Tags: america | divided | polarization

Mending a Divided America With Alternative Dispute Resolution

Mending a Divided America With Alternative Dispute Resolution
U.S. President Donald Trump arrives to a "Make America Great" rally in Missoula, Montana, on October 18, 2018. (Nicholas Kamm/AFP/Getty Images)

By Friday, 19 October 2018 11:08 AM Current | Bio | Archive

In the wake of the turmoil surrounding the Kavanaugh confirmation, I was asked, as a lawyer practicing alternative dispute resolution, to take a step back from the noise and maneuvering and see if techniques used in finding solutions to civil disputes could be useful to bring some clarity to a divided America.

I was recently presented with exchanges of emails between highly educated Trump supporters and opponents from similar backgrounds and asked to use mediation know-how to help reach some form of understanding by asking hard questions. This can mean pushing sides to examine the logical consequences of what they stand for.

The divisions in America, already bad, got worse when in the space of a few hours the Democrats, Feinstein, Blumenthal, and company, sat in the chair of the accused instead of Judge Kavanaugh. The more bad stuff the Dems think they have against Donald Trump and supporters the more vulnerable they become.

Contradicting facts as expressed by Trump illustrates that you are a poor desperate ungrateful extremist.

This is a the New World, not of euclidian physics or quantum physics, but of Donald Trump politics, where the emotion surrounding the man takes center stage rather than a clear analysis of the issues.

In this context bringing the sides closer together is a daunting challenge because the most optimistic among us see the United States more seriously divided since at any time since the Civil War.

The following are questions put to the pro-Trump side because as a starting point there is a very simple and clear consensus of what they are saying. In the future, questions to the Democrats will be more difficult because other than their opposition to the president there is little consensus on what is their position.

The Trump supporter consensus is extracted from one of the emails: “Whatever I think of the President’s personal style matters little when compared with the good I believe he is accomplishing.”

And, “If the Liberals don’t like Donald Trump’s bad manners, meanness, and even think he’s in bad faith, these criticisms are insignificant compared to the war that needs to be won."

The tough questions are important because there is a need to clarify what is the Republican position, independent Trump New World politics:

1) If results count and personal behavior of the president doesn’t matter, should this mean as well that if it appears that crimes have been committed by a president, should this, would this, weigh in your continued support? If only results count, should Trump be immune not just from prosecution but electoral sanction if for example the Special Prosecutor provides concrete proof of collusion on the part of the campaign or of Donald Trump personally in Russian interference in the United States election? Would your answer change if the proof extended to the conclusion that it was the Russian interference that determined the election outcome?

And if evidence were considered by the Special Prosecutor to be sufficient to establish that there had been payment of non-declared campaign funds to silence women?

What if also we are provided with proof that the president committed tax fraud/evasion to the extent of hundreds of millions of dollars? In more general terms, would it be, should it be, more serious from an electoral standpoint, for someone who is the chief of state and the chief of government to steal from contractors, employees, creditors, and other third parties or to illegally deprive his own Treasury of the amounts in question?

2) Taking into account the strong belief of conservatives that it should be our duly elected representatives who make the law and not the courts, is it acceptable that the Supreme Court violates this principle and does interfere with legislation when the laws enacted are considered to be too liberal?

Notable examples are invalidating legislation passed by Congress to limit campaign financing.

In the same vein conservatives believe firmly in State’s rights, and in this sense have traditionally been opposed to federal interference with State legislation and also State court decisions. Should this principle not have been applied to the interference of the Supreme Court with the Florida State Court decision that ruled in a manner unfavorable to the Republican presidential candidate (George W. Bush)? In simple terms does the conservative principle not to allow court interference with the democratic process only apply when legislation is unfavorable to Republicans?

3) When we see that the president himself says the treatment of Christine Blasey Ford "doesn’t matter because we won," would not, should not Republicans object to dangerously approaching the Marxist maxim that the ends, i.e. results, justify the means?

4) Given the rhetoric coming notably from the president himself that Democrats present a danger to the American people, could we imagine another second party and its philosophy if the Democratic Party were to begin to disappear as did the Federalist and Whig Parties in 19th century American history?

For the moment I am waiting for answers.

These answers may not be uniform. Certain Republican potential candidates for high positions or even the presidency at some future time may have very different views on the issues that are raised.

It may be that the answers help define whether the more central or more Right-leaning branches of the Republican Party will take on the heritage of the Trump years.

Mark L. Cohen has his own legal practice, and was counsel at White & Case starting in 2001, after serving as international lawyer and senior legal consultant for the French aluminum producer Pechiney. Cohen was a senior consultant at a Ford Foundation Commission, an advisor to the PBS television program "The Advocates," and Assistant Attorney General in the Commonwealth of Massachusetts. He teaches U.S. history at the business school in Lille l’EDHEC. To read more of his reports — Click Here Now.

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This is a the New World, not of euclidian physics or quantum physics, but of Donald Trump politics, where the emotion surrounding the man takes center stage rather than a clear analysis of the issues.
america, divided, polarization
Friday, 19 October 2018 11:08 AM
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