I did a piece this week on my political blog, discussing, as many others have, Newt Gingrich's recent inconsistent statements on our policy toward Libya. One week he was for all for establishing a no fly zone and getting rid of Qaddafi, the next week he said the US should not have intervened. Some accused Gingrich of flip-flopping. I do not. What I accuse him of is reflexively setting himself against everything President Obama is for, and for everything the President is against. Since we hung back several weeks before intervening militarily in Libya, Gingrich attacked the administration for that. Once we intervened, Gingrich attacked the administration for that. I'm sure some of Newt Gingrich's supporters prefer this stance of unrelenting opposition, but I have to think a lot of voters looking for a more coherent, logical approach, must be turned off by it.
This behavior strikes me as similar to the posturing that parties in conflict often adopt. Often there is such suspicion and distrust between parties to a dispute that they reflexively oppose anything and everything the other side suggests. Often for tactical reasons, parties believe it advantageous to contradict or oppose anything said or done by the other side. When parties are sent to mediation, they often continue these tactics. They don't really listen to what the other side is saying, instead just waiting their turn to say their piece. They are distrustful of everything proposed by the other side, constantly questioning their motives, attacking their veracity, and finding flaws in their positions.
I want to raise the question whether that is even a good way to litigate. Is it advantageous to fight over everything, or is it better to choose your battles? Does it help your own credibility to question everything the other side says, or is it better to limit points of disagreement to areas where there are real substantive differences? One "advantage" of a strategy of unremitting hostility toward the other side is that it drives up the cost of resolving the dispute, which sometimes pushes a case toward resolution. Generally, however, such a siege strategy imposes unacceptable costs on both sides. There are also some tactical reasons why a trial lawyer might not want to concede too much, or appear too accommodating to the other side, even on points their side is likely to lose. Sometimes it might be a good idea to take a few unreasonable positions, so that you are more likely to win the important ones. In mediation, there is also a respectable strategy, backed up by research, called anchoring, which suggests that parties taking extreme or unreasonable positions are more likely to obtain a deal favorable to their own side.
On the other hand, a policy of knee jerk opposition to the other side, in addition to driving up the costs of resolving the dispute, also may make it harder to get the dispute resolved at all. Unrelenting opposition creates negative energy; it exacerbates hostility; it provides the other side with additional reasons to oppose your suggestions. Trying to understand and appreciate the other side's position creates positive energy; it encourages the other side to respond reciprocally; it provides incentives for reaching additional areas of agreement.
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.