Tuesday, March 24, 2015

Thirteen Days in September

Speaking of peace in the Middle East, I've been reading the new book about the Camp David negotiations by Lawrence Wright. Surprisingly, reading this account made me feel a little more hopeful about the prospects for peace between Israelis and Palestinians, the great unfinished business of the Camp David accords, even though the conventional wisdom in light of Prime Minister Netanyahu's recent re-election is that resolution of the issues in the territories is now a long ways off. The reasons for hope lie in recollecting that if anything, Menachem Begin was an even more belligerent character than Netanyahu is today. Begin was reluctant to concede on any issues, whether the status of Jerusalem, or Jewish settlements in Sinai, or withdrawal from the occupied West Bank. Yet even this most difficult Israeli leader, a former terrorist himself, was finally able to recognize the benefits of giving enough ground to make peace with Egypt. And Sadat, of course, eventually gave his life for this cause. It shows that under the right circumstances, even the most intransigent of parties--perhaps only the most intransigent of parties--can find the courage to make peace. While there are good reasons to be pessimistic these days about the prospects for resolving the conflict between Israelis and Palestinians, those who think it would be impossible for Netanyahu and Abbas to do something similar to what Begin and Sadat accomplished in 1978 may be speaking prematurely.

I was reading the book, not so much as a mirror to contemporary affairs but rather as a case study of a successful mediation. Even though the Camp David negotiations were so large in scale as to involve three national governments, 13 difficult days, a large number of issues, a weighty sense of history, and a great variety of personalities within each of the three camps, these negotiations went through stages that would be familiar to many mediators of much simpler disputes. The process started with the probably necessary but ultimately unsuccessful joint session. After reaching impasse, Carter presented a mediator's proposal, followed by threats to walk out by each side in turn. The parties had to be persuaded several times to return to the table, until they finally reached exhaustion and breakthrough at the end. The framework documents were not signed until the end of a grueling day and night of hard bargaining, at a point where the parties could not effectively concentrate on the details. After Camp David, the talks almost derailed again during the documentation of the final peace treaty.

Both the Israelis and the Egyptians initially approached these negotiations as do many parties entering into mediation: they failed to recognize any weaknesses in their own positions, or the need to give ground. Neither side was fully committed to the negotiation process; both were ready to walk away if agreement could not be quickly reached on something close to their terms. Both viewed the mediator's (Carter's) role as someone who would somehow make the other side give in to their demands. As Wright explains: "Sadat had assured his delegation that the summit was a simple affair. He would present the Egyptian proposal; the Israelis would spurn it; then Carter would step in to pressure Begin to accept the Egyptian offer." (p. 52)

The Israeli side made a similar mistake, focusing too closely on attacking the Egyptians' initial proposals, without realizing that Sadat had a fallback position if he could only get some of the hardline elements in his own delegation to go along. Carter was able to break this impasse in part by revealing to the Israelis, perhaps in breach of Sadat's expectation of confidentiality, that the Egyptians were prepared to make further concessions.  (p. 115)

At that point, before agreement had been reached on many points, the Americans took on a role that many mediators are reluctant to assume even after parties have reached agreement: the responsibility of drafting the settlement agreement. That way, instead of reacting to and rejecting each other's proposals, both sides would wait for the American single draft and propose modifications. Probably this technique was the only way to move these negotiations forward. Perhaps it only worked because the mediator in this situation was itself a powerful, interested player, with the ability to reward or punish either one of the parties.

Even after the American draft had gone through multiple revisions, however, it still took an enormous amount of work to get both sides finally to accept the reality of reaching agreement. It took repeated reminders of the enormous cost of failure, and the great benefits of success. And even that was not enough. In the end, it took leaps of faith on both sides to embrace the cause of peace.

Mediation, in its ideal form, is supposed to foster trust and understanding between the parties in conflict, with the mediator acting only as a facilitator, not as an arbitrator imposing solutions on the parties. Wright shows that at Camp David, this did not happen. If anything, Sadat and Begin became more hostile and distrustful of each other as they were forced to spend more time confined in this remote location. Carter was also compelled to do much more than act as a facilitator, using all of the power at his disposal as President of the United States to compel the parties to reach agreement. Camp David can be faulted for failing to achieve comprehensive peace. On the other hand, what this flawed process did achieve--peace between Egypt and Israel--has proved lasting and remarkable.

Saturday, March 21, 2015

Mandatory mediation

At the Orange County Mediation Conference yesterday, one of the lunchtime speakers, Judge Nakamura, who is chair of the ADR committee of the Orange County Superior Court, mentioned that the court's existing mediation program has been poorly utilized. He seemed puzzled by this problem, since the panel of experienced court-connected mediators has a high success rate in resolving cases. And since these mediators agreed to charge only $150/hour for court-referred cases, their services are a relative bargain as well.

Judge Nakamura's proposed solution is a pilot program in Orange County for mandatory mediation of civil cases. He believes this would take legislation to implement, and he urged those attending to contact their representatives in Sacramento to promote this idea. Most users of the California court system are aware of the drastic cutbacks in court funding that have contributed to delays and slower service in court. Something should be done to try to alleviate these problems. As the judge mentioned, if the court can require parties to meet and confer before filing demurrers and other motions, why not require some form of negotiation or dispute resolution procedure to attempt to resolve the entire case?

Cheers to Therese Gray, and other members of her committee, for another informative and successful conference, where we also heard Jack Goetz and Barbara Brown talk about SCMA's mediator certification initiative, and Woody Mosten deliver a thought-provoking speech on the need for informed consent in mediation.

Friday, March 20, 2015

Patent litigation

At South by Southwest this week I attended a program on patent reform featuring representatives from both sides in the "patent troll" debate. Though there was disagreement on the nature and extent of the problem, most of the panelists seemed receptive to proposed solutions such as making it harder to get patents issued, imposing stricter pleading requirements, regulating demand letter practices, or allowing fee-shifting to discourage meritless litigation.

I wondered, however, whether increasing the size of the hurdles on the litigation track might in some cases only give parties new issues to litigate over. If the cost of litigation is what gives patent "trolls" leverage to demand settlements, then the solution might instead lie in reducing the cost of litigation. Maybe by streamlining procedures, restricting discovery, reducing motion practice, and limiting opportunities for other litigation activities that drive up costs, we could reduce the leverage of those who demand payment to avoid the high cost of litigation.

TechDirt
One of the panelists worked for a substantial tech company that has spent a lot defending itself against so-called "trolls." Even though he complained about the high cost of litigation, he seemed to take pride in his company's willingness to take a stand in these cases. I asked why, if we were interested in reducing the cost of litigation, would we want to create new issues to argue about in lawsuits. Instead perhaps we should consider taking some steps that would actually make litigation less expensive. Several members of the panel dismissed the idea. arguing that discovery, motions, and other litigation tools are necessary to smoke out and fight meritless lawsuits.

To my mind that suggests that those who are complaining about the size of the hole we have dug ourselves into are also involved in digging that hole deeper.

Wednesday, March 4, 2015

Bad deals

Israeli Prime Minister Benjamin Netanyahu's speech to Congress yesterday about the conflict with Iran (transcript here) illustrates an attitude many parties in conflict take toward settlement negotiations. As the possibility of a negotiated resolution of a conflict begins to emerge, elements on one side or the other often find themselves resisting the deal.  In this case, the deal on the table would allow Iran to maintain some nuclear capacity, but would not allow them to build nuclear weapons. It's a bad deal, according to Netanyahu, because it would allow Iran to build many thousands of centrifuges, and shorten what is called the "break out time" that it would take for the country to build actual weapons. On the other hand, if we fail to make a deal with Iran, that would perpetuate the current state of hostilities, and would not restrict Iran's ability to build a bomb at all, if they were so inclined. "No deal" would therefore increase the chances of military action, if economic sanctions are not sufficient to prevent Iran from building a bomb.

Netanyahu told Congress that we are not limited to these two unpalatable choices, and that we can insist on a better deal in which Iran's nuclear capacity is much more restricted. One might question whether he really believes in this promise of a better deal, considering his view that the Iranian government is such a dangerous, untrustworthy regime that it wants to "impose a militant Islamic empire . . . on the entire world," and "will always be an enemy of America," If that is indeed the nature of the people we are dealing with, what would be the point of making any sort of deal with them? My guess is that Netanyahu would be a critic of any potentially achievable agreement.

In his speech, Netanyahu even acknowledged that he thinks we would still be better off with "no deal" than the "bad deal."  It's a legitimate point of view. Some wars do need to be fought, and sometimes you can obtain a better result by getting tough with an adversary rather than making an agreement. But there is usually a high price to be paid by taking that road, and Netanyahu knows he cannot sell that position in the United States. Most Americans do not want war with Iran. Netanyahu is also smart enough to understand that there probably is no third way. We have heard no indication from the parties at the negotiating table, who have been at this for a long time, that Iran would consider agreeing to the terms that Netanyahu argues we should insist on. Still he is encouraging Congress to think that a third way can be found, most likely as a means of trying to build opposition to the potential agreement.

I have frequently seen parties in settlement negotiations refuse to accept the reality of the two choices in front of them. Part of the challenge for a mediator or diplomat is to get participants to recognize that the only two choices they have are either to accept the "bad deal" or to continue the conflict. At some point in the negotiations, all other alternatives have been exhausted. Still parties in conflict often cling to the belief that they are entitled to agreement on their terms, and they cannot understand why the other side will not simply surrender to their position. Moreover, the fact that the other side won't bend is often seen only as more evidence that they are the sort of bad people with whom one should be reluctant to get into bed anyway. Settlement negotiations represent a process of helping parties understand the other side's view of the world, or at least disabusing parties of the illusion that the other side will suddenly see everything their way. With Congress, that is going to be a challenge, as their political incentives often align with maintaining the fixed beliefs of constituents who never get an insider's view of negotiation realities.