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Negotiation and the court room

Litigation is defined as the process of resolving disputes in court. The respective governments and those on the opposing sides in each of these cases all agree on CO2 emmision reduction. This paper is not about advocacy in this sense of just attempting to persuade a Judge of a position.

 


 

Introduction

This paper will discuss how two principles of negotiation theory play a role in both policy making and litigation.  Utilizing the example of the global initiative towards climate change reduction it will become evident that these same principles have played a significant contribution to policy making and can be similarly viewed as having promising effects towards litigation.   The paper will briefly examine the work by Tanya Alfredson, John Hopkins Negotiation theory and practice, supporting the idea negotiation theory is important at every stage of public policy making.  The paper will then utilize the work of Thomas-Kilmann: Negotiations: making it easy, to support the argument that negotiation theory is an important consideration for litigators.  In support of this assertion two court cases that of Urgenda, in the Netherlands and Mahur, a Canadian case will be examined.  It will be asserted that when the case of Mathur is heard on its merits, litigators ‘ought’ to apply principles of negotiation theory in support of their arguments of infringements on the Charter of Rights and Freedoms (here after referred to as the Charter).   In conclusion is will be apparent that negotiation theory may offer insights that have a positive impact on litigation in general.

 

 

In the global context, international relations can apply negotiation theory to collaborative agreements regarding policy making, such as international conventions and accords.  Principles of negotiation theory such as searching for a common ground to assist in communication and effective strategizing all play a role.   According to Tanya Alfredson, John Hopkins, in their paper Negotiation theory and practice, negotiations are only “possible through communication. Fisher and Ury maintain that it is also a key interest for both sides in a negotiation. Good communication skills change attitudes, prevent or overcome deadlock and misunderstandings and help to improve relationships.”[1] Effective communication is complimented by the ability to identify commonalities between parties that can be used as foundations to build progressive talks.  Strategies can then be formulated in support positive outcomes.  This formula was utilized by the EU in support of collaborations among signatory states on issues of the environment. This in turn lead to progressive talks on the climate change reductions within the EU and beyond.  According to the work done on the Earth Charter, “founded by visionaries in the year 2000, we invite the visionaries of today to use the Earth Charter as a reference for decision-making and planning.” [2] It has no legal basis but with reference to this document the EU has and continues to negotiate among its signatories from a common ground, aiding in progressive talks towards climate change mitigation. Talks originated by basing negotiations on commonalities among nation states ideas by their respective cultures on issues of the environment. The mitigation of climate change due to CO2 emissions, as an evolving strategy for environmental protections, is one example that the EU was able to make significant strides in. By identifying commonalities among participants, it had the effect of opening communications that are central to formulating an effective future strategy towards an ultimate positive outcome of talks.  This strategy on climate change mitigation, was further bolstered by supportive science providing direction on how among signatory states would best agree on a path forward.  

 

Prevalent throughout the entire process, up until the adoption of legislation, is the importance of recognizing principles of negotiation theory.  Potentially, a model of negotiation theory could be drafted and based on the entire process.  "Negotiation is a central component of national policymaking.  One could conceptualize a model that recognizes the importance of negotiation theory and skills across the core phases - agenda setting, policy analysis, formulation, implementation, and evaluation - of the policy cycle. Clearly, however, negotiation weighs more prominently in consultations when policy agendas, options and instruments are being discussed and formulated.[3]  All negotiations have obstacles to overcome, and this is no different at the state or global level.  Once the issue is identified then “people must be separated from the problem. This means finding a way for solving a problem without getting distracted by personal elements and coming to an agreement in a manner that will preserve the relationship.”[4]  The EU, in overcoming these pitfalls, did achieve a consensus among its signatory states to reduce its global emission footprint.  This can be attributed to expanding upon commonalities between the nation’s states cultural norms and thereby eliminating central biases.   Further by reflecting upon certain cultural values systems of nation states allows respective leaders to gain the support of its citizens for the policies it implements.  Any climate change agenda that a nation implements must have support of its citizens, not unlike other globally recognized initiatives.  In this respect effective communication of the benefits of a policy are better supported by the citizens whom these nation states represent.  In this way people have confidence in their government and policies have a better chance of being implemented and sustained.

 

There have been different global initiatives towards climate change.  Under the United Nations Framework Convention on Climate Change (UNFCCC) was the Paris agreement. Following this lead, the “European Council has decided that the EU must achieve a reduction of greenhouse gas emissions of 20% by 2020, of at least 40% in 2030 and 80-95% in 2050, each relative to 1990. The European Council has decided that the EU must achieve a reduction of greenhouse gas emissions of 20% by 2020, of at least 40% in 2030 and 80-95% in 2050, each relative to 1990.”[5] These targets were set as the strategy in reaching a goal of not exceeding the 2 percent global warming target. Some member states have higher outputs of CO2 compared to others. As such the reduction targets for each member state are different. Supported by scientific data that was available to the EU, the strategy was to ultimately achieve a zero CO2 target by a certain date.  The data supported the conclusion that if such a strategy is not implemented and effective by these dates then the effects of industrial CO2 emissions on the earth may be irreversible.  It is this immediacy which further led to the support of the collaborative undertaking by the EU and other nation states throughout the world.

 

Historically, all member states had a commitment to protecting the environment pre-dating commitments to CO2 reduction targets being implemented.  The treaty on the functioning of the European Union or TFEU that describes the powers of the Union, includes a commitment to the environment.  According to “Article 191 TFEU contains the environmental objectives of the EU (cited in legal ground 2.53 of the judgment). To implement its environmental policy, the EU has established many directives, including the so-called 2003 ETS Directive (Directive 2003/87/EC), subsequently amended (see legal ground 2.58 ff. of the contested judgment).”[6] This general understanding was based on negotiations premised on the Earth Charters work led to the adoption of CO2 targets.   Problematically, when commitments are not kept by nation member states, litigation can ensue.  One example is the Netherlands who were found to have a higher CO2 output. Initially they agreed to one target later reducing it through their own legislative efforts.  In a sense, the agreement that emerged out of negotiations began to break down.

 

Urgenda, is an activist foundation, located in the Netherlands took it upon themselves to take their government to court over this amendment to legislation.  The entire argument was based on the claim that the Netherlands had an obligation to its citizens to protect them against climate change and by reducing they’re over all reduction targets placed them in danger.  “On 24 June 2015, the District Court of the Hague ruled the government must cut its greenhouse gas emissions by at least 25% by the end of 2020 (compared to 1990 levels). The ruling required the government to immediately take more effective action on climate change”[7]  According to arguments on behalf of Urgenda’ “up to 2011 the Netherlands had taken as a starting point its own formulated reduction target of 30% by end-2020. This was then reduced to an – EU-wide – reduction target of only 20% by end-2020, apparently due to tough political decision-making. However, the State failed to specify any scientific (climate science) arguments for this reduction. Meanwhile, the Paris Agreement has been established, in which the Netherlands has committed to achieve a reduction of greenhouse gas emissions to stay well below the 2° C limit for global warming. The Netherlands also expressed its intention to aim for a global warming limit of 1.5° C and called for a strengthening of reduction efforts up to 2020.”[8]  The idea is that the Dutch government has lowered its standards from a 30 percent to a 20 percent reduction, which is why Urgenda decided that they needed to act.  The entire argument was predicated that through the States lack of commitment that they have contravened Articles 2 and 8 of the ECHR.  Each member state is a signatory to the ECHR or European convention of Human rights. The novelty of the Urgenda case is that they argue that the inaction of the Dutch government to make a substantial commitment to reduction by 2020 they have contravened these two sections of the ECHR.   According to the convention “the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.”[9]  Essentially all members of the European union have an obligation of commitment to the ECHR.

 

Litigators carry principles of effective communication and strategizing into the judicial setting.  The applicants, Urgenda, effectively communicated their case persuading the court in the Hauge of their position. They utilized a well-developed strategy that was firmly founded in the law.  According to Thomas-Kilmann: Negotiations: Make it easy “to advance in law it is important to be able to negotiate well, and this starts with becoming aware of when you are negotiating and what you bring to the table when you negotiate, including the strategies you prefer and tend to overuse.”[10]  Thomas-Kilmann work is one of the rare legal scholarly works in support of applying negotiation theory to the court room setting.  For example, the lawyers on behalf of Urgenda did use skills of communication and strategizing in their presentation.  They made an appeal to the ECHR that effectively communicated to the court that the Netherlands had under section 2 and 8 a positive obligation to effectively increase its reduction targets.  A “good negotiator requires conscious selection of strategy and the proper use of it.”[11].   The court in the, Urgenda case, found that the “dispute between the parties focuses on the question if the State can be required to achieve a reduction of at least 25% relative to 1990 by end-2020.”[12]  A skilled litigator recognizes the importance of effective communication and strategizing but may not fully appreciated what negotiation theory has to offer in this regard.  It was just a 5 percent difference; that by 2020 the state aimed for 20 percent while Urgenda hoped for at least a 25 percent reduction.  Ultimately, the Court ruled in favor of the 25 percent reduction in favor of Urgenda. On appeal the ruling was upheld. The effects of a 5 percent difference are potentially huge, but it was made clear by the court that the state had a positive obligation under the ECHR with respect to the threat of climate change.  It was the first case of its kind, showing the world that litigation in the sphere of climate change was possible, and success depended upon proper preparation in the litigation process.

 

A coalition of citizens in Ontario, Canada is currently trying to achieve similar results.  The case is Mathur v Ontario (cite 2024 decision setting down for trial).  Similarly, the case is arguing against the most recent legislation the Ontario government attempts to reduce its goal for carbon emissions from a target that it initially set.  According to the pleadings “The Cap-and-Trade Cancellation Act (CTCA) was enacted by the province of Ontario in 2018. It repealed the Climate Change Mitigation and Low-Carbon Economy Act, which had established an emission reduction target of 37% below 2005 levels by 2030 in the province, and implemented a revised target of 30% below 2005 levels by 2030.”[13]  The actions of the province to reduce its target by 7 percent may have been what initially started the action but it is unknown if this was the igniting factor. The court further stated that “according to the unchallenged expert evidence filed that the application judge accepted, falls short of the international scientific consensus of the reductions recommended to mitigate the most catastrophic effects of climate change”[14]   It may very well have been initiated regardless of the reduction, but it gave the plaintiffs a more solid grounding for case.  The implementation of a target, coupled with the governments action to reduce its target provided argumentation that this 7 percent reduction could cause a section 7 and 15 Charter infringement.  The Ontario court of appeal found that this case was not about novel arguments in support of a positive right or obligation.[15] The applicants were asking or seeking for “an order declaring their Charter rights have been violated and requiring Ontario to set a science-based emissions reduction target and to revise its climate change plan in accordance with international standards.”[16] The issue before the court was whether the Ontario legislation by reducing the reduction of CO2 from its initial target thereby infringed on both sections 7 and 15 of the Charter.  Arguments for Mathur were against specific legislation and the court found that the application was not to be interpreted as seeking to enforce positive obligations on the Ontario government to protect its citizens from the effects of climate change.  Litigators on behalf of Mathur must take a different approach to the issue than those in Urgenda in this sense. 

 

The Charter and the ECHR are two entirely different sets of law, each imposing different obligations on respective governments.  One clear difference is that the Charter is not currently recognized as imposing a positive obligation on the government only a negative one for them to not interfere with individual Charter rights.  Although, the door is not entirely closed for future litigation where the Charter may impose a positive obligation on the government, but it would take a successful novel argument to achieve this.  In the case of Gosselin v Quebec 2002, where the concept of the Charter imposing positive rights being on government was discussed by the court as being a future possibility.  The case involved the differential treatment of social benefit recipients from different age groups who invoked both a sections 7 and 15 infringements.  With the focus being placed on the potential of section 7 invoking a positive obligation on government, according to the court the “appellant argues that the s. 7 right to security of the person includes the right to receive a particular level of social assistance from the state adequate to meet basic needs.  She argues that the state deprived her of this right by providing inadequate welfare benefits, in a way that violated the principles of fundamental justice.”[17] The argument criticized the overall welfare scheme in Quebec.  According to the sole dissenting Judge, L’Heureux-Dubé J, section 7 “does not grant a right to security of the person, full stop.  Rather, the right is protected only insofar as the claimant is deprived of the right to security of the person by the state, in a manner that is contrary to the principles of fundamental justice.  The nature of the required nexus between the right and a particular state action has evolved over time.”[18] So, no positive right to date is attached to section 7 but, according to the majority, they are not completely ruling it out for future arguments. A positive obligation being placed on the government may happen in the future.  According to the majority, “section 7 may be interpreted to include positive obligations.”[19]  Although it would be a novel argument, unfortunately, the courts did not specify any specific way that this may be achieved.   In Mathur it may be possible to advance a successful argument that government has this positive obligation, like the arguments advances in Urgenda, but it may be an uphill battle.  It seems that alternative strategies must be considered before the case is heard on its merits-some time in the not-too-distant future.

 

Litigators in Mathur ‘ought’ to utilize principles of negotiation theory in advancing their position in court.  In this way, negotiation theory is central to practicing litigation in the same fashion as it is to policy making.   First, a common grounding in the law must be advanced, according to “statesman and negotiator Henry Kissinger defined negotiation as, a process of combining conflicting positions into a common position, under a decision rule of unanimity” (Kissinger, 1969).”[20] A common grounding in the court setting can be thought of as an appeal to well established, rules principles or laws.  Litigators in Mahur will need to find a strong footing in their Charter arguments from which to argue their position.  By effectively communicating from a strong position, they can then strategies how to best formulate an effective argument in their favor.  In keeping with existing jurisprudence on the Charter, they might argue that the government has interfered with the rights of its citizens by reducing their target emissions.  This avoids having to fashion a novel argument that the Charter imposes a positive obligation on the government.  Similarities to negotiation theory can be drawn that in appealing to this common understanding, it grounds a strategy to create arguments that support how this reduction effectively infringed those rights.  Supporting how the applicants will be potentially negatively affected by the government’s actions.  This is just one suggestion on how the consideration of negotiation theory may apply in the court room setting.  This paper to too short to endeavor into an extensive critique of this topic but supports the idea of more work into the study.

 

 

Conclusion:

Negotiation theory can have a positive impact on successful litigation.  As in Mathur, the applicant’s council ought to consider negotiation theorizations on employing effective communications and strategizing.  For lawyers’ good communications skills and strategizing involves finding a common footing in the law with effective persuasion that is representative as principles of negotiation theory.  Lawyer’s must utilize these skills, as seen in Urgenda but may be doing so without fully appreciating what negotiation theory has to offer.  It is suggested that litigators in Mathur, must use a different approach than that in Urgenda and ought to view their argument through the lens of negotiation theory principles.  The developments of negotiation theory may offer them a different perspective; a focus on tactic’s that has shown to be effective for policy makers over the years.  From this perspective communication and strategizing skills seem to be more developed from the standpoint of negotiation theorists.  This seems to be supported by a lack of legal academic writing in this area of negotiation theory’s applicability to litigation.  Litigators may be able to adopt effective approaches from negotiation theory in presenting their arguments with more focus on better communication, strategizing, and avoid stress pitfalls that are inherent in the process.  This paper is too short to dive into a full picture on the benefits of negotiation theory application to the court room setting and supports further inquires into this examination through future study.

 

 

 

 

 

 


[1]Negotiation Theory and Practice A Review of the Literature Tanya Alfredson, John Hopkins University, Baltimore, Maryland, USA and Azeta Cungu, Agricultural Policy Support Service, Policy Assistance and Resource Mobilization Division, FAO, Rome, Italy, P 17 https://openknowledge.fao.org/server/api/core/bitstreams/4886e52a-fb86-4715-aac7-2a087b3da468/content

 

[3]  Negotiation Theory and Practice A Review of the Literature Tanya Alfredson, John Hopkins University, Baltimore, Maryland, USA and Azeta Cungu, Agricultural Policy Support Service, Policy Assistance and Resource Mobilization Division, FAO, Rome, Italy, P19 https://openknowledge.fao.org/server/api/core/bitstreams/4886e52a-fb86-4715-aac7-2a087b3da468/content

[4] Ibid P 4

[5] Ibid., P 3

[6] Ibid., P 7

[7] Ibid., P 7

[9] Convention on Huiman rights ECHR copy from original https://www.echr.coe.int/documents/d/echr/convention_ENG)

[11] Ibid., p 129

[12] Uganda case 2018 appeal P 13

[14] Ibid., para 2

[15]  The government argued a sec 21 motion that was struck down by Ontario court of appeal. They commented on the case sending it back down to be heard on its merits

[16] Ibid., para 3

[17] Gosselin v Quebec 2002 SCC para 75

[18] Ibid., para 209

[19] Ibid., para 82

[20] Negotiation Theory and Practice A Review of the Literature Tanya Alfredson, John Hopkins University, Baltimore, Maryland, USA and Azeta Cungu, Agricultural Policy Support Service, Policy Assistance and Resource Mobilization Division, FAO, Rome, Italy, P 6 https://openknowledge.fao.org/server/api/core/bitstreams/4886e52a-fb86-4715-aac7-2a087b3da468/content

 
 
 

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