Tuesday, February 28, 2017

Opposing Actors

While lots of attention is being paid to this year's Oscars fiasco in which the presenters were handed the wrong envelope for the final award, I want to call attention to a little-noticed speech by Mark Rylance, who presented the (correct) award for best supporting actress to Viola Davis. Before announcing the winner, Rylance noted that oftentimes supporting actors would be better described as opposing actors. Their role is to disagree with and challenge other actors, creating the conflicts that make for a good story. He went on to explain how valuable such opposition is, not only in telling stories, but also in sports, and in society in general.

All of the nominated actresses--Naomie Harris in Moonlight, Viola Davis in Fences, Nicole Kidman in Lion, Michelle Williams in Manchester by the Sea, and Octavia Spencer in Hidden Fences--find themselves in conflict with other characters in these films. Perhaps one of the main reasons they were nominated is based on how beautifully they express and sometimes resolve these conflicts. 

Mark Rylance said: "The things these films made me remember and think about was the difficulty – something women seem to be better at than men – of opposing without hatred." I'm not going to opine as to whether women are better than men at expressing opposition without hate, but I would agree that this ability is fundamental to conflict resolution, and is also crucial to allowing our society to function well in general. As Rylance suggested, we should value opposition, not try to eliminate it. We should feel free to express opposition: to policies we disagree with, to plans others have for us that we think are unfair, to people who are trying to prevent us from doing what we need to do, to actions others are proposing that we think may be harmful. But we must try to do it without hatred, because hatred can make it impossible to resolve our disagreements.

Friday, February 24, 2017

How litigation resolves conflict

The other day, I was trying to explain to another attorney why I've grown to dislike the term "litigation," even though it's the most commonly-accepted way of describing most of my law practice. I don't have any objections to filing or defending lawsuits, and I'm also proud to call myself a trial lawyer for those unusual cases that finally make it to trial. But to me, "litigation" connotes a lot of activity in between that is not only wasteful, but actually counter-productive to the goal of resolving the dispute (I'm thinking of discovery disputes in particular, but the impulse to contest everything the other side is saying can arise in almost any procedural situation). This litigious mindset is counter-productive not only because it takes a lot of time and resources, but also because it can unnecessarily antagonize the other side and make the dispute harder to resolve. Sure, some of this pre-trial activity is necessary to prepare for trial, but the bulk of it is never used at trial. And if the case doesn't to trial, as most cases don't, litigation is an awfully inefficient way of learning enough about the value of the claims and the interests of the parties to enable the parties to settle.

But litigation, in the sense I'm using the term, still is often necessary to bring the parties to the table, replied the attorney to whom I was explaining my theory. People have to engage in it for a while before they understand just how destructive it can be. If that's so, I said, then what we are doing is encouraging people to participate in a process, not because we think it is a good method of resolving a dispute, but instead  to show our clients what a bad method it is for doing that, so that they will as a result decide to negotiate an end to their dispute instead of continuing to litigate. If that sounds cynical to my fellow litigators, just take a look at the recitals of practically every settlement agreement you've ever been involved with. They explain right on their face why the parties decided to enter into the deal, using language something like this: "in order to avoid further expense, inconvenience, and the distraction of litigation . . . . " We are admitting to the world that we are settling most cases just to avoid the harms caused by the process we supposedly entered into for the purpose of deciding the controversy!

Clients might be able to justify engaging in a process that causes pain to their adversaries because that can cause the other side to see the light and accept terms. In fact, they are often eager to go at it for that reason. But they usually don't want to cause themselves a lot of pain in the process. Clients find out that that they can't usually expect to inflict pain without receiving some back in return, just as you wouldn't expect to step into a boxing ring with another fighter without receiving some blows. As an attorney, I don't get much satisfaction out of subjecting my own clients to a painful experience just to teach them a lesson. Therefore, for the majority of private disputes, I'd prefer to start off with a less destructive process, like negotiation or mediation. And if we have to litigate, I'd prefer to do so in a way that minimizes the pain for my clients and helps more their case toward resolution, rather than in a way that forces them to settle just to avoid experiencing more of the pain the lawsuit is causing them. A lot of litigation activity is avoidable, and usually should be avoided unless it's the only way to obtain necessary information or present the case to a judge, or unless the goal is to intimidate the other side into resolution just to avoid more litigation. But if we are beating our heads against the wall just so that we will feel better when we stop doing it, we might have to question whether we needed to beat our heads against the wall in the first place.

Wednesday, February 15, 2017

"Us" vs. "Them"

You want to know about us? The kind of people you can trust, that's us. Reputable people. About them, they are the ones who caused the problem, not us. The thing about us, is that we're right. We did nothing wrong. OK, maybe we made a few mistakes, and the biggest mistake we made was probably getting involved with them. But for the most part, we're right. As for them, they betrayed our trust. They took advantage of us. They cheated us. We don't want anything to do with them any more. We just want them to admit they were wrong, pay us back, and leave us alone. But even if they did that, how could we trust them? They'll say anything, and then stab us in the back.

Why should we even listen to them? They have nothing to say to us. They'll just make us angry. They lied to us, and we can't trust anything they say. Anyway, they can't possibly win, if there is any justice. What they did was wrong, and blatantly illegal. Anybody who listens to us can easily understand that.

Another thing about them is that they are different from us. How else could they say the outrageous things that they say, and do the outrageous things that they do? They don't have the same values as us. They are evil and disgusting. If you can't see that, maybe you're one of them.


Friday, February 10, 2017

Limiting options

There is a measure on the March ballot in Los Angeles, Measure S, that would among other things force a two year moratorium on most new big real estate development projects in the city. I'm not going to discuss here the merits of this proposal, even though I have definite opinions on the topic. I'm only going to address how our political and legal processes frame decisions. In this case, instead of allowing a healthy public debate over the scale, density and location of new apartment construction, in which we could consider a range of ideas, and perhaps reach solutions that serve a number of competing interests, this ballot initiative now forces use to choose only whether we are for or against one particular proposal. We listen to the proponents spin a narrative about preserving neighborhoods against greedy real estate developers determined to profit at the expense of our quality of life, while the opponents tell an equally compelling, competing narrative about the need to accommodate a growing population without rents spiraling out of control. To win the debate, both sides are prone to exaggerate the merits of their own proposal, and the faults of the other side. The debate is contentious because voters may choose only one side or the other, and are not allowed to search for a consensus solution.

Few people would try to justify the initiative process as an ideal way to make policy. Instead, initiatives get put on the ballot because some powerful interest becomes frustrated with the normal process of legislative decision-making on an issue. And often that frustration is justified, because the partisanship and corruption of the "normal" legislative process does not always create an ideal environment for making good policy either. But at least the City Council does not have to limit itself to only voting yea or nay on one particular way to approach a problem. It has the ability to consider many ideas, and can strike a balance between competing proposals.

Moving from the local to the national level, the new administration in Washington is also presenting us with some unfortunate "either-or" decisions. No longer are we talking about reaching legislative compromises on comprehensive immigration reform, for example. Instead we have been presented with ideas somewhat out of mainstream thinking, such as building a wall on our southern border, or temporarily banning entry from certain Muslim nations. And people are forced to line up for or against these proposals to address particular aspects of immigration policy, rather than being allowed to collaborate on solutions to broader questions. Whether people think these are good ideas or bad ideas, it appears that their implementation (or non-implementation) may make it harder to address other aspects of a much more complicated problem. When these political solutions inevitably turn into legal disputes, they devolve into another kind of an "either/or" choice. Our courts are now embroiled with deciding whether the temporary ban is constitutional or not, a binary problem that barely begins to address the whole complicated issue of immigration policy.

Proposals like Measure S, or like the Muslim ban, made by outsiders to the traditional political debate, have the power to upset the whole framework of that debate, and can make the solutions previously on the table impossible. People presented only with the choice of saying yes or no to a new radical proposal, tend to adjust to this new reality quickly and gravitate to one side or the other in the new framework. In that way the radical new idea becomes normalized.

"Either/or" thinking also permeates my world of business conflict resolution. Business disputes may be caused by a range of problems, including management failures, personality issues, and factual misunderstandings. But as soon as somebody threatens to go to court, the whole complicated array of problems that gave rise to the dispute may end up getting framed as an "either/or" question of whether somebody violated a particular contract provision, or committed a tortious action. The parties to the dispute will obviously line up on opposite sides of that question, and the deciders of the controversy may be limited in their choices to yes or no, up or down, guilty or not guilty. The real causes of the conflict may never be addressed, and other solutions to the conflict, beyond the narrow question presented to the court, may never be considered.

In sum, there are at least two problems with this prevalent mode of conflict resolution. One is that we have artificially limited the solutions to only an up or down vote on one particular issue, and foreclosed our ability to consider other ideas. The second is that we have forced the disputing parties to take antagonistic positions, investing them with the motivation to deny the validity of anything the other side is saying, rather than allowing them to work together to design a solution that may work better for both of them.

Eva Strauss

Thursday, February 2, 2017

"Soft" and "Hard" Negotiations, part 2

Yesterday, President Trump had a contentious call with Prime Minister Turnbull of Australia, in which he questioned a deal made by the Obama administration for the United States to accept a number of refugees currently held in detention by Australia, indicating we might not honor it. Other government officials spent the day trying to smooth over the disruptive and aggressive conduct of our new president.

What is ironic is that Australia has long had a much tougher and more racist immigration policy than the US. We detain people claiming refugee status until their cases are determined, but Australia refuses to allow even people who have been deemed refugees to set foot on the mainland, so they remain in deplorable conditions in offshore camps. Trump has thus gratuitously insulted someone with whom he should be in sympathy on this issue, in fact someone who is taking a much harder line on immigration than the United States does.

The question then is whether negotiations should be handled in an adversarial way, even when you have two people with similar views trying to deal with a common problem. There would seem to be no obvious reason for doing this, so it might be a case where the president is conditioned to react in a hostile and threatening manner even when that style might be counter-productive to reaching a resolution of the issue. Some litigators tend to handle every case in an aggressive way, simply because that is what they have been trained to do. Or as the saying goes, if the only tool you have is a hammer, every problem starts to look like a nail.

Whether President Trump finds it necessary or appropriate to moderate his aggressive style remains to be seen. If he doesn't, then we can expect to see more of what we saw today, which required others to move in and clean up the damage after an angry outburst from the president.