Originally published in the Wiley Online Library.
In Getting Disputes Resolved (Ury, Brett, and Goldberg 1988), we pointed out that in seeking to resolve a dispute the parties can focus on interests (what they want or care about), rights (independent standards with perceived legitimacy, such as law or contract), or power (the capacity to force the other party to do something that it would not otherwise do.) A negotiator’s focus may change in the course of attempting to resolve a dispute, beginning perhaps with a rights-based assertion that his/her position is likely to prevail if the matter goes to court or arbitration, switching to power-based threats of retaliation if the rights-based argument is unsuccessful, and ultimately making a settlement proposal that is intended to satisfy the interests of both parties. Most negotiators, however, have a preferred approach to dispute resolution, one with which they are most comfortable and which can be said to characterize their negotiating style.
There can be little doubt that the focus of President Donald Trump’s approach to the resolution of conflict is to rely on power to force the other party to accede to his demands. Typically, his reliance on power consists of threatening to take harmful action against the other party if the latter does not accede to his demands. In his dealings with North Korean ruler Kim Jong Un leading to their June 2018 meeting in Shanghai, for example, Trump warned that if North Korea continued its tests of long-range missiles and nuclear warheads, it would be met with “fire and fury like the world has never seen” (Baker and Sang-Hun 2017). On the domestic front, Trump threatened to shut down the U.S. government if Congress did not provide funding for his proposed Mexican border wall (Rogers and Fandos 2018). On occasion, when his threats of retaliation have been unavailing, Trump has actually carried them out, for example imposing tariffs on Chinese imports in response to China’s refusal to cease allegedly unfair trade practices (Swanson 2018b). Indeed, it was in this context that Trump most clearly articulated his view that the use of power is his preferred mode of dispute resolution, stating, “Trade wars are good and easy to win” (Swanson 2018a).
This is not to say that Trump is unaware of the interests of other parties, or that he ignores those interests in his efforts to obtain an agreement. Trump implicitly recognized Kim’s interest in being recognized as an equal to the president of the United States, and sought to satisfy that interest by surrounding their June 2018 meeting with pomp and circumstance (Editorial Board of The New York Times 2018).
In sum, however, Donald Trump’s primary approach to the resolution of conflict is to focus on what he sees as his (or the United States’) power advantage over the party with whom he is dealing, and to rely on that presumed power advantage to force the other party to agree to his terms.
Trump’s Impact on Disputants’ Behavior in Third-Party Procedures
The two central types of third-party dispute resolution procedures are (1) mediation, in which the role of the third party is to assist the disputing parties to negotiate their own agreement, and in which the third party has no authority to impose a resolution; and (2) arbitration, which is similar to court in that the question before the third-party decision maker is which of the disputants is “right,” based on an external standard such as law or a contract, and in which the third party’s decision is binding.
It is not uncommon in dispute resolution negotiation or mediation for a party to rely on power, such as threats of harmful action, to influence the other party to accede to its demands. Indeed, I have mediated disputes in which each party’s settlement efforts consisted primarily of threats of reprisal if the other party did not do what it demanded. I doubt, however, whether Donald Trump’s use of such power tactics will increase the frequency with which other disputants use them.
It is my view, based on more than fifty years’ experience in dealing with disputing parties as both a mediator and an arbitrator, that the approach of disputants to resolution is primarily a function of personality, prior experience, and the example of those with whom the disputant regularly interacts. It is unlikely that a person who, based on these powerful influences, has habitually taken an interest-based approach to dispute resolution in negotiation or mediation, would switch to a power-based approach because he/she is aware that the president of the United States is doing so. President Barack Obama was an interest-based negotiator, but in my mediator capacity, I was unaware of any uptick in the use of interest-based negotiation by disputants with whom I worked during the Obama presidency. I am doubtful that the dispute resolution approach of any U.S. president, a far-away figure with whom few disputants can identify, will have a significant effect on the approach of disputants in negotiation or mediation.
As for disputants in arbitration or court, in which the third party’s decision is based on rights criteria, not on which party is more powerful, Trump’s reliance on a power-based approach should have no discernable impact on disputants’ behavior. Because power-based arguments are irrelevant to the decision of judges and arbitrators, disputants have no reason to rely on such arguments, even if Trump habitually does so in seeking to resolve disputes.
One element of Trump’s power-based approach to the resolution of conflict, however, may have an effect on disputants’ behavior. Donald Trump has not been reluctant to use the power of his presidency to attack the legitimacy of courts that have ruled against the administration’s position. After a U.S. district judge in California rejected the administration’s position in a case involving the Deferred Action for Childhood Arrivals (DACA) program, for example, Trump criticized the judge’s ruling, not merely as wrong, but as showing that the federal court system is “broken and unfair” (Cowan and Rosenberg 2018). In commenting on another case, Trump said, “what’s going on in the [U.S. Court of Appeals for the] Ninth Circuit is a shame” (Westwood 2017).
Nor has Trump been reluctant to attack the integrity of judges who have presided over cases in which he has been personally involved. In the Trump University class action fraud case, he repeatedly suggested that the federal judge hearing the case was Mexican (which was untrue), and that the judge was biased against him for that reason (Kendall 2016). One might reasonably anticipate that private disputants, particularly those with substantial political or financial power, will be tempted to use their power, as has Trump, in an effort to influence the courts. Indeed, the frequency of disputant attacks on the legitimacy of courts may be one of the enduring legacies of the Trump presidency.
The Impact of Trump’s Approach to Dispute Resolution on Third-Party Neutrals
There is certainly a risk that Donald Trump’s willingness to attack judges and courts that he views as unfavorable to his positions will encourage similar attacks by other powerful disputants on judges and courts. Whether or not such attacks will influence judges’ decisions is impossible to know, but the risk is certainly present, especially for those judges who, unlike federal judges, are elected, rather than appointed for life.
It is less likely that the Trump approach to dispute resolution will affect mediator behavior. Inasmuch as the outcome of mediation is either no agreement or an agreement between the parties, not a decision by the mediator, an attack on the mediator by a powerful party, based on the outcome of a mediation, is unlikely. To the contrary, the more powerful party is likely to use that power to force the other party to agree to its demands, rather than to attack the mediator.
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