Theory of Dispute Resolution - Dispute between Shylock and Antonio (Merchant of Venice) - Essay Example

?Dispute Resolution and “The Merchant of Venice” s Dispute Resolution and “The Merchant of Venice” Shakespearean literature has been long commended by scholars for its incorporation of legal discourse into its plot structures that further paves way for interdisciplinary study of law. Practically all of Shakespearean texts are known to have tangential relation and relevance to legal practice; however, the substance of this prose will focus on the plot structure of “The Merchant of Venice” and assess the dispute resolution tactics that could have been effective in dealing with the conflict. 1 The play does not only have an entire scene depicting a courtroom trial that had been the prime source of dispute resolution in that era and this method is also known as “litigation”, but play has also paved way for legal analysis and “Alternative Dispute Resolution”. The term “Alternative Dispute Resolution” or “ADR” refers to a repertoire of mechanism that can substitute court trials and litigation efforts to resolve a dispute; they largely entail discussions between the disputant parties. 2 ADR is further subdivided into negotiation, mediation, arbitration or adjudication and ombudsmen schemes; these methods are also known as “out-of-court settlements” and often entail the involvement of a third party to assess the situation and give their unbiased opinions on the matter. Although, ADR methods cannot substitute courtroom trials or litigations in all matters but they are cost-effective and are less time consuming. ADR methods actually aim to eradicate the root or the main cause of dispute that enables the disputant parties to resolve their issue as healthily as possible without having any detrimental repercussions on any of the parties involved. It is important to understand that the procedures followed by each of the ADR methods is essentially the same, the only difference lies in the implementation of the final verdicts. Hence, the decisions in a dispute are non-binding if they are made through “mediation” and “negotiations”3. On the other hand, all decisions can either be binding or non-binding if they are made through arbitration and adjudication, respectively. It largely depends upon the agreement made with the third party. Arbitration is binding, the verdict is implemented whether the decision is approved by either parties or not; whereas, adjudication is non-binding and if the verdicts are not approved by the parties then it is nullified and the parties can actually approach the court for a resolution. Thus, it can be deduced that for ADR methods to work, the entire process is largely contingent upon the willingness of the parties to establish a truce. In case, ADR fails to find a solution to the problem then litigation serves as a last resort method to aid the individuals in reaching an agreement. Adjudication or arbitration is often referred to as a private version of a courtroom trial but is a much more formal process than a court hearing. All of ADR methods parallel each other in many ways but there are certain differences that stem from how binding the verdict is and the degree of involvement of the third party in aiding the communication between the disputant individuals or groups. 4 For instance even mediation is a parallel of litigation in every way but there some very substantial differences in the way how things are assessed in a dispute. Unlike litigation that is usually implemented in accordance with a legal principle, the guiding principles in mediation can be legal, moral or religious and it is up to the disputant parties to choose a method that fulfil the parties’ needs. Justice is brought about through two aspects; the rudiments and the process through which those rudiments or standards are applied. It is apparent that adjudicative measures in resolving issues can result in a bias in the case and the justice arising from it is established using a specific line of thinking and standards that are created by the advocates that is then adopted by the tribunal or the judge. 5 Therefore, a mediator must understand the aforementioned principles in order to act in an unbiased manner to find out a solution for the issue. Furthermore, the mediator should possess the apt to resolve the issue by targeting the underlying variable that triggers conflict as they act as deterrents and pervert the course of justice. This is done by getting the two parties to voice their grievances against each other and recognize the exact factor that resulted in the conflict in the first place. Therefore, ADR methods actually seek to completely eradicate the root cause of conflicts and encourages healthy relations between members of the society; however, assessing Shakespeare’s work of fiction as a legal model the fundamental flaws in the trial are brought to surface. Further examination of the conflict dynamics can also help understand as to how the matter would have been resolved through an alternate method. In the play “the merchant of Venice”, the dispute lies between a Christian merchant Antonio and a Jewish moneylender named Shylock. Before, the establishment of the bond between the two parties, there were extraneous variables that contributed to the exacerbation of the conflict that stemmed not only from religious differences, but other deep-seated grievances against each other as well. Besides the ostensible religious differences, Shylock is depicted as an evil usurer, whereas Antonio is a kind-hearted Venetian. Both of them are rivals in business and Shylock is well aware of Antonio’s aversion to his unfair business practices.6 Previously, Shylock had incurred heavy losses because of Antonio and as a result these factors actually deepened their resentment for each other. Antonio and Bassanio were reluctant to ask for Shylock’s help, but dire circumstances caused them to accept the unfair terms and conditions and Antonio is caught up in this unjust bond. The negotiations between the two parties had entitled Shylock to a pound of Antonio’s flesh in case he was unable to pay him back. However, due to an unfortunate turn of events Antonio lost his ships and therefore became liable to Shylock. As it is a known fact that for negotiations to take prior effect in resolving the dispute both parties must show a certain amount of readiness or flexibility. However, Shylock was adamant to claim the pound of flesh and declared that even if he was being paid twice the amount he would not accept it. Hence, the issue reached a deadlock and as a result a court was called in session. The trial was adjudicated by the Duke of Venice to resolve the dispute as personal grievances had surpassed the need for a logical solution. The courtroom trial is shown in Act IV scene 1 of the play and this is the longest and most intriguing segment of the play.7 The court hearing is adjudicated by the Duke of Venice and the trial is largely in favour of Shylock, who refused to forego his claim on Antonio’s pound of flesh. Bassanio had come to Antonio’s aid and had even offered Shylock twice the amount of money but the offer was refused and any dialogue between the disputant parties reached a deadlock. Even the Judge, the Duke wanted Shylock to show some mercy but the fact that Antonio had agreed to the terms and conditions of therefore, the trial had been largely in favour of Shylock. Portia enters the trial room in the guise of a Venetian lawyer and the whole case is given a new direction. 8 Portia starts her argument by first pleading for mercy but upon Shylock’s refusal, she grants him his right over Antonio’s flesh but within certain laws of Venice. Portia states: “This bond doth give thee here no jot of blood; the words expressly are ‘a pound of flesh’: Take then thy bond, take though thy pound of flesh; But, in the cutting it, if thou dost shed one drop of Christian blood, thy lands and goods are, by the laws of Venice, confiscate unto the state of Venice”9 Portia cites the laws of Venice that leaves Shylock speechless and as a result he is left with no option but to forfeit his claim over the pound of flesh. The scene has an intriguing use of legal tactic through which Portia saves Antonio’s life; the main argument was that even though, Shylock’s entitlement to the pound of flesh was legitimate but if Antonio bleeds in the process is a violation of the Venetian laws and will criminalize Shylock. Portia had gone ahead with this charade to help her husband, Bassanio out of this predicament. Therefore, her motivation to partake in the legal battle was already biased and her prime objective was to save Antonio’s life and she was successful in doing that by finding a loophole in their agreement not by resolving it through dialogue or attempting to alleviate their deep-seated resentment against each other. Hence, it can be easily deduced that Portia’s role in the play was more like that of an advocate than a mediator or an arbiter. In the play, Shylock not only loses his claim over the pound of flesh and the principal sum that he had lent to Antonio but he is also required to convert to Christianity and loses half his assets due to another law that Portia cites. According to that law, Shylock being a Jew is considered as an ‘alien’ in Venice and as he had to try to take the life of a Venetian thereby, all of Shylock’s assets were now divided amongst Antonio and the State. The play clearly depicted tension between social equity and legality triggered by excessive literalism involved in the logic presented by Portia to seek out just ends for Antonio without actually enforcing the bond between the disputant parties. Besides that the argument places significant amount of speculation on Venetian law that displayed social inequity in dealing with such issues whereby, a strictly legal matter was demonstrated through a religious and social point of view. The play’s depiction of the dispute settlement through adjudicative measures gives rise to various questions regarding the efficacy of the aforementioned method. Even the final verdict presents some perennial issues of injustice and anti-Semitic undertones throughout the text. 10 Portia’s role in steering the trial in favour of Antonio will be assessed in the light of two very important ADR procedures that is ‘Negotiation’ and ‘Mediation’, discussing as to why both methods would have been ineffective in dealing with the issue. Negotiation is a very effective ADR method that is centred around peaceful dialogue between the two parties to try and seek out a solution that does not have any detrimental repercussions on either party. Two very important traits that are highly essential to establish a ground for negotiations are ‘good faith’ and effective internal communication. 11 ‘Good faith’ actually refers to a certain attitude that is adopted by both parties to have a belief and willingness to compromise through dialogues for this proper internal communication is also necessary to help both parties become have the prior information about each other so that they may be able to sort out a solution as effectively and quickly as possible. The importance of internal communication and the term ‘good faith’ became synonymous with the English contract law after cases like Carter v. Boehm12 and Erlanger v. New Sombrero Phosphate Co13. In case of Mr. Carter withheld important pieces of information from the other party and therefore, the notion of good faith came in to being whereby, non-disclosure of key data was equated with fraud Shylock and Antonio’s relation lacked both of the aforementioned prerequisites for negotiations and the subject of their animosity remains untouched. Shylock never acknowledged that his inflexibility in the trial was actually his way of exacting revenge and was not meant to honour their contract. Their personal grudges stemmed from social and economic disparities, any form of dialogue would have been impossible and even in many scenes their distaste for each other is quite ostensible. Even in one scene, Shylock himself points out that Antonio had been very unfair in his treatment and had often referred to him [Shylock] as a ‘cut-throat dog’. Shylock’s statement seems like reasonable enough to point out the fact that Antonio was not completely an 14innocent party in further antagonizing their relationship. 15 Therefore, in an environment like this negotiation cannot take place because for dialogue to take place both parties must show each other the willingness and readiness to talk their differences out and settle them as quickly as possible. On the other hand, if the dispute was assessed from a mediator’s perspective one can find a number of procedural flaws in Portia’s manner that is to be blamed for failing to achieve a solution to their problem. As it is discussed earlier, Portia acted more like an advocate than a mediator and this observation is further reiterated by Professor Carrie Menkel Meadow in her article titled “Women as lawyer”. Hence, from an advocate’s perspective, Portia’s arguments were strong and she did a commendable job in not only saving Antonio’s life but also brought ruin to Shylock. However, had Portia acted as a mediator there are a number of things that she [Portia] would have taken care of. 16The first rule of mediation is to avoid calling the parties as right and wrong as it exacerbates conflicts as opposed to alleviating them. A mediator should never take sides or favour one party over another and the mediator must try to seek out the most logical solution in the most unprejudiced manner. Besides neutrality, the mediator must possess clarity in his approach as proper education of the disputant is also 17necessary to help them be able to see the exact dynamics of their conflict and to understand the risk of not dealing with the dispute. Mediation involves the complex principle of procedural justice that grants every individual the right to freely express himself in a dispute and to make sure that his side of the story was heard. This aspect has been further elaborated upon by the philosopher David Miller, who further argued that the justice system is based upon four critical attributes that are important for mediators to embody them in the mediation process. 18The traits are equality, accuracy, publicity and dignity; the traits highlighted by Miller essentially revolve around the same ideals discussed in earlier parts of the prose. I19f Portia’s judgment and argument were assessed from Miller’s perspective then there are some substantial flaws in her behaviour. Portia as a mediator failed to incorporate the principle of consistency that is also outlined in the ‘mediation act of 1997’, that further highlighted the discrepancies in her judgment that led to the injustices. 20Even Miller’s observation regarding effective mediation is based on general principles of arbitration that are outlines by the contemporary English legal framework. According to which, mediation is the intervention in a conflict between two parties that should give them the right to freely associate and they should also have the right to voice their opinions. As discussed earlier, a mediator can actually choose any line of thinking; therefore, legal factors are just one aspect of the constellation of norms that can be used as a base for justice. Hence, it is not necessary for mediators to form all their judgments on legal terms but a mediator’s job is look for the most reasonable or logical solution to the matter. However, in case of Shylock and Antonio’s dispute they neither had a common religious or social background; therefore, even with effective mediation they would have failed to see eye to eye. Furthermore, Shylock has reiterated a number of times that ‘he craves the law’ and Portia in order to find a speedy solution to the problem failed to investigate the matter any further. Had Portia dug deeper in their personal history she would have discovered the animosity that was fuelled by both parties; Antonio who had always overtly expressed his disapproval of Shylock and his heritage, and Shylock who had always seen him [Antonio] as an archrival and held him responsible for his daughter’s desertion. Had Portia even attempted to let Shylock voice his early grievances against Antonio or even shed some light on the past relationship between the two individuals, the final judgment would have been a whole lot difference and it could even have resulted in Antonio changing his perspective on Shylock and vice versa. However, all these aspects were never discussed in court and Shylock’s demands were fulfilled whereby, it was the law that actually led to his ruin and as an ultimate humiliation, Shylock was forced to convert to Christianity in front of everyone. The injustices done to Shylock are very ostensible and it was not only the fact that Portia lacked the tact of a mediator but also there were several discrepancies in the framework of the Venetian legal system that allowed such injustices to transpire in the trial room. 21 Therefore, litigation in that era had ended up in a total fiasco for Shylock and as discussed earlier the judgement was largely in favour of Antonio. Therefore, out of all the ADR mechanism Arbitration seems like the most logical method to help sort out the dispute. Shylock craved the law and arbitration parallels litigation in every way but is a less formal but essentially it follows the same rudiments. Arbitration could have efficacious in resolving the dispute as it involved an unbiased third party acting as the arbiter, who could easily delve into the matter and giving each party an equal opportunity to give out their opinions and their exact demands. Furthermore, arbitration is conducted largely in the light of the law; therefore, extraction of the flesh meant endangering the life of an individual and Shylock’s claim over Antonio’s life would have been automatically nullified. 22 Besides, an arbiter has a similar function as that of a mediator but with greater control over the situation for instance as highlighted above, even if either party objects to the judgment made by the arbiter they cannot contest and have to accept it. Furthermore, an arbiter thinks independently and does not include religious differences in the process of arbitration. Therefore, the final verdict would have been that Shylock accepts the money that was offered by Bassanio and the two parties were encouraged to sort out their own differences. The fact that Shylock was so reluctant to forfeit his claim over Antonio’s life is a blatant display of animosity, which they need to sort out through dialogue. In contemporary legal framework, the Arbitration Act of 1996 has further improved the ADR mechanism that enhanced the awards associated with arbitration and has given greater provisions to anyone, who wishes to seek out a solution to their problem through arbitration. 23 Shylock and Antonio’s case has been of great interest because not only the dispute had an intriguing aspect but it also sheds light on the erroneous laws of Venice during that era that equated justice with religion. Therefore, the result produced through litigation resulted in completely devastating one party whereas, the other thrived. As both negotiations and mediation failed, Arbitration seems like the most logical mechanism that could have generated fairer results. 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