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by Joe Markowitz
February 2014

Mediation's Place by Joe Markowitz

Joe Markowitz

One of the plot lines of the new season of House of Cards (I'll confess I've spent a good deal of President's Day weekend binge-watching it), depicts a trade negotiation between the US and the Chinese that abounds in confusion and double-crossing. On the American side, the negotiator is our anti-hero, the new vice-president Frank Underwood, who repeatedly misrepresents to the President what his Chinese counterpart told him. On the other side, Xander Feng is a shady businessman who might--we are never sure--be speaking for the Chinese government or only for a faction trying to change government policy. Or he might be put away after a corruption trial.

While exaggerated, this depiction of international diplomacy has its roots in reality. I heard a talk the other day about the history of negotiations between the US and Iran over Iran's nuclear program. Those negotiations broke down a number of times over the past 10 years, in part because the negotiators for each side did not always have the full backing of their respective governments. Even now, when the latest round of negotiations finally seems to be bearing fruit, forces back home in each country are second-guessing and some are even trying to derail the initial agreement. Questions are also being raised about whether the negotiators have accurately represented to the home front the concessions the other side has made so far.

In such difficult negotiations between long-standing adversaries, the many levels of distrust that must be overcome before an agreement can be reached can actually be increased when agents and principals and their broader constituents do not accurately communicate or understand what is being discussed. Faithless agents sometimes sabotage negotiations, while principals who withdraw authority the agents thought they had, also have the power to kill potential deals.

These pitfalls highlight the need for greater transparency: all the necessary parties should participate in some fashion in negotiations, or at least understand accurately what has taken place and why. These examples of failed negotiations also raise the question of what role mediators can play in keeping negotiators honest. Had there been a mediator in the room when Frank Underwood and Xander Feng were making statements somewhat at odds with what they were telling their principals, perhaps the negotiations would have stayed on track.


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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