For as long as I have been teaching, yet never when practicing law, I have pondered and lamented over the “5 to 4 Decisions of The Court.” We want to believe judges remove their personal feelings, emotions, proclivities and biases before donning the robes. We, as rational decision-makers, have the capacity to separate our emotions and arrive at rational choices. Yet, doing so is a constant battle within. It often leads to a governing majority or a philosophical majority resulting in the 5 to 4 split – WMU-Cooley Center for the Study and Resolution of Conflict Director Graham Ward
It leaves the law as certain as the life span of a single justice. It causes an uncomfortable uncertainty in predicting laws when the next case arrives for decision. It is a hindrance to those who attempt providing advice regarding long-term policy decisions. It polarizes the Court and generates social, economic and cultural conflict within the citizenry.
Can we propose either a better model or promote an understanding of the inherent value of the unanimous decision?
Judges on our Supreme Court do have the capacity to act as would the conservative, strict-constructionist might encourage, by narrowing the question presented to that upon which most, if not all can agree? Should the Court take those cases where a greater potential exists for that 5-4 vote rather than 9-0 or 8-1?
Two examples of effective use of a mandated unanimous decision – one quite old and the other in use today.
First, a gift from The Roman Republic. The executive during that 500 year effort was composed of two counsel. Elected from the Senate and by the Senate, for a one year term, seldom extended for a second and hardly ever consecutively. A no vote of a counsel always overruled the yes of the other. The only exception was when they were on campaign and then the decider rotated from one day to the next. (Hannibal famously used his knowledge of that practice to present his army on a day when the impetuous counsel was in charge). It generated a status quo as well as supported change by insuring no minority report when both agreed to something new. With very few exceptions a consistency and collegial commitment was preserved.
Second, a two person arbitration with the mandated unanimous decision. Arbitration is becoming a favored approach to conflict resolution either by voluntary choice of the parties or broadened enforcement of arbitration clauses by the courts. Often these processes are conducted by a three person panel and with each party choosing their arbitrator and the third selected in a number of agreed upon ways. When a party chooses their arbitrator, it is often the case the arbitrator becomes an advocate in the decisional forum as does that of the other party. The neutral/third arbitrator can, and often is, in the uncomfortable position of looking for a resolution within a range of potential agreement, to generate a unanimous decision. These advocate/arbitrators often will not agree and generate that unanimous decision. A unanimous decision is good in that it is harder for either party to argue they all got it wrong, including the arbitrator they selected. The decision is more likely to be complied with and where orders of the Court are not needed to insure enforcement.
Advocate arbitrators often force the neutral to threaten “baseball arbitration.”
In such a case the frustrated neutral arbitrator will say, give me your best number (these are often in what we call distributive conflicts where the pie cannot be expanded or efforts to do so have been unsuccessful, unproductive) and I am going to choose one. That choice will make one party happy, though likely less so than they had hoped, and will disappoint the other. Agreeing to a two person arbitration with the decision required to be unanimous, mandates the arbitrators fashion a result which both sign. By definition it recognizes the need to resolve within the zone of potential agreement which a neutral would suggest, the zone, not the decision itself, and allows those two arbitrators to use their skill, knowledge and experience to generate the result.
Is this something for learned, experienced attorneys to suggest when they have intransigent clients? When one client or both feel they are in that reasonable zone which their opponent is not? To generate a decision which as they know they are more right will be in their favor? Is it a way to avoid the potential loss of a “baseball arbitration” which can often be generated without their actual input? Is it a subtle or not so subtle unwritten, unspoken direction to the arbitrators to be reasonable when clients or even their attorneys might not so be? Could it produce the decision of the parties who, when confronted with the risk of being the looser in that “baseball arbitration,” often sharpen their pencils enough to get close enough to say “yes” and get together? Is it something which implicitly creates a workable high-low agreement?
This is one more tool in the tool belt, for a specialized need project and to help mold a workable resolution. It can also help encourage parties to recognize the value of creative thinking about processes which are all too often fixed in our minds by the power of inertia or adherence to a status quo.
How do you deal with conflict? How has it worked for you? I would like to hear your solutions at wardl@cooley.edu.
Blog author Graham Ward is WMU-Cooley’s director of the Center for the Study and Resolution of Conflict. The program teaches participants how to improve the way they deal with conflicts by using new, creative tools and modify existing ones, creating the “ultimate due process,” as well as better ways of “Getting to Yes.”
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