at 155-82.

36 This is perhaps a function of their assumption of the complexity of conversations which would preclude easy descriptions of a sequence of patterned moves and turns.

37 See generally Tim Borchers, Relationship Development, in Interpersonal Communication, http:// www.abacon.com/commstudies/interpersonal/indevelop.html (last visited Nov. 12, 2005) (describing the evolution of relationships).




38 This is also the case with other relational development theories. See, e.g., Judi Miller, Learning from Early Relational Experience, in Learning About Relationships 1, 8-9 (Steve Duck ed., 1993).

39 Carlos E. Sluzki, The Process Toward Reconciliation, in Imagining Coexistence: Restoring Humanity After Violent Ethnic Conflict supra note 30, at 21-32.

40 See The Conflict Resolution Information Source, http:// www.crinfo.org (last visited Oct. 12, 2005), to pull up a sample listing of resources and discussion on the relation of trust and conflict processes; search “trust” to get a sample of articles on this topic. There is wide recognition that trust is important to conflict resolution, and some theoretical assumptions have been made as to how trust can be generated through “respect and recognition.” See Bush & Folger, supra note 23, at 53-62.

41 See Jenai Wu & David Laws, Trust and Other-Anxiety in Negotiations: Dynamics Across Boundaries of Self and Culture, 19 Negot. J. 327 (2003) (describing the need for reflective space where negotiators can come to understand the Other). While these authors describe trust as a condition of the relationship, rather than an intra-psychic condition, they link the production of trust to the psychological traits/capacities of individuals.

42 See Roy Lewicki & Edward Tomlinson, Trust and Trust Building, in Beyond Intractability (Guy Burgess & Heidi Burgess eds., 2003), available at http://www2.beyondintractability.org/m/trust_building.jsp (summarizing the assumptions about the concept of “trust” in the negotiation literature). This article posits the presence of different kinds of trust that are established over the course of the development of the relationship. However, although the article terminates in a set of recommendations for building trust, these recommendations are not themselves formulated as a sequence. Moreover, as trust is formulated as an intra-psychic process in the heads of individuals, the concept cannot be used to characterize a relational process without committing an error in logical typing: the class (“trust”) cannot be represented by the items within the class. It is further very interesting to note Bateson’s disdainful discussion of the way that concepts are used to define themselves, creating a recursive definition of sorts that cannot terminate in any legitimate explanation. Gregory Bateson, Steps to an Ecology of Mind: Collected Essays in Anthropology, Psychiatry, Evolution, and Epistemology 177-200 (1972). Defining “trust” as both a cause and an effect of relationships that generate trust is a good example of this. See id. at xxvii (discussing Molière, who asked a medical student “to state the ‘cause and reason’ why opium puts people to sleep.” The candidate triumphantly answered in dog Latin, “because there is in it a dormitive principle (veritus dormitiva)”). The field of negotiation has, in my view, similarly answered the question as to how trust is developed in relationships. And once more, I am suggesting that the problem the field has is that it seeks to address a relational process using descriptions of intra-psychic processes. But see generally Timothy Bickmore & Justin Cassell, Relational Agents: A Model and Implementation of Building User Trust, in Proceedings of the SIGCHI Conference on Human Factors in Computing Systems 396 (Mar. 31-Apr. 5, 2001) (describing trust as a relational process, and offering a set of discrete practices, in conversation/interaction, that contribute to the development of trust). Yet, even this theoretical advance is still in the formative stages and, therefore, has limited applicability to the wide array of negotiations that must be understood, normatively, as relational development.

43 See generally Relational Psychoanalysis: The Emergence of a Tradition (Stephen Mitchell & Lewis Aron eds., 1999).

44 Pizer, supra note 9, at 197-99.

45 Id. at 1.

46 See infra note 111.

47 Irwin Z. Hoffman, Ritual and Spontaneity in the Psychoanalytic Process: A Dialectical Constructivist View 179-91 (1998).




48 Id. at 231-34.

49 Id. at 219-44.

50 Hoffman, supra note 47, at 142.

51 Id. at 133-62.

52 This team was composed of a group of clinicians and researchers, and their work led to the publication of seminal texts. See, e.g., Paul Watzlawick, Janet Beavin Bavelas & Don D. Jackson, Pragmatics of Human Communication: A Study of Interactional Patterns, Pathologies, and Paradoxes (1967); Paul Watzlawick, John Weakland & Richard Fisch, Change: Principles of Problem Formation and Problem Resolution (1974).

53 See Daniel Wegner, Ironic Processes of Mental Control, 101 Psychol. Rev. 34, 34 (1994); Michael Rohrbaugh & Varda Shoham, Brief Therapy Based on Interrupting Ironic Processes: The Palo Alto Model, 8 Clinical Psychol. 66, 77 (2001) (noting that Wegner introduced the phrase “ironic processes” in cognitive intra-psychic laboratory tests where subjects’ “attempts to suppress an unwanted thought (e.g., trying not to think of a white bear) often lead to increased thought intrusion”).

54 See Rohrbaugh & Shoham, supra note 53, at 71 (describing the stages of intervention in ironic processes).

55 Id. at 77-78.

56 Research on the Palo Alto group’s success rates shows an interesting and statistically significant difference between patients who were seen for ten sessions, as opposed to five. The latter group had lower rates of success, implying that more time in “brief therapy” was needed--somehow the turning point was not reached in most cases, or it did not hold, but it did when patients had ten sessions. Also, success was higher for patients who saw more than one therapist, which is a counterintuitive finding, for it implies that turning points are not generated by the quality of the connection with the therapist (as the relational psychoanalyst would claim). See Varda Shoham & Michael J. Rohrbaugh, Brief Strategic Couple Therapy, in Clinical Handbook of Couple Therapy 5, 5-25 (Alan S. Gurman & Neil S. Jacobson eds., The Guilford Press ed. 2002).

57 See Druckman, supra note 28 (arguing that this is a function of the way that process analysis, as method, seeks to develop causal descriptions by tracing back from outcomes; it is, by definition, retrospective). The Critical Moments seminar participants have largely agreed that turning points can be known retrospectively. However, as the group has continued to work on this theme, there are those of us, including myself and Daniel Druckman, for example, who are working on separate projects toward modeling turning points so that they might be identified prospectively as well.

58 Harré & van Langenhove, supra note 29, at 359.

59 See generally Harré, supra note 29.

60 I am basing these features of the conflict narrative on my own practical experience as a consultant and a mediator. See Sara Cobb, A Narrative Perspective on Mediation: Toward the Materialization of the “Storytelling” Metaphor, in New Directions in Mediation: Communication Research and Perspectives 48 (Joseph P. Folger & Tricia S. Jones eds., 1994).




61 Robert H. Mnookin et al., Beyond Winning: Negotiating to Create Value in Deals and Disputes 157-66 (2000) (highlighting the social psychological barriers to negotiation. These barriers such as “reactive devaluation” and “partisan perceptions” are described as stable features of negotiation, yet they must be overcome, he notes, to reach successful outcomes.).

62 Rohrbaugh & Shoham, supra note 53, at 68.

63 Luk van Langenhove & Rom Harré, Introducing Positioning Theory, in Positioning Theory 14, 21-22 (Rom Harré & Luk van Langenhove eds., 1999).

64 Id. at 16.

65 Langenhove & Harré, supra note 63, at 43-44.

66 See generally George A. Kelly, A Theory of Personality: The Psychology of Personal Constructs (1963) (noting that attributions are a function of construct systems). A construct is a set of oppositional terms whose meaning is derived from the opposition itself. Kelly pointed out that these oppositions, or construct systems, are not necessarily based on linguistic opposites, but rather on oppositions that are used by speakers. Id. at 105-10. So while the linguistic opposite of “kind” is “unkind,” a particular speaker, or a group, or even a culture, may use “lazy” as the opposite of “kind.” In this way, positions are socially constructed on the basis of constructs that are not linguistic opposites, but pragmatic opposites that are indigenous to that setting. For this reason, it is imperative to work, as a negotiator or mediator, to grasp the construct system in use by Others, so as to ascertain the interpretative framework within which positions are attributed to Self/Other. Id. at 131-35.

67 See generally Sara Cobb, “Theories of Responsibility”: The Social Construction of Intentions in Mediation, 18 Discourse Processes 165 (1994).

68 See Cobb, supra note 67, at 165-86. See generally Rom Harré & Peter Stearns, Discursive Psychology in Practice (1995).

69 There is no research to date that differentiates the relative importance of the features of the conflict narrative (character roles, plots and themes). We do know that relationships matter to the evolution of negotiation. See Kathleen L. McGinn, For Better or Worse: How Relationships Affect Negotiation, 7 Negotiation, No. 11, Nov. 2004, at 1-3. This could imply that the character roles are differentially central in the formation of the conflict narrative, and suggest that the other narrative features, plot and moral themes, as in fact in service to character roles. However, this would need to be the focus on an empirical investigation. I have one such study in the design phase at the time this Article is being revised for publications.

70 This is not to say that positioning is an instrumental process, which would imply that (a)folks are mindful of how they are positioned, (b)they are mindful of the consequences of being positioned relative to access to resources, and (c)if they were positively positioned they would automatically have resources conferred upon them. While resources would not be conferred without legitimacy, legitimacy does not, in and of itself, structure, organize, or confer resources. Experienced negotiators would, if asked, be easily able to distinguish positive from negative positions, and they would be able to narrate the consequences of those positions. This is because positions are a function of speech acts, which are, in and of themselves, a highly patterned activity. See Harré & van Langenhove, supra note 29 at 362-64. The predictability of speech act patterns reveals the practical know how of people engaged in interaction. If Harré is correct in his assumption that positions are constructed in interaction, then it follows that positions are also patterned activity.

71 Note that “legitimacy” is not equivalent to “recognition” or “affirmation,” both of which are positive psychological experiences. However, “legitimacy” is fundamentally a social, not a psychological, attribute, as my student Anas Shallal, an ICAR student,




pointed out in a recent class discussion of Harré’s concept of position. In this way, it is possible to differentiate “legitimacy” from “face” .

72 Perhaps we could define “trust” in terms of the degree to which persons rely on the positive construction of themselves by others. This would shift attention away from trust as an attribute of persons to being a feature of the discourse itself.

73 Once, in a negotiation with a senior colleague over the content of some course materials that I was preparing and delivering to students in his course, I complained to him (via e-mail) that I did not feel that he was listening to me; I had repeatedly given my reasons for the materials I had proposed and written, and he had continually asked me to make significant changes in those materials. He responded to my complaint by saying that I sounded “like [his] teenage daughter having a hissy fit” (via e-mail). From this de-legitimized position, I contemplated telling him that I pitied his daughter, as she, like me, most likely often felt “unheard.” But instead I held my tongue, made the changes he requested, and apologized when next I saw him for my complaint, reaffirming and deferring to my colleague’s seniority. I am aware, however, that this move on my part did nothing to constitute a legitimate position for me. Once de-legitimized, it is very difficult to restructure one’s position from within a negotiation, particularly if the de-legitimizing party does not elaborate a new, more positive position for the de-legitimized party. It would have been possible, in this case, for the senior colleague (a)to indicate, with a twinkle, that he had behaved like a bully and compliment me for managing to stand up to him for even a short while, or (b)to note that my abject apology indicated wisdom on my part that was clearly beyond that of a teenager and ask me to give lessons to his daughter. Either way, we both would have laughed, and I would have had a better position in discourse as well as an improved relationship with him.

74 See Bateson, supra note 42, at 201-27 (arguing that each communicative act was a proposal for a particular relationship; in responding to that act, persons accept, reject or modify the proposal). I would further argue that each proposal is housed within a narrative structure that makes sense of the proposal, providing context.

75 Note that even when there is no seeming reaction to a proposal, such as in the case of imperviousness, there is still a response to a proposed position set, even if that response is to treat the proposal as if it does not exist. See Watzlawick, Beavin & Jackson, supra note 52, at 91-93, for a discussion of the role of imperviousness in the communication process, which the authors use to support their claim about the impossibility of not communicating. In my view, terrorists’ acts are interactional responses to imperviousness. It could be argued that terrorism is the interactional response to prolonged imperviousness. See generally Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (1985). In my view, the West has been impervious to the position set proposed by fundamentalist Muslim groups in that the West has refused to enter into a negotiation over positioning. Some have argued that the war on Iraq was carried out to occupy the country in order to reduce the need for the presence of U.S. troops on Saudi soil, which fundamentalist Muslim groups have decried. If that is the case, it would be imperative for the United States to respond to the position created by these groups--simply taking the troops off the soil does not constitute a response to the position, for the United States would not have connected the withdrawal of troops to the groups’ proposed positions. Refusing to negotiate (imperviousness) is itself a strong and potentially lethal response to proposed positions, disqualifying the Other not at the level of the content of the proposal, but at the level of having the legitimacy to have a proposal in the first place. Terrorism begins in the space where the right to propose positions is denied.

76 See Watzlawick, Beavin & Jackson, supra note 52, at 54-59 (presenting research on the problem of “punctuation” in communication processes: interactants routinely externalize the cause of their own actions in some initial condition defined as the particular act of an Other).

77 See Bronwyn Davies & Rom Harré, Positioning and Personhood, in Positioning Theory, supra note 63, at 32-52 (arguing that differentiation of “role” with “position” posits that position is inherently a reflection on the moral location of a character in a story, where “role” may address participation in a given plot without signaling the moral dimensions of that participation).

78 Here I am referring to “contain” not only as to “hold within” but also in the sense of “restricting.”




79 These features are derived from the research done by Sluzki on “better-formed stories” in therapeutic settings. See generally Sluzki, supra note 30. In a review of family therapy cases, he argues that these features offer a normative roadmap for moving from problematic to “better” stories in the course of treatment. This normative view of narrative flies in the face of the postmodern cannon on narrative theory and practice that argues for the validity of all narratives. That relativistic position not only is naïve, in that it presumes that narratives are somehow not themselves action, but it also stalls out the possibility of a narrative approach to ethical practice in conflict resolution.

80 For a discussion of Pareto optimality, see James Sebenius, Negotiation Analysis: A Characterization and Review, 38 Mgmt. Sci. 18, 18-38 (1992) and Ariel Rubinstein, On the Interpretation of Two Theoretical Models of Bargaining, in Barriers to Conflict Resolution 120, 120-30 (Kenneth Arrow & Robert H. Mnookin et al. eds., 1995).

81 See William Wilmot, Dyadic Communication: A Transactional Perspective 122-23 (1975).

82 To date, the cases that provide the basis of this analysis are from therapy and mediation practices. Additionally, this analysis has not been systematic, so the “research” is in an incipient stage. I look forward to modeling interaction using the lens of the “better formed” narrative in agent-based simulations. This project is in its early phase.

83 I am here describing turning points that generate positive relational evolution; however, relational devolution is also generated by turning points that elaborated increasing negative and polarized character roles, increasing the linearity of the plot and reducing the complexity of the plot and themes (reversing the turning points listed above).

84 This would be easy to test; parties to a conflict should be more likely to contest alterations in plot or values that threaten the legitimacy of their positions in discourse. Even though there are plot alterations that could generate alterations in positions, there are likely many ways to alter plot and/or themes without proposing alterations which threaten the legitimacy of the speaker. If that is the case, then we could presume that the more important alterations are those that threaten legitimacy. Thus, the dimensions of narrative change are not equivalent--the role/position is more critical to interaction/relationship than plot and themes, even though they are systemically inter-related.

85 See van Langenhove & Harré, supra note 63, at 14-31.

86 It could be argued that peace accords that do not re-position parties as legitimate are less likely to be sustainable. This is a hypothesis that would need to be researched via the examination of the language of any given peace accord. New positions in discourse would, of course, also need to be reproduced in multiple institutions as well, in order to keep it “alive” and not just something that existed on paper in an accord.

87 W. Barnett Pearce & Vernon E. Cronen, Communication, Action, and Meaning: The Creation of Social Realities 311-12 (1980).

88 While I have no empirical evidence to support this claim beyond my practice and life experience, it remains an interesting postulate that could prove useful in modeling a sequence of turning points that contribute to narrative and relational evolution.

89 See Cobb, supra note 67, at 178.

90 Claudia Liebler & Cynthia Sampson, Appreciative Inquiry in Peacebuilding: Imaging the Possible, in Positive Approaches to Peacebuilding: A Resource for Innovators 55, 56-61 (Cynthia Sampson et al. eds., 2003).




91 For good reviews of this literature, see generally Putnam & Holmer, supra note 8, and Gray, supra note 23.

92 See Watzlawick, Beavin, & Jackson, supra note 52, at 194-211.

93 David Laws & Martin Rein, Reframing Practice, in Deliberative Policy Analysis: Understanding Governance in the Network Society 172, 203 (Maarten A. Hajer & Hendrick Wagenaar eds., 2003).

94 See Victor W. Turner, The Ritual Process: Structure and Anti-structure 125-30 (1969).

95 See Peter Schwartz, The Art of the Long View: Planning for the Future in an Uncertain World 27-46 (1991).

96 See Marvin Scott & Stanford Lyman, Accounts, 33 Am. Soc. Rev. 46, 58-61 (1968) (discussing the role of accounts in the management of identity).

97 See Laws & Rein’s discussion of this process within negotiation, supra note 93, at 201-03. This process enables us to see how new frames do not emerge out of the blue, but rather are constructed in relation to existing frames. Here I am explicitly proposing that “shingling,” which has been described by Laws & Rein relative to the reframing process, can also be used to describe re-positioning processes. Please note that a frame is not necessarily equivalent to a position in discourse. Because a frame can be any interpretative scaffold for giving meaning to something, it is broader than a “position.”

98 See R.D. Laing et al., Interpersonal Perception: A Theory and Method of Research 3-34 (1966) and Watzlawick, Weakland, & Fisch, supra note 52, at 52, for descriptions of how each communicative act is essentially a proposal that contains information as to how I see myself, how I see you, and how I see you seeing me. This is very different than the notion of “proposal” as an offering of a solution set that is used in the field of negotiation.

99 For an excellent review of the literature on irony, see generally Clift, supra note 31. She notes that traditional perspectives describe irony as being the resonance between the said and the unsaid, or as being a proposition which simultaneously denies itself. However, she then goes on to review alternative perspectives, such as irony as “echo” or irony as “frame.” Id. at 533. For a deeper understanding of the evolution of the notion of irony in modern and postmodern literary criticism, I refer you to her review.

100 Id. at 533. Clift critiques those that conceptualize irony as an “utterance.” She notes that irony, as performance, depends on the sequential structure of conversations, as well as on the rules/norms within any given discursive community. Thus, the example I offer, while it does not display the actual talk, does describe the unfolding of the interaction over time, with all sorts of embedded rules/norms displayed. This is one way of noting that ironic performance depends heavily on cultural resources. See Linda Hutcheon, Irony’s Edge: The Theory and Politics of Irony 89-115 (1994) (describing the role of “discursive communities” in the production of irony).

101 Humor may indeed be important to negotiations in that it may break the tension. See John Forester, Responding to Critical Moments with Humor, Recognition, and Hope, 20 Negot. J. 221 (2004).

102 This was not a construction that I said to him. However, at the beginning of our interaction, as I became more insistent with him and as he continually refused to give me information, I did indeed begin to see him as a “stone-waller.” I saw him as someone who was recalcitrant, who did not want to give me information because giving me a fixed amount would leave him with fewer options available for juggling the space demands of multiple university programs. So even though I never said this to him, I was




clearly interacting with him on the basis of my construction of him.

103 One reviewer for this Article commented that this vignette exemplifies passive aggressive behavior on my part. I assume this person meant that I was being aggressive, but not overtly so. I agree at one level: the ironic move constructs a position for Self and Other that is very difficult to contest. To the extent that the Other would want me to frame myself as rigid, he is then locked in, at some level, to being framed as “flexible.” And to the extent that I have defined myself as in need of therapy, it remains as a position in discourse from which I can complain without complaining. While it would have been possible for the contractor to tell me, “Look lady, don’t get cute with me,” I could have, in turn, either apologized and asked him if he needed evidence from me that I was serious, such as an expression of anger, a formal complaint, or a series of meetings with those involved, all of which would operate at the level of speech acts as “threats.” I would not threaten this fellow given the likely possibility that this would worsen the relationship. Rather, I would have defended myself, providing a rationale for why I was defining myself as rigid, and that defense would have included an account of my ignorance and lack of experience in moving an academic program. I would then suggest that we meet regularly, so that I could at least get educated about the process. If he refused, I would have defined myself as one of those pesky “clients” that drive contractors crazy with their questions and recommend that we meet to get the scope of the project defined, so I could relax a little. It is very difficult to second-guess an interactional sequence, but I played this one out a bit to show that even in a case in which the contractor would have protested the ironic positions I constructed for us, I would have still followed the logic of creating a position in the discourse for myself that displayed the shadow side of my legitimacy. The example scenario shows that indeed, this is a very powerful move. However, that it is powerful in no way implies that it is unethical. We cannot help but position Self and Other in the course of interaction. I will take up the ethics of ironic practice in the last Part of the Article.

104 See Clift, supra note 31, at 533.

105 Id. at 545.

106 Hutcheon, supra note 100, at 37-56.

107 Clift, supra note 31, at 546.

108 Hutcheon, supra note 100, at 37-43. I have been impressed by Barshefsky’s account of her negotiation with China on intellectual property protection. When confronted with an ultimatum from her Chinese negotiator, she responded with irony, noting that he likely could not have meant what he said, because if he meant it she would need to break off the negotiations. This is an example of how, on one level, Barschefsky gave an ultimatum (“I will break ofs negotiations if you give me an ultimatum”), while, on another level, by framing it as a hypothetical, she denied giving that ultimatum. See James Sebenius & Rebecca Hulse, Charlene Barshefsky (B), Harv. Bus. School, Case Study No. 9-801-421 (2001).

109 Hutcheon, supra note 100, at 29.

110 Id. at 54-55.

111 Hutcheon cites Aristotle’s concern that irony might indeed both reflect anger as well as cause it. She further notes that Aristotle was concerned that the ironist was perhaps dangerous, for, given the nature of irony, it was impossible to tell how close any ironist was to dangerous action or violence. Id. at 42. While I agree that this evaluative “edge” of irony can be used in a way that is destructive to relationships, I am presuming that this edge can also be used, as it is described, to create affiliation as well. See id. at 47 (listing the multiple functions that irony can perform).




112 Clift, supra note 31, at 540-41.

113 The Chatham House Rule is as follows: “When a meeting, or part thereof, is held under the Chatham House Rule, participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participants, may be revealed. The Royal Institute of International Affairs, The Chatham House Rule, available at http://www.riia.org/index.php?id=14 (last visited, Dec. 12, 2005). This is an excellent example of an ironic performance, as all participants in a Chatham House process know they have purposive roles but will pretend, for the duration of the workshop, that they do not. Of course, in that process they come to understand the way that their role or the absence of that role constrained or enabled them to generate alternatives. Being explicitly out of role, while implicitly retaining the role, exemplifies being both “in and outside” the frame. The ironic nature of the process, generated by the Chatham House Rule, makes the “shift in footing” possible.


115 See Hutcheon, supra note 100, at 44-56. From this perspective, exaggeration, tied to a negative position, is equivalent to sarcasm. However, unlike sarcasm, which creates only exclusion, ironic performance has the potential to build affiliation and contribute to relational development. Also, the speaker/creator of the sarcastic performance disappears as the creator of the evaluative frame. Disconnected from its creator, sarcasm’s evaluative edge masquerades as a universal judgment, without a person responsible for its creation. For an excellent example of sarcasm, see generally Jonathan Swift, A Modest Proposal, in Jonathan Swift: A Critical Edition of the Major Works 492, 492-99 (Angus Ross & David Wolley eds., 2003).

116 Elsewhere, I have written on the production of liminal space in the process of mediation. See generally Sara Cobb, Liminal Spaces in the Negotiation Process: Crossing Relational and Interpretative Thresholds in a Family Business Negotiation (2001) (unpublished manuscript, on file with Harvard Negotiation Law Review). Following van Gennep, I noted that this “between” space is created via the inversion or reversal of social roles. See generally Arnold van Gennep, The Rites of Passage (Monika Vizedom & Gabrielle Chaffee trans., 1960). This convinced me that irony itself is generative of liminal space--a place where we are no longer who we were, and not yet who we are to become.

117 Cobb, supra note 116, at 19-20.

118 Again, examples of reversal, tied to a negative position for Others can dissolve into simple sarcasm--characterizing the Palestinian suicide bombers as “peace-loving” accentuates the negative evaluative edge, and, again, increases exclusion and reduces affiliation.

119 See generally Wayne Booth, A Rhetoric of Irony (1974); Alan Wilde, Horizons of Assent: Modernism, Postmodernism, and the Ironic Imagination (1987); Katharina Barbe, Irony in Context (1995).

120 See generally Burke, supra note 1; Clift, supra note 31.

121 Mikhail Bakhtin, Problems of Dostoevsky’s Poetics 208 (1984).


123 The content of a given construct is dependent on the local conditions--people, institutions, and culture. Thus, there is no way to pre-determine what the construct would be. The content of a given construct emerges out of these local conditions and is more-or-




less idiosyncratic to a given conflict. However, there are certainly recurring (mythic) patterns within a culture, so within the United States we may all be able to predict how others might construct the underbelly of the notion “patriot,” i.e., the kind of blind support for country that is impatient with dissent or multiple perspectives and impatient with democratic process. Now there is an irony.

124 Note also that “forgetting to smell the roses” is a soft and light underbelly; this is a good example of how the exposure of the underbelly can be done in a way that does not entirely threaten the legitimacy of the speaker.

125 See Clift, supra note 31, at 533.

126 This paper was written, and this case developed, prior to the election, which brought Hamas to political power. However, while this paper was going to print, Hamas was elected, and I recognize that the example, at this point, does not address the emerging complexities.

127 Negative spirals have their own thresholds that are not known to parties until they are crossed. For example, the visit of Ariel Sharon to the Temple Mount/Haram al-Sharif that touched off the second Intifada could not have been predicted; so at some level, parties to conflict proceed as if the rules of the game will not change as the negative spiral continues. Yet the rules do change, and things get worse.

128 Here I am referencing the scenario-building process generally, using Schwartz’s book title. See Schwartz, supra note 95, at 100-17 (describing the use of scenario-planning for creating the “long view”).

129 These explorations might take the form of conversations at a summit meeting or, preferably, a chain of rituals that engaged parties from both sides within different levels of civil and religious groups. Gopin has written about the importance of symbolic rituals for supporting the emergence of new ways of interacting. See generally Marc Gopin, Holy War, Holy Peace (2002). It would also be the case that these rituals and conversations would need to be widely disseminated through the media to become a part of the public discourse on either side.

130 See Frank Masterpasqua & Phyllis Perna, The Psychological Meaning of Chaos: Translating Theory Into Practice 203-12 (1997). See also Robert Schehr & Dragan Milovanovic, Conflict Mediation and the Postmodern: Chaos, Catastrophe, and Psychoanalytic Semiotics, 26 Soc. Just. 208, 216-17 (1999).

131 See generally Jean Piaget, The Equilibrium of Cognitive Structures: The Central Problem of Intellectual Development (1985).

132 See Stephen W. Littlejohn & Karen A. Foss, Theories of Human Communication 188-91 (1983) (describing Duck’s theory of relational dissolution, supra note 38).

133 Aristotle, On Poetics (Seth Benardete & Michael Davis trans., St. Augustine’s Press 2002).

134 Fisher, Ury & Patton, supra note 24.

135 I do not intend to imply that negotiation experts such as Fisher, Ury, and Patton have no ethical frameworks to evaluate their actions. These scholars are extremely ethical as persons in both personal and professional domains. I am rather trying to distinguish theories that are prescriptive on the basis of a pragmatics from theories that offer both a pragmatic and an ethical basis




for prescription.

136 See Forester, supra note 10, at 115-45.

137 See Cobb, supra note 11, at 9-16.

138 See Jenny Berriens & Christopher Winship, Should We Have Faith in Churches? The Ten Point Coalition’s Effect on Boston’s Youth Violence, in Guns, Crime and Punishment in America 222 (Bernard E. Harcourt ed., 2003); John Burton, Violence Explained: The Sources of Conflict, Violence and Crime and their Prevention 32-40 (1997); Vamik Volkan, Blood Lines: From Ethnic Pride to Ethnic Terrorism, 202-28 (1997).


140 See Liebler & Sampson, supra note 90, at 55-79.

141 See Wheeler & Morris, supra note 7, at 8-9; Stone et al., supra note 14, at 168-71. See generally Leonard L. Riskin, The Contemplative Lawyer: On the Potential Contributions of Mindfulness Meditation to Law Students, Lawyers, and Their Clients, 7 Harv. Negot. L. Rev. 1 (2002).

142 See Forester, supra note 10, at 141-53; Stone et al., supra note 14, at 129-234; Fisher, Ury & Patton, supra note 24, at 10-11.

143 See generally Riskin, supra note 141.


145 See Michel Foucault, The Discourse on Language, in The Archeology of Knowledge, supra note 12, at 215-37.

146 See Chris Mitchell, Asymmetry and Strategies of Regional Conflict Resolution, in Cooperative Security: Reducing Third World Wars 25, 25 (William Zartman & Victor Kremenyuk eds., 1995).

147 Forester, supra note 10; Habermas, supra note 12.

148 Following Druckman, supra note 5, a “turning point” signals a change in the trajectory of the action. Thus, it forecasts interest in and attention to the “from/to” aspect of that action. Even though a “point” also refers to a discrete moment, as does the language of “critical moment,” it has the advantage of attending to the change in the directionality of action. Yet, in contrast to Druckman, I am not “connecting the dots” between turning points to outcomes, but rather I am working out a way to attempt to describe turning points in the context of their role in positioning in discourse. Id. at 520-21.

149 See Paul A. Chilton, Metaphor, Euphemism and the Militarizarization of Language, 10 Current Res. on Peace and Violence 7 (1987). Using “critical discourse moments” (CDM’s), which he argues reflect the process of managing “face,” (drawing on Ervin Goffman, Frame Analysis: An Essay on the Organization of Experience (1974) and Penelope Brown & Sarah Levinson, Universals in Language Use: Politeness Phenomena, in Questions and Politeness: Strategies (Esther Goody ed., 1978) (describing




“politeness theory”)), Chilton works to define moments that are critical to face in the interaction. Chilton, supra at 12. In my doctoral dissertation research, I used his concept of CDM’s to perform an analysis of a therapy session, tracking the impact of the therapist’s reframing on the evolution of the interaction. I am now using a very different notion of critical discourse moment, as I am no longer relying on “face” as the explanation for social interaction. Sara Cobb, Toward a Hegemonic Analysis of Discourse: The Concept of Power in Family Therapy (1988) (unpublished Ph.D. dissertation, University of Massachusetts, Amherst) (on file with author).

150 As a practitioner, I have almost never seen a party de-legitimize Self--negative positions are always Other-oriented. However, as a therapist, I frequently had clients negatively position Self. From this perspective, therapists, facilitators, mediators, and change consultants are all professionally engaged in legitimizing people who, from within a given context, cannot manage to transform their negative position. Kolb has made this point to me, arguing that negotiation is different from third-party processes, due to the difficulty that negotiators have in altering their positions from within. I have disagreed with her, as I think there are rhetorical strategies that can be used to shift positions in discourse form “within,” and further, and more importantly, there is little distinction between “in” and “out.” Mediators who we think are “out” are actually “in,” and negotiators who are “in” can also be “out.” See Kolb and Williams’s discussion of how to gain perspective on one’s own position in a negotiation by “suspend[ing] belief or at least resist[ing] drawing premature conclusions--about the situation or your counterpart’s motivations.” Kolb & Williams, supra note 11, at 144. In my view, Kolb and Williams are advocating a set of practices that are intended to help women, from within, re-negotiate their positions in the discourse.

151 While it is certainly the case that parties are legitimized on a regular basis by members of their personal and professional network, conflicts often escalate precisely because parties reciprocally de-legitimize each other. However, the legitimacy that is conferred in many other contexts of a party’s life does not cancel out or dilute the negative impact of the de-legitimacy proposed by Others during a negotiation. I know of no research that relates the de-legitimacy constructed by Others for speakers in a negotiation to the attempts by that de-legitimized person to mitigate that social construction by being elaborated as “legitimate” by persons in their network. It would be very interesting to study this connection by asking parties engaged in intractable conflicts with whom they speak (and how often they do so) that provides for them an antidote to the de-legitimizing interaction within the context of the conflict. This would lend a social network lens to the analysis of conflict and conflict resolution dynamics.

152 See Richard Buttny, Blame-Accounts Sequences in Therapy: The Negotiation of Relational Meanings, 78 Semiotica, 219-47 (1990), for a discussion of “adjancy pairs” in speech act sequences. See also Kolb, supra note 13 (elaborating on her model of “moves and turns,” offering a set of strategies for both identifying and managing critical moments in negotiation).

153 Much of this research has focused on trust-building and coexistence but there is equal emphasis on the other side, i.e., “hurting stalemates” (see Eric Brahm, Hurting Stalemate Stage, in Beyond Intractability (Guy Burgess & Heidi Burgess eds., 2003), available at http:// www.beyondintractability.org/essay/stalemate (last visited Feb. 9, 2006)); “impasse” (see Lawrence Susskind & Jeffrey Cruikshank, Breaking the Impasse: Consensual Approaches to Resolving Public Disputes 3-10 (1987)); and the conditions that favor violence (see Richard E. Rubenstein, Alchemists of Revolution: Terrorism in the Modern World 49-64 (1987)). For research that focuses on the psychological dimensions of relational development in negotiation, see generally Wu & Laws, supra note 41; Daniel L. Shapiro, Negotiating Emotions, 20 Conflict Resol. 67, 67-82 (2002) and Stone et al., supra note 14. None of this work has offered a sequence with a logic for the movement between stages in that sequence (beyond the negotiation or mediation process itself).

154 A notable exception to this would be the research on framing in conflict dynamics. For a review of the framing literature, see papers submitted to the William and Flora Hewlett Foundation Conference (Jan. 1998), http://www.colorado.edu/conflict/hewlett/Conf/framing.htm (last visited Nov. 11, 2005). However, one of the central problems of the framing research is that it does not theorize the process of the evolution of frames. So we know that frames evolve, but we know less about how reframing functions. See Laws & Rein, supra note 93, at 180-201.

155 See Joann Keyton & Faye L. Smith, A Comparative Empirical Analysis of Theoretical Formulations of Distrust, Paper submitted to the International Association of Conflict Management, 16th Annual Conference (June 15-18, 2003), available at




http://ssrn.com/abstract=399500. This research uses content analysis to make inferences about trust/distrust, drawing on a list of words that are indicators of trust/distrust. While this research may illuminate the nature of the descriptions people use about their feelings of trust and distrust, it does not track the development of those concepts in the interaction, as this research was based on survey data. This is a good example of the empirical research done on trust and illuminates the methodological limits of content analysis.

156 The Association for Conflict Resolution advances, under the name of “neutrality,” an ethics for mediation, which rests on positivist assumptions that neutrality is possible and the observer (third party) can participate, impacting process without impacting content. Janet Rifkin, myself, and others (such as Beth Roy) have critiqued the concept of “neutrality.” See Sara Cobb & Janet Rifkin, Practice and Paradox: Deconstructing Neutrality in Mediation, 16 Law & Soc. Inquiry 35, 46-51 (1991) ; Beith Roy, Bitters in the Honey: Tales of Hope and Disappointment Across Divides of Race and Time 10-11 (1999). Therefore, although there is an ethical code for practitioners, I would argue that it is not sufficiently analytic to provide guidance for mediators engaged in the transformation of problems and the positive evolution of relationships. While the stages of the mediation process, like the stages prescribed in a negotiation process, often appear to foster the kind of transformation that Bush and Folger describe, there is no theory for the evolution of relationships, or turning points, that foster that evolution. See Bush & Folger, supra note 23, at 55 (describing their model of relational evolution and devolution). Even though they do offer an interesting general model, they avoid offering a set of sequenced prescriptions precisely because they see these as contrary to the natural evolution of relationships. They are committed to allowing the parties to find their way. Thus, it is precisely, and (perhaps) paradoxically, the absence of a prescribed sequence that is itself their prescription. See id. at 221 (defining “proactive” mediation).

157 Forester’s model is developmental in a very pragmatic way as well. He has described the planning process, and offers a normative model both in the ethical as well as in the developmental dimensions. John Forester, Rationality, Dialogue and Learning: What Community and Environmental Mediators Can Teach Us About the Practice of Civil Society, in Cities for Citizens: Planning and the Rise of Civil Society in the Global Age 213-25 (Mike Douglas & John Friedman eds., 1998).

158 Forester, supra note 10, at 203-12.

159 See Cobb & Rifkin, supra note 156, at 52-60.

160 Kolb & Williams, supra note 11, at 15-38.

161 Habermas, supra note 12, at 374-403. This theory has been used by John Forester to design deliberative processes that foster emancipation through participation. See Forester, supra note 10, particularly the chapter which deals with what he calls “critical pragmatism” (“On Not Leaving Your Pain at the Door: Political Deliberation, Critical Pragmatism, and Traumatic Histories”). Id. at 203-20.

162 See Loet Leydesdorff, Luhmann, Habermas, and the Theory of Communication, 17 Sys. Res. & Behav. Sci. 273, 280 (2000) (critiquing Habermas).

163 See David J. Krieger, Communication Theory and Interreligious Dialogue, 30 J. Ecumenical Stud. 331, 331-52 (1993), for a fascinating description of the relationship between discourse and inter-religious dialogue, noting that this postmodern world, which hosts multiple worldviews, does not provide the ground for dialogue, collective action, or community. He proposes three stages to the dialogue process: proclamation, argumentation, and disclosure and, in so doing, provides an interesting staged model for identifying modes of discourse that contribute to the development of community.

164 Charles Taylor, 2 Philosophy and the Human Sciences: Philosophical Papers 36-40 (1985).




165 Id. at 39.

166 See generally Cobb, supra note 11, for a discussion of how recognizing the Other is not at all similar to witnessing the Other. The former, as Oliver notes, involves the exchange of recognition for similarity, while the latter, witnessing, involves the active engagement with the Other in the social construction of their legitimacy. Kelly Oliver, Beyond Recognition: Witnessing Ethics, 33 Phil. Today 31, 41 (2000). See also Sheila McNamee & Kenneth J. Gergen, Relational Responsibility: Resources for Sustainable Dialogue 3-28 (1999), for an excellent conceptualization of “responsibility” that parties have in relations with their Others, detailing the nature of the conversations that enhance the possibility that parties in conflict can come to respect the Other.

167 See generally Vivienne Jabri, Discourses on Violence: Conflict Analysis Reconsidered (1996); Mary J. Belenky et al., Women’s Ways of Knowing: The Development of Self, Voice, and Mind (1997).

168 Oliver, supra note 166, at 33.

169 Id. at 33-34.

170 Id. at 39.

171 Id.

172 See Allen Feldman, Formations of Violence: The Narrative of the Body and Political Terror in Northern Ireland 7-9 (1991) for a discussion of the way that discourse or meaning is an “embodied transcript.”

173 Booth has argued that irony has a set of stable features, one of which is that it is intentional; it is a rhetorical practice that involves speakers indirectly contradicting themselves. Thus, irony can bee seen as a strategic practice. Booth, supra note 119, at 3.

174 Certainly there are forms of ironic practice that are not inclusive. See id. at 44. Irony could certainly be used to disqualify and de-legitimize. However, harnessed to the production of legitimacy for speakers, it is a rhetorical strategy for increasing relational knowledge and, in that way, contributes to relational development.

175 See Sara Cobb & Angela Wasunna, Humanizing Human Rights: The Voice of the Perpetrator in Truth Commissions 48-50 (2000) (unpublished manuscript, presented at the Law & Society Association, Miami, FL) (on file with author).

176 See Pumla Gobodo-Madikizela, A Human Being Died That Night: A South African Story of Forgiveness 130-31 (2003).

177 Heinz von Foerster, On Constructing a Reality, in Invented Reality: How Do We Know What We Believe We Know 60 (Paul Watzlawick ed., 1984).

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