Even in the course of the most hard-fought lawsuits, opportunities may arise for the parties to decide to stop fighting for a moment, and try to work out some problem or another together. Parties are encouraged to resolve discovery disputes cooperatively, for example, instead of fighting over every document request and deposition notice. Parties are also encouraged to resolve entire disputes through mediation rather than battling it out in court. To do that, we need to change the atmosphere from one of mutually assured destruction to one of cooperation. How do we do that?
Think about changing the atmosphere in politics, a field of endless, irresolvable conflict and argument. In 2008, candidate Obama talked a lot about transforming political conflict, in a way that sounded familiar to mediators. Yet, nearing the end of his first term, the atmosphere in Washington is more divisive and partisan and conflict-ridden than ever. In an interview with Charlie Rose earlier this week, President Obama reflected on his inability to achieve the kind of transformation he had hoped for:
"And, if you asked me what is the one thing that has frustrated me most over the last four years, it's not the hard work, it's not the enormity of the decisions, it's not the pace, it is that I haven't been able to change the atmosphere here in Washington to reflect the decency and common sense of ordinary people--Democrats, Republicans and independents--who I think just want to see their leadership solve problems. And there's enough blame to go around for that."
It would be understandable if President Obama had decided to give up trying to change the political dynamics of Washington. People might expect the president to say that Republican intransigence had taught him it was a waste of time to try to reach accommodation with his adversaries. Instead the president appears to be the last man who still believes, after all he's been through, in the dream of transcending red and blue states, putting aside excessive partisanship and divisiveness, and trying to work together constructively to solve problems in a way that serves common interests. It's also charming that the president still believes that that is what the people want also.
[T]he basic notion that we are not Democrats or Republicans first, we're Americans first, and that most of the problems that we face are solvable, not in some ideological way, but in a practical, common sense, American way, that I believe as much as ever. And I think so do the American people.
Call me naive, but I think the president is right. The institution of government people are most disgusted with is Congress, because Congress is where the most obvious signs of partisan wrangling and gridlock have exhibited themselves. President Obama, on the other hand, still enjoys pretty decent favorability ratings (especially considering the still sluggish state of the economy). President Obama enjoys that standing at least in part because people appreciate that he is still trying to work with all sides and serve common interests.
To change the atmosphere, what needs to change are perceptions of partisans of all stripes. The president's allies on the left need to appreciate the necessity of negotiation and compromise to pass legislation and to serve the interests of all constituents. The president's opponents on the right need to appreciate that the socialist ideologue they portray as their adversary is a figment of their imagination. They will get more accomplished in President Obama's next term by trying to work constructively with the other side, than they will by reflexively opposing everything the Democrats support. Changing these perceptions is a lot easier said than done because political partisans believe with some justification that they are locked into an ideological struggle over matters of the most sacred principles. That perpetual struggle is more important to a lot of people than getting things done.
In comparison, the changes in atmosphere needed to resolve most private disputes should be much easier to accomplish. Parties to a lawsuit need not sacrifice their principles to put the dispute behind them. They might only have to recognize that the trier of fact at trial might not see everything their way, and might even buy some parts of the other side's outlandish story. They also need to recognize that continuing to litigate the issue might cost more than the difference between the parties. Once everyone recognizes those realities, parties can start working together to solve a common problem, instead of just trying to achieve their aims at the other side's expense.