“Soft” and “Hard” Negotiations, part 2


Yesterday, President Trump had a contentious call with Prime Minister Turnbull of Australia, in which he questioned a deal made by the Obama administration for the United States to accept a number of refugees currently held in detention by Australia, indicating we might not honor it. Other government officials spent the day trying to smooth over the disruptive and aggressive conduct of our new president.

What is ironic is that Australia has long had a much tougher and more racist immigration policy than the US. We detain people claiming refugee status until their cases are determined, but Australia refuses to allow even people who have been deemed refugees to set foot on the mainland, so they remain in deplorable conditions in offshore camps. Trump has thus gratuitously insulted someone with whom he should be in sympathy on this issue, in fact someone who is taking a much harder line on immigration than the United States does.

The question then is whether negotiations should be handled in an adversarial way, even when you have two people with similar views trying to deal with a common problem. There would seem to be no obvious reason for doing this, so it might be a case where the president is conditioned to react in a hostile and threatening manner even when that style might be counter-productive to reaching a resolution of the issue. Some litigators tend to handle every case in an aggressive way, simply because that is what they have been trained to do. Or as the saying goes, if the only tool you have is a hammer, every problem starts to look like a nail.

Whether President Trump finds it necessary or appropriate to moderate his aggressive style remains to be seen. If he doesn’t, then we can expect to see more of what we saw today, which required others to move in and clean up the damage after an angry outburst from the president.


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Joe Markowitz
Joe Markowitz has practiced commercial litigation for more than 30 years, both in New York City and Los Angeles, and has served as a mediator for more than fifteen years. He is a member of the Mediation Panels in both the District Court and Bankruptcy Court in the Central District of California. He is currently the president-elect of the Southern California Mediation Association.

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