The Dispute between Shylock and Antonio - Essay Example

?Introduction In The Merchant of Venice, the parties to litigation are in high conflict. One of the parties, Shylock, requires no less than the deathof the other, Antonio. There are a variety of reasons for this animosity, but the fact remains that Shylock is not negotiating from a reasonable position. This paper will examine the three modes of settling a dispute – negotiation, mediation and litigation. Negotiation is basically a dialogue between two parties in an effort to create an agreement between the two parties. It is most effective when both parties can see the other's side, each party has something to give the other, and the conflict is not high (Cohen, 2003). It is ineffective when one or both parties are bargaining from an extreme position, in that one party either has a high demand and cedes ground slowly, or that one party has a low demand and cedes ground quickly (Carnevale & Pruitt, 1992). Mediation is negotiation between two parties, with a neutral third party guiding the process (Goltsman, et al). Mediation may be successful in traditionally high conflict situations like divorces. That said, it is not successful in divorce cases where one party is unreasonable, one party dominates the other, or one party is unable to approach the issues in a fair way (Gold, 1992). Litigation is the solution when the other strategies fail, and the parties appear before a judge and allow the judge to decide the case (Fox & Nelson, 1999). In this case, Shylock is not rational, is operating from emotion, and cannot approach the issues in a fair way. Because of the nature of the parties, and the conflict of the situation, litigation would be the most appropriate method of settling this dispute. Discussion Negotiation and mediation are both non-coercive actions that help parties come to an agreement (Bercovitch & Jackson). The first type of legal maneuver that will be examined will be negotiation. Carnevale & Pruitt (1992) state that negotiation is basically a discussion between the parties in an attempt to get to a goal. Goltsman et al. state that negotiation may end with one party winning; a compromise; no agreement; or a win-win, where both parties end up with an agreement that leaves them in a better position than if there were a straight compromise. The strategies of negotiation are that one party may concede some ground; one party may contend, in that they try to make the other person concede by stating that they will not concede; or problem-solving, in which both parties work together to find a solution that may be beneficial for both (Chapman, 1996). Carnevale & Pruitt (1992) state that all three strategies are needed to come to an agreement, even if each of the strategies seem to be mutually incompatible. Mediation is another tactic that may be used. Mediation is basically negotiation between the parties, but with a neutral third party guiding the proceedings (Carnevale & Pruitt, 1992). Goltsman et al. state that mediation has an advantage over negotiation only in the situations where conflict is high. If conflict is low, then non-mediated negotiation may produce favorable outcomes with just two sessions (Goltsman et al.). Mediation may be effective, if the mediator is able to make each side see the other’s point of view. A mediator may also make use of a caucus, where the mediator meets privately with either side. Carnevale & Pruitt (1992) states that this is most effective when the parties show a high level of hostility towards one another and a joint agreement seems unlikely. That said, a mediator may be misled by one of the parties, who might make a derogatory statement about the other party, and the other party is not around to rebut the statement. Mediators may be helpful in the negotiation process, as they may help one party realize how to save face; may help them resolve internal disagreements; or may help them talk to their constituents. They may also help the parties reach agreement by adding in incentives for agreement, or issuing threats for non-agreements. They may also help the parties reach agreement by creating an agenda for the parties. Litigation is what occurs when mediation and negotiation fails. Litigation is adversarial, where each side presents their evidence to an impartial judge, and the judge makes a binding decisions upon the parties. Litigation is traditionally marked by discovery, where each side seeks information from the other side, and presenting evidence in the form of documents and witnesses (Fox & Nelson, 1999). In the case of Antonio verses Shylock, the most appropriate method to resolve their dispute would be litigation. Negotiation would not be appropriate, as there is a high level of conflict between the characters. This conflict is shown by the fact that one of the characters, Shylock, desires to kill the other character, Antonio, by taking a pound of flesh from Antonio nearest his heart. Moreover, the animosity goes beyond the bargain. For instance, Shylock has a very low opinion of Antonio at the outset - Shylock makes reference to an “ancient grudge” that he has against Antonio, and he has expressed that he will not forgive him (I,iii, 39-42) Antonio has also been derogatory to Shylock before the advent of the bargain as well. Shylock indicates that Antonio called him “a misbeliever, cut-throat dog” as well as “spit upon my Jewish gabardine” (I, iii, 104-105). Antonio confirms that he did do these things for he states that “I am as like to call thee so again, to spit on thee again, to spurn thee to” (I, iii, 122-124). This is a situation where one party is extremely hostile and angry with another party. Mayer (2006) states that, even in situations where one party is overtly hostile to the other, a negotiation may be possible. Her offers the strategy of containment, where one individual concedes to the other their point. Other points in the containment strategy are not attacking the angry party, not defending oneself, and keeping the dialogue going. While these are excellent strategies in negotiating with an angry person, there is no indication that they would work in this case. This is because Antonio has ceded Shylock's point – he knows that he made the bargain and is prepared to die. This stance, however, has not softened Shylock. Therefore, the strategy of containment did not work in this case. Shylock is only interested in attacking Antonio, and this creates problem in negotiating solutions (Ury, 2007). Another reason why negotiation would be disfavored in this situation is because the parties cannot listen to one another, and Shylock is operating on pure emotion, instead of reason. Cohen (2003) states that, in a successful negotiation, each party must try to understand the stance of the other party. Each party must try to understand the values, beliefs, experience and mind-set that underpin that stance. Gregory Solomon, a character in Arthur Miller's play The Price, sums this up, stating “If you don't understand the viewpoint, you don't understand the price” (Miller, 1968, p. 62). In this case, understanding one another would be impossible, as Shylock is blinded by hatred, therefore he would not try to understand Antonio's point of view. Moreover, there is much indication that Shylock is not a reasonable man. According to Schaffzin (1997), in a negotiation, two parties have something of value to offer one another. This echoed by O'Malley (1998). This is not the case here, as Shylock wants only revenge, therefore he is not offering anything of value to Antonio. This is shown when Salarino asks Shylock what good Antonio’s pound of flesh would do him, and Shylock replies that he wants Antonio's flesh to “bait fish.” (III, i, 42-50). Shylock's goals are unrealistic, yet he will not abandon them, and this is a fundamental aspect of negotiation, according to Economy (1991) – that unrealistic goals must be avoided. This presents another reason why negotiation is not the appropriate approach, as negotiations tend to be most successful when they are not at the extremes. The extremes are that one party starts with high demand and concedes slowly, and this leads to no agreement. Therefore, this is an inferior outcome. The other extreme is that one party starts with a low demand and concedes rapidly. This leads to that party getting an inferior result compared to the other party. Research shows that the most successful negotiations are in between these two extremes. In other words, it is better to start with a high demand, but concede somewhat rapidly, or start with a low demand and concede slowly, then to do be at either extreme (Carnevale & Pruitt, 1992). Since Shylock is starting with a high demand, and is refusing to concede, then the negotiation would not be successful. Shylock also refused to listen to Antonio, which is another clue that Shylock and Antonio would never be successful in negotiation (III, iii, 12-16). Antonio also feels that nothing can really be done, because if the agreement is not honored, then it would make all agreements within the city impeached (III, iii, 25-30). Shylock even refuses to listen to the Duke. When the Duke attempts to get Shylock to be reasonable and accept something other than a pound of flesh for his bond, Shylock answers, once again, no (III, iii, 37-61). Mediation probably also would not be appropriate. A mediator may be helpful in cases of high conflict, but there must be a way to talk reasonably to the parties and help the parties see one another’s point of view (Crowley, 1994). In this case, there is no way to get Shylock to see Antonio’s point of view. He is too blinded by hatred and revenge. In short, Shylock is not working from a position where he is willing to negotiate under any circumstances. A mediator might be helpful to Antonio, in that a mediator can tell Antonio that the bargain that is made is against public policy, and has unconscionable terms, therefore would not be enforced by a court of law. That said, the mediator would not be able to help Shylock see a different point of view. As the parties here are in high conflict, and one party actively hates the other, the situation is analogous to a bitter divorce. While divorces are often resolved in mediation, there are certain circumstances when mediation is not appropriate, according to Gold (1992). These circumstances include “when one party clearly dominates the other, when one person is not capable of rationally approaching the issues, when one party is unwilling to be fairminded” (Gold, 1992, p. 253). In this case, Gold would not find mediation appropriate. Shylock is clearly dominating to Antonio, as shown by the fact that he will not hear Antonio speak. Shylock is not capable of rationally approaching the issues, as he is coming from a perspective of pure emotion and hatred. And Shylock is unwilling to be fairminded, as shown by his repeated vows to have Antonio's pound of flesh, and his repeated declines of fair-minded offers from Bassanio. That said, there is one way that mediation would work with these parties, and that is if Shylock respects the judgment of the mediator and the mediator is able to tell Shylock what the law is. For instance, the mediator may tell Shylock that he cannot have his pound of flesh because it is against public policy, therefore it is unenforceable. Or the mediator might also be able to tell Shylock what Portia finally did, and that is that the law states that he cannot take one drop of blood with his pound of flesh. As Shylock immediately demurred to legalistic argument with Portia, the mediator might be able to persuade Shylock to do so. However, this is doubtful, because the implication is that Shylock demurred to Portia’s judgment because he respected her authority as a judge. A mediator does not have authority – his or her decision is not binding, and neither is any agreement that the parties make in mediation if it is not ratified by a judge (Gold, 1992). Therefore, Shylock probably would not accord the mediator the same respect that he accords a judge, so the mediator probably would not be successful even if he told Shylock the law. Litigation would be the most successful in this case, which is what finally occurred, with Portia, in disguise, as the judge. There is some indication that Shylock respects the judicial process and respects Portia's authority as a judge (IV, i, 230-236). Shylock further shows that he respects the law when Portia states to him that he cannot take one drop of blood from Antonio (IV, i, 300-307). To this, Shylock does not protest or fight – he simply asks if that is the law. When Portia confirms that it is, Shylock immediately states “I take his offer then. Pay the bond thrice and let the Christian go” (IV, i, 310-315). When Portia refuses this, stating that Shylock must take his penalty or nothing, Shylock backs down still further and asks for his principal. Portia again refuses, and Shylock ends up walking away completely, not even taking his principal (IV, i, 340-341). Portia then awards Antonio one-half of Shylock’s wealth, because he sought the death of the defendant, and he still does not protest, stating that he is content. Therefore, because Shylock would not listen to reason, the only choice would be to litigate the matter. There is no indication that negotiation or mediation would be successful because of the bitter way that Shylock held Antonio. Shylock could not be persuaded. This is generally when cases are ripe for litigation - when one side or the other is not persuadable by any means. In litigation, both sides must accept what the judge rules, after presenting the evidence. Both sides must respect the process and respect the judge’s wishes (Fox & Nelson, 1999). That said, there is the possibility of appeal if one side loses. In that case, Antonio could appeal a decision that goes against him. For instance, if Portia would have ruled that Shylock could have his bond, then Antonio could have appealed the ruling to a higher court. That higher court, being learned of law and equity, and well aware of the public policy argument, would then probably overturn the decision. The reason why the higher court would overturn that judgment would be because the penalty is usurious and unconscionable (See Hart v. O'Connor [1985] 1 AC 1000) . On the other hand, in a negotiated settlement, there is not the option of appeal (Fox & Nelson, 1999). Therefore, Antonio really has nothing to lose by taking the case to trial and everything to gain. This is another reason why negotiation is inappropriate. If one side refuses to give an inch in negotiation, then the opposing party has nothing to lose by taking the case to trial. The opposing party could figure that the judge will give him or her at least as much as the recalcitrant party is willing to give, and probably more. Antonio has to figure, in this case, that, even if he loses at trial, he did not get anything less than what Shylock was offering him, so this would be a great motivation for taking the case to trial. Litigation is also appropriate because the judge had the discretion to make an equitable decision, as opposed to a legal one, if the circumstances fit. In this case, the legalities of the matter are that the two parties had a freedom of contract, and each gave the other valid consideration for this contract. As each party was not disadvantaged to the other, a judge might be hard-pressed to find against Shylock, from a purely legal standpoint. This is the argument advanced by Kornstein (1994). Moreover, the freedom of contract is one that must be held sacred, for, if it is not, then merchants will decline to do business in Venice, and this is is an aspect recognized by Antonio (III, iii, 26-31). While there are legalistic arguments that can be made, the judge may use equitable remedies. Portia used an equitable remedy in her finding, according to Kornstein (1994). Conclusion Negotiation is a technique in which two parties must attempt to come to an agreement. That said, negotiation is not appropriate when one party is making a high demand and is slow to concede. This is the case in The Merchant of Venice. Shylock refuses to concede, because he wants a pound of flesh, and revenge, and refuses anything less than this. Mediation probably would not succeed, either, although that have more chance of success than negotiation, as there would be a neutral third party who is guiding the negotiations, and this neutral third party might be able to convince Shylock that the law would not allow him to take his pound of flesh. Moreover, the mediator also might be able to tell Shylock about the law that states that if an alien tries to take the life of another that he will have to give up half his land and assets to the defendant and half to the state, which is Portia states. In this case, if Shylock knows that this is the law, he might relent. However, Shylock might not respect the mediator – after all, he did not respect the Duke, who tried to talk him out of his plan. In that case, litigation is the only answer, and this is what occurred in the play. Bibliography Bercovitch, J. & Jackson, R. “Negotiation or Mediation?” [online] Available at: http://cadair.aber.ac.uk/dspace/bitstream/handle/2160/1961/Negotiation%20or%20Mediation,%20Jackson.pdf?sequence=1 (Accessed 12 December 2011). Carnevale, P. (1992) “Negotiation and mediation.” Annual Review of Psychology, vol. 43, pp. 531-542. Chapman, J. (1996) Negotiating Your Salary: How to Make $1,000 a Minute. Berkeley: Ten Speed Press. Crowley, T. (1994) Settle It Out of Court. New York: John Wiley & Sons, Inc. Cohen, H. (2003) Negotiate This! By Caring But Not T-H-A-T Much. New York: Warner Books. Economy, P. (1991) Negotiating to Win. London: Scott Foresman Professional Books. Fox, G. & Nelson, J. (1999) Sue the Bastards: Everything You Need to Know to Go to – Or Stay out of – Court. Chicago: Contemporary Books. Gold, L. (1992) Between Love and Hate: A Guide to Civilized Divorce. New York: Plenum Press. Goltsman, M. “Mediation, arbitration and negotiation.” [online] Available at: http://discovery.ucl.ac.uk/14440/1/14440.pdf (Accessed 14 December 2011). Hart v. O'Connor [1985] 1 AC 1000. Kornstein, D. (1994) Kill All the Lawyers? Princeton: Princeton University Press. Mayer, R. (2006) How to Win Any Negotiation. Franklin Lakes: Career Press. O'Malley, M. (1998) Are You Paid What You're Worth? London: Bantam Doubleday Dell Publishing Group, Inc. Schaffzin, N. (1997) Negotiate Smart. Toronto: Random House of Canada. Ury, W. (2007) The Power of a Positive No. London: Bantam Books. Read More