March 14, 2017

People Have Feelings

Many years ago, I become very interested in a new area of legal practice named Alternative Dispute Resolution, or ADR. It was not, strictly speaking, new. However, it was being recognized and promoted as a way to unclog our courts and reduce legal fees and emotional costs for some categories of conflict.

The often used forms of ADR included: mediation, arbitration, mock trials, and other forms of settlement negotiation.

As I mentioned, I was enamored of ADR. I was a lawyer working for a government agency who was wondering how I might someday go forward into a private practice that involved little — or preferably no — litigation. I had no experience in litigation and I really did not want to gain any. So ADR looked good to me.

The A in ADR is alternative, as in alternative to litigation.” Litigation is competitive, adversarial, the goal is for my side to win — necessitating that the opposing1 side lose. ADR recognized that many times the parties might need to continue in some sort of relationship after the resolution of the dispute. E.g., a couple with children will still need to cooperate in the rearing of those children after a divorce. ADRs approach takes this into account. After two people resolve a dispute with the help of the legal system, they will need to cooperate on some issues. If the resolution of the dispute makes subsequent cooperation more difficult, the winner” only enjoys a partial victory.

People Versus Principles

One way to preserve the minimum relationship that will be needed after the dispute is settled, is to limit the scope of the battle. Attack principles — not people! If I disagree with you, I can stay in some minimally necessary relationship with you if I only attack your principles. Under no circumstance should I attack you. That may not always preserve a working relationship, but it has a far better chance than attacking you.

Principles Means Positions

Going one step further, we see that a person’s principles can be a fundamental part of who they are. So, we need to fine tune the guidance. In a dispute, it is fair to attack the other side’s position.

You take a position on a matter of importance to both of us. I disagree with you, so I engage in an attack on your position — not you. If I lose, you will be more willing to work with me because: (a) you won; and (2) I did not say ugly things about you — only about some of your positions. Also, if I win, you will find it easier to work with me. I defeated your position — not you. You can be sad or angry about losing, but since I honored you personally, you are not completely opposed to working with me to salvage what you can of your position. You were never viewed or treated as a wrong or bad person.

Why Bring This Up

Candidate and President Trump prides himself on being a good negotiator. But, my observation is that he attacks everything involving his opponent. It’s winner take all. If he wins, he acts like you should not be offended by his words about you. He sometimes acts like he would be greatly surprised that you have hard feelings about what he said about you personally.

This last part about hard feelings is confusing to me. Sometimes the President acts like it’s not personal. Just business, the way the world acts. He will denigrate and personally insult an opponent one day and praise him the next. Hilary Clinton stopped being called a crook who should be prosecuted. After the election. On election night, she was called a good, perhaps great, public servant. The President acts like it is fine to say whatever he wants about someone in order to beat them. Afterwards, he can act as if those words were never uttered.

President Trump wants to win more than he wants to negotiate a deal. In dealmaking, everyone achieves some level of benefit. I have not read his book (and I do not intend to). These thoughts are just that: thoughts. Not a researched attempt to assert and prove a point. My simple observation is that our President prefers to beat every opponent and have his own way — rather than work hard to find synergies.

  1. Simply use of the term opposing strengthens the adversarial nature of litigation. Litigation is about winning, not resolving.

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