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Bad Deals

by Joe Markowitz
March 2015

Mediation's Place by Joe Markowitz

Joe Markowitz

Israeli Prime Minister Benjamin Netanyahu's speech to Congress March 3rd 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, Netanyahu refuses to accept the idea that we have to choose between what he called a "bad deal" and no deal at all. 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, no deal at all 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.

The Prime Minister suggested that we are not limited to these two unpalatable choices, and that instead 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, 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.

Biography


Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own.  In addition to general commercial litigation, Mr. Markowitz has expertise in  intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation.  Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in  the Central District of California, as well as private mediations.  He has served since 2010 as a board member of the Southern California Mediation Association.   



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