This week’s parliamentary election results in Great Britain illustrate the complexities of three party negotiations. The last time elections resulted in a so-called “hung Parliament” was 1974, when the Conservatives failed to put together a deal with the Liberal Party to form a government. To a foreign observer, it is hard to understand why the Conservatives, who won this year’s election, cannot simply offer the Liberals some important ministries in exchange for their support, but British politicians, unlike say Israeli politicians, who are used to a real proportional representation system, seem to have little taste for making the sorts of deals necessary to cobble together a parliamentary majority. The British appear more comfortable with a winner-take-all system, both at the district level and the national level.
Neither the Conservative Party nor the Labour Party seem likely to agree to the Liberal Party’s demand to create a true proportional representation system in Britain. They both recognize that proportional representation would probably mean the end of the winner-take-all system forever, and all future governments would require coalitions. So the impasse continues this weekend. Perhaps it will be resolved by a temporary coalition agreement, with new elections scheduled within a relatively short period, in the hope of a more conclusive outcome. Or perhaps the British will have to adapt to a new era.
Litigation is often conceived as a winner-take-all system. Complicating that view in real life, the plaintiff’s side recognizes that it may achieve only a partial victory, depending on the size of the verdict. The defendant also rarely obtains a complete victory, since the cost of obtaining a defense verdict is generally very high. In two party mediations arising in the litigation context, the impulse to reach a settlement may arise from both parties’ desire to avoid the risk of an adverse winner-take-all result. But the outlines of potential settlement can still be plotted on a single distributive line between the extremes of possible results in only two dimensions. Three (or more) party mediations present qualitatively different problems. The existence of multiple claims creates additional conflicts, and sometimes impedes resolution of the main conflict. I am currently involved in a construction mediation, for example, in which we had to resolve a couple of subcontractor claims before the main dispute between the owner and the general contractor could be considered. I attended a seminar this week in which the instructor described a case involving the opposite situation, where the two main parties had reached an impasse, requiring the smaller parties to put together their own settlement proposal, otherwise they would be dragged along into protracted expensive litigation.
Increasingly we seem to live in a world that cannot be conceived in black and white, us vs. them terms. Instead we must get used to shifting coalitions of interests of different sizes and shapes, re-aligning in different ways on different issues. This is as true in international politics, with an increasing number of powerful players, as it is in national or local politics, as it is in private multi-party disputes. Such a world would seem to require more flexible and adaptive techniques for resolving disputes.
UPDATE (5/13/10): On my political blog I posted a comment on the surprisingly quick ability of the Conservative and Liberal Parties to form what appears to be a strong coalition agreement. Not only that, David Cameron, the new prime minister, is promising a new kind of politics:
“Where co-operation wins out over confrontation. Where compromise, give and take, reasonable, civilised, grown-up behaviour is not a sign of weakness but of strength.”
Music to a mediator’s ears, obviously.
UPDATE (5/22/2010): For a good discussion of the risks of settling with only some defendants in a multi-party dispute, citing a recent California Supreme Court case where the plaintiffs had to pay the non-settling defendant’s legal fees because they recovered less at trial than the amounts they had previously received in settlement from the other defendants, see this post on Michael Carbone’s blog.