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<xTITLE>Words To Avoid</xTITLE>

Words To Avoid

by Joe Markowitz
October 2010

From Joe Markowitz's Mediation's Place Blog

Joe Markowitz
In a caucus with the plaintiff's attorney and his counsel, we were trying to persuade the plaintiff to lower his settlement demand.  Plaintiff's attorney started telling his client that he had to compromise.  As soon as he said that, I saw the client visibly flinch.  This client had no interest in compromise.  Instead he was interested in greater recognition on the defendant's part of the debt that was owed.  I told him he didn't have to settle the case at all that day, and should probably take some more time to think about his options.  I was still hoping we would settle the case that day, but I could also see that this person was not about to be browbeaten into an agreement.  As a result, I think I gained a measure of trust. 

People instinctively resist the idea of compromise.  They want what they believe they are entitled to.  They want justice.  If I as mediator suggest to people that they can't have what they want or deserve, or that they should simply back down on a matter they feel strongly about, they are naturally going to resist. Therefore, instead of telling litigants that they have to compromise, I prefer to tell them that I am trying to get a better result for them than they could obtain by taking their lawsuit to its conclusion.  I help them understand the costs and risks of pursuing their claims to trial, so that they can see that settlement may actually represent a victory. 

We see the same resistance to compromise in politics.  Many Democrats are said to be disillusioned because their leaders watered down their health care and other reform proposals too much.   They would have rather seen the administration fight harder, instead of working so hard to get agreement with the other side.  At the same time, Republican stalwarts have no stomach for compromise either.  Representative Mike Pence told an interviewer recently that "there will be no compromise on stopping Democrats from growing government and raising taxes. And if I haven’t been clear enough yet, let me say again. No compromise. . . . The time to go along and get along is over."

This kind of talk is disheartening to mediators, who know that we never accomplish anything without some give and take.  It seems doubtful that politicians can accomplish much either without making some accommodations to the opposition.  Yet we have to recognize that partisans in public debate, or in private disputes, should not be expected to give in on matters of principle.  They need to either impose their will on the other side, or reach an agreement that can be interpreted as a victory.  For example, in the book Beyond Reason, there is a chapter on how a border dispute between Ecuador and Peru was resolved in an ingenious way, giving one country political sovereignty over the disputed area, and the other country property rights.  In that way, both sides were able to claim victory. 

Agreements that are cast as compromises are more likely to fall apart.  The Compromise of 1850 only held off the Civil War for a few years.  The Korean Armistice created an uneasy peace that has left fundamental issues unresolved.  Some private agreements also merely set the stage for future disputes, or leave participants feeling dissatisfied.  Telling people that they have to compromise may cause them to walk out of the negotiations, or lead to an agreement that they feel was imposed on them unfairly.  I think it is generally better to help both sides win the negotiation, and obtain an agreement that they can feel good about.


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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