History of Warfare, Litigation, and the Mediation Bonus

Litigation, including arbitration, is not far removed from warfare as illustrated by Napoleon’s invasion of Russia 200 years ago. The general idea is to intimidate your adversary to accept terms and conditions that will protect your interests, with little or no concern for your adversary’s interests. In litigation the terms and conditions are distilled in a settlement agreement and in warfare in a peace treaty. In litigation a letter of demand is issued while in warfare an ultimatum is issued. Both are threats to intimidate and dictate the terms of surrender. Unsurprisingly lawyers sometimes talk about attending war rooms to prepare them for litigation.

In 1812, Napoleon won the apocalyptic Battle of Borodino 96 km from Moscow, but lost the war after overstretched supply lines and the looming winter forced him to make a catastrophic retreat from Russia. The humiliation of defeat ensured that the Russians would exact more than the usual bloodletting on the retreating French army.

The most famous account of the battle can be found in Tolstoy’s novel War and Peace: “Several tens of thousands of people lay dead in different positions and uniforms in the fields and meadows. An acre of land and grass was saturated in blood at spots where the infirmaries stood. Crowds of wounded and healthy people from different troops, with terrified faces, from one side staggered back toward Mozhaisk, from the other side back toward Valuyev. Other crowds, tortured and hungry, walked forward to carry out the orders of their commanders. The third group stood at their places and continued to shoot.”

It was never Napoleon’s intention to invade Russia. Invading such a vast country would be folly and Napoleon had become a good friend of Alexander, Tsar of Russia after the signing of the Treaty of Tilsit in 1807. Napoleon wrote, “If Alexander were a woman I would make him my mistress.” And Alexander wrote about Napoleon: “I love nothing more than I do this man. The magical power of his look and the smile from the soul that he has on his lips and in his eyes, completely turned me around. The great man of the century, the formidable Captain, is amiable, affectionate, and magnanimous. He is persuasive because he is sincere.”

Their love affair would, however, not survive their divergent national interests, and the absence of mediation to explore alternative means to address such interests.

Under the terms of the Treaty of Tilsit France and Russia had divided Europe between them. One of the terms of the Treaty was that Russia would cease trading with England. The trade embargo of England however did not serve Russia’s interests and Alexander ignored signs that Russian merchants were continuing to trade with England. Napoleon was incensed by what he described as treachery and amassed an army of 400 000 near Russia’s borders.

The purpose behind this show of power was to intimidate Alexander into seeking a settlement through negotiation, and if this failed Napoleon intended to defeat the Russian army at a decisive battle near the Russian border – also intended to intimidate Alexander to negotiate a settlement on Napoleon’s terms. Intimidation had worked before and Napoleon had no reason to believe it would not work again.

Napoleon miscalculated however that the Russian army would stand its ground near the border to offer him the opportunity for a decisive victory. But the Russians were so afraid of Napoleon that they fled when he crossed the river Niemen on 23 June 1812. The lure of a decisive battle spurred Napoleon to drive ever deeper into Russia – and by the time the Russians gave him his opportunity for a decisive battle at the village of Borodino – his supply lines were overstretched, his army too exhausted for a decisive victory. The die had been cast for Napoleon’s humiliating and devastating retreat from Russia.

In litigation the international trend is that more than 90% of cases are settled out of court through negotiations. Litigators generally follow Napoleon’s dispute resolution strategy to intimidate the other party to negotiate a settlement. In most cases the settlement occurs on the steps of the court.

While it is fair to say that in litigation, disputes are generally resolved through a show of force, it may sometimes be the only way to bring the other party to the negotiating table. But companies and individuals who litigate (or arbitrate) without first attempting joint problem solving through mediation, may rue their own Borodino moment one day.

Mediation is of course also available after the parties have commenced with litigation, even if it is more desirable to take place before the litigation process defines and entrenches positions.

Mediation is a structured process geared firstly to remove barriers to a settlement, secondly to identify the interests the parties wish to advance, and thirdly to explore different means to address those interests. The potential of mediation emerges when the parties realise there are means to advance their respective interests without unduly prejudicing the other party. It is indeed possible to settle disputes without planting seeds (resentment & humiliation) for future conflict between the parties.

Alexander was a proponent of mediation between monarchs and nations. A skilled mediator may have helped him and Napoleon explore alternative (less humiliating) means to address their interests. In doing so they would have been in control of the outcome and not subject to the inherent vagaries of war – that applies to litigation as well.

The mediation bonus (value) is dispute avoidance by mitigating the risk of disputes being reignited.

In an era of social media in which the reputational costs of disputes are incalculable, and in which the civil justice system has generally priced itself out of reach of many, this is a valuable bonus to be considered by companies and individuals.

(Source for historical data: Cape Times of 7 September 2012 and Wikipedia)

                        author

Jacques Joubert

Jacques Joubert is a practicing mediator and independent mediation analyst in South Africa. He practiced law in South Africa and Canada, but now specializes in alternative dispute resolution.  MORE >

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