Mixed Signals

Last week it was revealed that movie producer Harvey Weinstein has a long history of accusations of sexual harassment. His namesake company fired him. In response, Weinstein composed an apology letter, in which he promised to “conquer my demons” and make amends to people he has harmed. At the same time, however, Weinstein threatened to sue the New York Times over the accuracy of the original story reporting his transgressions. Does that action call into question the sincerity of his apology? Does it help or hinder Weinstein’s claimed commitment to resolve this issue?

Secretary of State Tillerson revealed recently that the US has various back channels of communication with North Korea, and that we are pursuing negotiations with that country to resolve the dispute over North Korea’s development of nuclear weapons. At the same time, President Trump is threatening all-out war with North Korea, and publicly announced that Tillerson was wasting his timetalking to representatives of that country. Is this a calculated strategy of sending mixed messages to North Korea, or simply an example of dysfunction in the Trump administration?

I’ve been using this website to develop the theory that since most contested disputes end in negotiated resolution, we ought to encourage a more cooperative, and less adversarial, way of reaching that result. Since mediation and negotiation have become a predominant way of resolving disputes, those methods should be applied more broadly to reform the whole system. My experience teaches me that the adversarial process often exacerbates rather than resolves conflict, like using gasoline to put out a fire. Litigation pulls people apart instead of bringing them together. When we try to bring them back together via a negotiated resolution, parties have to “unlearn” the tactics they have so far been using unsuccessfully to resolve the dispute. That experience suggests that we should try to reduce the fighting that leads up to the negotiation stage. I’m not sure, however, that there is any empirical evidence to support that theory. In other words, though I’ve seen disputes resolved using cooperative techniques more quickly and efficiently than with protracted litigation, I can’t say for sure that replacing our adversarial model entirely with a different model would result in a net gain in efficiency.

What I see in my law practice and in the news instead tells me that the idea of cooperative rather than adversarial resolution of conflict does not come naturally to people. It may even go against human nature. Parties in conflict naturally want to attack or defend, rather than try to understand where the other side is coming from. Not only are such reactions natural–they arise from the oldest and most ingrained parts of our brain–they may also be helpful at times in resolving a dispute. Sometimes you might have to fight fire with fire. It may be that people generally cannot avoid going through a contentious phase of dispute resolution before they are willing to try a more cooperative style. It may also be necessary for parties involved in conflict to send a mixed message to their adversary: the message being that although I am willing to negotiate, I am also prepared to fight. That message is often necessary to bring the other party to the bargaining table.

error: ADR Times content is protected!