The Art of War, Litigation and Mediation

Twenty-five centuries ago, during the reign of Ho Lu, the King of Wu, an extraordinary philosopher and general named Sun Tzu wrote of tactics, terrain, and maneuvering in The Art of War. Observing the precepts of this great work, and under the generalship of Sun Tzu, the armies of Wu prevailed for decades over their ancestral enemies, the Kingdoms of Yueh and Ch'u. More than two millennia thereafter, Napoleon is reputed to have waged his successful campaigns in Europe with Sun Tzu's book in hand, only to fall to defeat when he failed to follow the principles of The Art of War.

RELEVANCE

Today, this ancient and poetic treatise remains the object of study by military commanders world-wide. General Schwarzkopf may not acknowledge Sun Tzu as the inspiration behind the military operation he lead in the Gulf War; however, the tactics he employed, which so emphasized surveillance, communications, mobility, and deception, appear directly drawn from The Art of War.

Sun Tzu's writings, like those of Machiavelli, are essentially devoid of concerns with ethics and morality. Ever the zealous advocate, for Sun Tzu, the self-interests of the king and country he served were of paramount importance, and he warmly embraced deceit and treachery as legitimate means of achieving the ends of the Kingdom of Wu. Thus, some may dismiss Sun Tzu as a poor model for the modern-day lawyer, who is already the object of public scorn for allegedly having a poor grasp of basic ethics.

To do so, however, would be to miss the truths Sun Tzu recognized, which stand no matter how noble or base the cause. The most important of these is: "[T]he true object of war is peace."

As Sun Tzu explained: "In all history, there is no instance of a country having benefited from prolonged warfare. Only one who knows the disastrous effects of a long war can realize the supreme importance of rapidly bringing it to a close. It is only one who is thoroughly acquainted with the evils of war who can thoroughly understand the profitable way of carrying it on."

The same insight obviously applies in litigation as we practice it in the United States today. Many believe that courteous lawyering has passed into history. Clearly, a large percentage of litigators now make it their practice to engage in tactics which are designed to prolong litigation, and impose needless burdens and expenses on their adversaries in the hope that their foes will ultimately be forced to capitulate. What such litigators seemingly fail to appreciate is that they may not pursue such a campaign of attrition without bloodying themselves and their clients in the process. In the end, everyone loses; no one emerges victorious.

GOOD LAWYERING

Such litigation practices are, in fact, the product of poor lawyering. As Sun Tzu wrote: "To fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy's resistance without fighting."

But how does one break the will of one's adversary to litigate without litigating? The answer, according to Sun Tzu, lies in making careful calculations prior to commencing litigation which assure victory.

"The general who wins a battle makes many calculations in his temple before the battle is fought. The general who loses a battle makes but few calculations beforehand. Thus do many calculations lead to victory, and few calculations to defeat; how much more no calculation at all! It is by attention to this point that I can foresee who is likely to win or lose."

This may appear as an admonition to be smart — but guidance many of us may be constrained from observing by genetics. What Sun Tzu is really saying, however, is to fully use the intelligence one has to carefully think through the strategies one intends to apply to bring about victory as quickly and painlessly as possible. One must resist the temptation to mindlessly implement the same tactics one has regularly employed in the past. Always ask, where the opponent's vulnerable points lie, and how one may fully exploit them within the limits of the ethics and mores of our profession and society. Sun Tzu concededly would not have added this qualification. One's goal should be to elevate oneself to the status of the "victorious strategist," who Sun Tzu describes as follows: "Thus it is that in war the victorious strategist only seeks battle after the victory has been won, whereas he who is destined to defeat first fights and afterward looks for victory."

At the same time, one must accept without shame that sometimes, no matter how carefully are laid schemes, a case cannot be won. The terrain (facts) may not be as the "spies" reported; the gods (judges) may throw thunderbolts (adverse rulings) at one's advancing army; or one may find the army swept up by an unanticipated flood (change of law). Nevertheless, one may still look oneself in the mirror with the knowledge that Sun Tzu perceived, "[t]he general who...retreats without fearing disgrace, whose only thought is to protect his country and do good service for his sovereign, [is] the jewel of the kingdom."

One may take solace as well in the knowledge that Sun Tzu held disdain for the general who carries forward with a battle in the vain hope that he or she may bluff his or her way to victory. "To begin by bluster, but afterward to take fright at the enemy's numbers, shows a supreme lack of intelligence."

Hence, it is that disgrace lies not in petitioning for an armistice to avoid annihilation, but rather in continuing the bloodletting of a battle beyond the point that it has been won or lost. Good lawyers, like good generals, always know when that moment has arrived. It is at that juncture, and no later, that mediation should be pursued as the best and most promising way to bring an end to hostilities.

If one is fortunate enough to hold the upper hand, it is then that one stands the best chance of achieving excellence by persuading the opponent to abandon the struggle and strike an advantageous treaty. If, on the other hand, one is embroiled in a futile crusade, one may still snatch victory from the jaws of defeat by addressing anew how success is defined. As Sun Tzu noted: "In the wise leader's plans, considerations of advantage and of disadvantage will be blended together. If our expectation of advantage be tempered in this way, we may succeed in accomplishing the essential part of our schemes."

This is not to say that the only time mediation may be beneficially pursued is after the outcome of the litigation has become certain. Indeed, the very uncertainty of its outcome may offer the best hope of convincing the adversary to compromise now rather than risk total defeat. Under no circumstances, however, should one undertake mediation before one is prepared to show his or her hand; for it is only by explaining to the "enemy" how expertly one has plotted his or her demise that one may hope to achieve victory without further fighting. Beware the intrigue of the adversary who has read The Art of War and, on Sun Tzu's counsel, seeks mediation as a ruse to discover your battle plans.

"Scheme so as to discover his plans and the likelihood of their success. Rouse him, and learn the principle of his activity or inactivity. Force him to reveal himself, so as to find out his vulnerable spots. Carefully compare the opposing army with your own, so that you may know where strength is superabundant and where it is deficient."

Still, do not without reason evade mediation. If one has performed calculations in advance, there is nothing to fear. Be ever vigilant for omens that the adversary too has come to recognize that the "true object of war is peace." How does one know peace is offered? According to Sun Tzu: "[W]hen envoys are sent with compliments in their mouths, it is a sign that the enemy wishes for a truce."