The American comedian Rich Hall, under the stage name Otis Lee Crenshaw, writes and performs country music songs, including one song titled “F_ck Disney.” At one of his concerts, he explained why he wrote the song, saying that “The only way to be noticed is to make something litigious.”
In the song, Otis claims to have been employed by Disney, but was fired for growing a beard. As the song progresses, he says several unpleasant things about the company, and finishes with the words “F_ck you, Disney.”
Crenshaw’s ploy didn’t work – Disney never sued, and Otis remains largely unknown in the United States (although he’s well-known in England).
In January of 2014, NASA’s Mars rover Opportunity took a picture of a location that it had recently photographed (12 Martian days earlier), but now there was a new object in the image.
Nicknamed “The Jelly Donut” NASA assumed that the rover had caused a nearby rock to move, but because of the odd appearance of the rock, decided to conduct a short investigation of the object.
However, neurologist and author Rhawn Joseph didn’t believe that NASA was doing enough to investigate, and demanded that NASA perform a much more thorough examination of what he called “a biological specimen on Mars.”
When the organization didn’t respond, Joseph filed a lawsuit to compel NASA “to perform a public, scientific, and statutory duty which is to closely photograph and thoroughly scientifically examine and investigate a putative biological organism.”
Additionally, because NASA referred to the object as a rock, not a biological lifeform, Joseph also made sure to claim that the discovery of life on Mars was done “by Petitioner” (a.k.a. Joseph himself).
Litigious: To be litigious means to argue, to contend, to take your dispute to the courts. American society has become very litigious. With a population of roughly 310 million people, the U.S. has 1.2 million attorneys, 200 law schools, graduating approximately 45,000 lawyers each and every year. The court of law is where conflict is resolved.
How conflict is resolved is foundational to any society. It is a system for balancing out conflicting interest. Conflict resolution is so central to our daily lives, in so many or our interactions, that we are continuously fascinated by how they play out.
This fascination is the reason why many movies and television shows are based on the law and legal proceedings. Among the most popular in the U.S. were: L.A. Law (1986-94), the classic Perry Mason (1957-66), The Defenders (1961-65), Law & Order (1990-2010).
The popularity of these shows has led to the reality court room shows, a combination of reality television and the workings of the American legal system. The best known are Judge Judy, The People‘s Court and Divorce Court.
The Sixth Amendment states: „In all criminal prosecutions, the accused shall enjoy the right … to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, ….“
For Americans, whether in the legal system or in the workplace, the right to a hearing is fundamental. The hearing allows for the parties in conflict to make their arguments and counter-arguments. It is the beginning of the formal process of conflict resolution. Americans expect the team lead to call a hearing quickly.
In a fair hearing the conflict parties have the opportunity to present evidence – including witnesses – and to discover what evidence is brought against them. The hearing also allows for questioning (cross-examination) of the opposing party‘s witnesses. A hearing is only fair if it is administered by an impartial third party.
In the American business context the manager, as judge, may resolve the conflict based on those arguments and counter-arguments, or use the hearing as a basis for further investigation into the reasons for the conflict.
Because American managers are responsible for the results their teams produce, they focus on maintaining internal team cohesion. Conflict of any kind threatens cohesion. After having learned of an internal conflict, American managers are inclined to call the conflict parties together at very short notice. That first hearing is direct, informal and personal. The manager wants to „get to the bottom of the problem.“
Conflict: Fight, battle, war; competitive or opposing action of incompatibles; antagonistic state or action as of divergent ideas, interests, or persons; mental struggle resulting from incompatible or opposing needs, drives, wishes, or external or internal demands; the opposition of persons or forces that gives rise to the dramatic action in a drama or fiction. From Latin conflictus act of striking together, from confligere to strike together.
Escalate: To increase in extent, volume, number, amount, intensity, or scope. From escalator.
Resolve: Break up, separate; to reduce by analysis; to deal with successfully, clear up; to find an answer to; to make clear or understandable; to reach a firm decision about; to declare or decide by a formal resolution and vote; to make (as voice parts) progress from dissonance to consonance; to become separated into component parts; From Latin resolvere to unloose, dissolve, release.
Even if an American loses a conflict within a company, after having escalated it once or twice, if he/she strongly believes to be in the right, it is not uncommon for that American to seek an even higher authority – the public at large. When that happens, the person who exposes the conflict is called a “whistleblower.”
Edward Snowden was working for the NSA when he publicly accused them of spying. Snowden said that the reason why he decided to make his accusations public was that he “can’t in good conscience allow the U.S. government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.”
In 2014, former State Department official John Tye wrote an editorial in The Washington Post in which he discussed his concerns about his department.
Thomas Drake was an executive in the NSA (National Security Agency) when he began to disagree with the agency’s policies. After several attempts to address his concerns internally, Drake decided to make his complaints public and turned to reporter Siobhan Gorman in 2006.
One of the most popular genres of television in the U.S. is reality tv. In 2001, two of the top ten most popular primetime television shows in America were reality tv shows, compared to six in 2011.
Many of these shows focus on conflict and personal drama as their main premises. Even when the show’s premise is about something unrelated to the dispute, such as singing on the “X Factor” or cooking on “Top Chef”, the actual episodes invariably focus on the conflicts between the cast members and/or their family and friends at home.
In 2011, an American reality TV show H8R filmed various celebrities as they confronted people who were critical of their success. It was marketed as giving celebrities a chance to try to change the minds of the people who hated them. The primary appeal of this show was that it would allow these conflicts to be discussed publicly.
The Bill of Rights are first ten amendments to the U.S. Constitution which guaranty personal freedoms and limit governmental powers. The Sixth Amendment states:
„In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.“
The following part of the Sixth Amendment is named the confrontation clause: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”
The Confrontation Clause has its roots in both English Common Law, protecting the right of cross-examination, and Roman Law, which guaranteed persons accused of a crime the right to look their accusers in the eye.
According to the Bible, Acts 25:16, the Roman Governor Festus, discussing the proper treatment of his prisoner, Paul, stated: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.“
Germans prefer to resolve their conflicts without taking it to the courts, and with the help of a neutral, third party. The so-called mediation law permits these resolutions to be legally binding. Mediation reduces the workload of the courts and often leads to a resolution accepted by both conflict parties.
Mediation is a structured approach which guarantees that its proceedings do not become public. The conflict parties participate freely in the mediation process and are asked to seek resolution in good faith.
The mediator is a neutral and independent party, but has no power to force a resolution. The mediator guides the conflict parties to a resolution which they have formulated.
The mediation law also allows for ombudsmen, or neutral third party organizations, which also offer conflict resolution services. These include banks, insurance companies, the German rail system, scientific research organizations, local utility companies, real estate associations, legal organizations. The association of banks, for example, in 2011 resolved over 8,000 conflicts. The insurance association resolved just over 17,000 conflicts.
German workers do not like to strike. It is considered the ultima ratio – weapon of last resort – used only when negotiations about wages and worker‘s rights have completely broken down.
In 2002, when the German government passed painful but necessary social and employment reforms, there were strikes in 938 companies. In 2000 there was not a single strike. 2001 saw only 48 strikes. A decade later, in 2011, there were 158. On average only three days a year are lost due to strikes in Germany.
Ultima ratio. Latin ultimus, the last, final, the furthest away. ratio: reason, reasonable thoughts; the last possible solution, the final remaining path out of a conflict.
Friedenspflicht. Literally peace obligation or obligation to keep the peace. When German employers and employees enter into wage negotiations they are obligated for the first ten days to refrain from strikes or lockouts.
The Friedenspflicht is anchored in §74 of the Betriebsverfassungsgesetzes, the law governing the relations between employers and employees:
The employer and the works council (a kind of white collar union) should meet at a minimum once per month in order to discuss potential conflicts and to propose in good faith recommendations on how to resolve them. The employer and the works council are obligated to refrin from methods of pressure – strikes, lockouts, etc. – which could disrupt company operations.
In 1923, during the politically unstable Weimar Republic, the Stresemann government passed laws requiring a mediator to resolve conflicts between employers and labor. Should companies and labor unions not come to agreement on wages and other benefits, the government had the power – and the obligation – to engage an arbitrator, whose decisions were legally binding.
German schools train both students and teachers to anticipate and prevent potential conflicts, as well as to mediate those which have been escalated.
The Prussian military instituted a rule informally called the Prussian Night, which obligated conflict parties to not escalate their problems within the first 24 hours of the conflict. Those in conflict should first „sleep over it“, then decide how to proceed.
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