OF THE LAW SOCIETY OF SCOTLAND - The Journal Online

Sleeping with
the enemy
Journal
Opinion
Introducing the second of our regular columnists, Professor John Sturrock QC,
who argues we must look beyond conflict to a concept of “joint gain”
A century and a half ago Abraham Lincoln said: “The
only safe way to destroy your enemy is to make him
your friend”. Whether on a local or international level,
this seems easier said than done.“An eye for an eye and
we all go blind,” reflected Mahatma Gandhi. As lawyers,
can we preserve the vision shown by our predecessors
Lincoln and Gandhi?
Nelson Mandela once said: “I never sought to
undermine Mr de Klerk, for the practical reason that the
weaker he was, the weaker the negotiations process.To
make peace with an enemy one must work with that
enemy, and the enemy must become one’s partner.”
The history of Mandela’s application of this theory is the
recent history of South Africa. As the two sides to the
apartheid conflict came together, they realised that their
perceptions of each other were wrong. They came to
see that there was an alternative to a white victory or a
black victory – or even a split-the-difference
compromise.There was a future in which to win did not
mean that the other side had to lose. It was possible for
all sides to benefit. Hard work and difficult, yes, but much
less so than all-out bloody civil war.
According to William Ury, author of an inspiring book
“The Third Side:Why We Fight and How We Can Stop”
(Penguin), there is a growing realisation of our need to
be much more creative in our approach to conflict,
whether in personal relationships, in business and
commerce or in world politics. Ury identifies trends
throughout the world in which a transformation of the
culture of conflict is occurring, from coercion to consent
and from force to mutual interest.
I saw tangible evidence of this at the recent American
Bar Association conference on Dispute Resolution in
Seattle. There is a cultural wave sweeping through the
legal profession and government bodies in the US.The
lawyer’s job, as the Attorney General for Washington
State put it, is about solving average problems for
average people, not winning or losing – and
remembering that there are two sides to almost any
story.
Her own example was a remarkable one. The recent
mediated settlement of litigation brought collectively by
the various States against the tobacco industry resulted
in an “holistic” solution, viewed by parties as a mutually
satisfactory outcome. A rigorous approach to the issues
was accompanied by increased respect and
understanding on all sides, producing a speedy, wideranging
resolution of what could have been interminable
conflict.
In negotiation and mediation training courses, I often
invite participants to take part in The Gain Game, a
version of a game called The Prisoners’ Dilemma.
Participants learn how easily we become competitive
and seek to requite the other side for wrongs allegedly
done. Trust is easily broken, and once lost is hard to
regain. The urge to win at the expense of the other is
strong for many. Language (careful and careless) sends
messages which are easily misunderstood. Respect for
the other side is replaced by antagonism. Only at the
end do many discover that apparent victory can be
pyrrhic and bitter-sweet, producing a relatively poor
immediate outcome and an even poorer prospect of
successful negotiation in the future.
The perceptive players learn early (or through
experience) that working collaboratively with the other
side will often (nearly always) produce a better result,
not only for themselves and their client but also for the
other side. And it doesn’t matter if the other side also
gains! Indeed, that may be the key to getting what each
side really wants.
The concept of “joint gain” is often a difficult one to
grasp in our adversarial tradition. And yet, as Edward de
Bono has pointed out, argument which merely seeks to
prove that one side is right and the other side is wrong
can be extremely inefficient.Working co-operatively (or
in co-opetition as de Bono has described it) can
generate quite novel outcomes in many conflicts. Often,
however, we are constrained by our training and
education, by our culture and work pressures, from
thinking “out of the box”.
Business and commerce is moving on. Individuals are
less likely to accept things as they always were.The role
of the lawyer in society is under scrutiny. Paradoxically in
our rights-based culture, the future for many more
lawyers is likely to be in the role of creative problemsolvers,
or “solution-seekers”, assisting clients to achieve
co-operative results which meet real interests rather
than vindicating positions or rights. And we will find that
co-operation can be contagious. jgsturrock@aol.com
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19 May 2002 Volume 47 No 5