Listening is a bedrock ADR practice. Does this mean we must always listen? Or can listening sometimes make things worse? Recent debates around “cancel culture” and “deplatforming” are of special interest to our field, which values the sharing of diverse perspectives but also appreciates complex social dynamics and strategic communication.

In my new article (forthcoming in Texas A&M Law Review this fall, and part of a symposium organized by Nancy earlier this spring), I argue that listening has become increasingly problematic in the era of social media and conflict spectacles, so much so that we may experience a “listening dilemma” in certain circumstances. Here is an excerpt from my current draft:

[F]or highly polarized values-based conflicts with a substantial public dimension—what I have described before as “snap disputes”—listening can seem not just difficult, but unacceptably risky. In these conflicts, people may not be willing to dialogue in good faith, meaning that they may not express themselves honestly or intend to listen to anyone with whom they disagree. When people will not dialogue in good faith, listening to them seems pointless and potentially harmful to the listener and to anyone witnessing the exchange.

Additionally, in these high-stakes value-intensive conflicts, some people may hold views that other people consider intolerable, as a matter of human rights or individual identity. When people hold intolerable views, listening to them (and this is especially true when listening in the presence of others) may at best perpetuate false equivalencies, in which all views are deemed equal and worthy of respect, or at worst inflict serious psychic harm. In both situations (bad faith and intolerable views), people may refrain from listening to avoid the deleterious effects that listening under these circumstances may cause—but this means, of course, that the reciprocity and mutuality required for handling conflict successfully will never materialize.

This is the “listening dilemma.” The listening dilemma arises in conflict situations where listening is absolutely essential but also potentially destructive. Put another way, when dealing with extremely difficult conflict, one must listen to improve the situation, because listening increases knowledge, reduces tension, and bestows respect; but if one listens, one may worsen the situation, because listening may delay progress, perpetuate false equivalencies, cause harm, and reward bad faith tactics. Furthermore, given that assertiveness (speaking and being listened to) is essential in successful conflict management, the fact that the other side cannot be compelled to listen and likely will not listen, considering the listening dilemma, makes an already intractable and fractious situation even more so. As such, the listening dilemma contemplates both the risks around listening to others and the difficulties having others listen to us when stakes are high and conflict is intense.

The listening dilemma helps explain the disconnect that many people feel between their commitment to certain political views and their values around tolerance, inclusivity, viewpoint diversity, and cooperation.

I am interested in hearing more about whether and how you experience or have observed the listening dilemma, and if you have, whether this affects your ADR practice or teaching (especially around listening).