Wednesday, December 07, 2005

BEHIND CLOSED DOORS: A mediator ponders the meaning of privacy and the influence of culture

American and European differences in the law of privacyI really miss my friend Ashok Panikkar, who left Boston earlier this year to return to his native Bangalore to launch Meta-Culture, an ambitiously innovative and rapidly growing conflict resolution center.

Besides being a very dear friend, Ashok was for me a kind of 21st century de Tocqueville, a keen but affectionate observer of American political institutions and social mores.

One aspect of American culture that Ashok found especially curious (me, too, for that matter) is the schizophrenic way in which Americans construe the notion of privacy. On the one hand, we Americans insist that privacy is paramount, particularly in the home (which is, as everyone here knows, a man’s castle).

We place great value on our right to be free from governmental intrusion, and we insist that our medical histories, our video rental habits, our reproductive choices, and our handgun purchases are no one’s business but our own.

Yet we think nothing of using our cellphones to describe in the most intimate details—in public and at top volume in the presence of total strangers—our digestive ailments, in-law problems, and sexual escapades. We are also desperately eager to bare our souls and personal failings on reality television programs and talk shows. (I hasten to reassure my readers that I have personally not done any of those things. Yet.) The distinction between the private and public self has grown increasingly blurred.

“Public” versus “private” matters a lot to mediators: Those words can be said to define the line that separates alternative dispute resolution on the one hand from litigation on the other.

Litigation is a fully public activity—which to some measure is what makes it such effective leverage for settlement, particularly for swaying defendants who may be eager to avoid the embarrassing revelations discovery and trial could yield.

Mediation, on the other hand, by definition is confidential, a process unfolding privately behind closed doors. Privacy is what makes mediation eminently suitable for fruitful settlement discussions. Arbitration as well provides a private adjudication and resolution of issues.

One would suppose that privacy is a universal constant which all of us, regardless of which corner of the globe we occupy, value—and value similarly. It might therefore be easy to presume that all of us, particularly here in the West, recognize the concept of privacy as a means of honoring personal dignity and the inviolability of the integrity of the self.

As it turns out, defining privacy is not so easy—even among culturally similar societies: an enormous gulf in fact exists between American and European understandings of privacy. European traditions regarding privacy focus primarily upon the protection of personal dignity and honor; while Americans, on the other hand, often understand privacy to mean the sanctity of the home against intrusion by the state.

Yale Law School Professor James Q. Whitman illuminates and explores these differences, along with the legal, political and social traditions which explain and gave rise to them, in “The Two Western Cultures of Privacy: Dignity versus Liberty” (downloadable here in PDF).

Simultaneously serious scholarship and entertaining romp, this article takes readers from the public latrines of Ephesus (a phrase I never thought I’d ever find myself typing) to the scandals of the 19th century Parisian art scene to modern-day Washington and Monica Lewinsky. This is a fun and highly stimulating read.