Pictured: Republican House member (via morguefile.com)

Negotiation is the process of reaching a compromise between two or more opposing parties, each of whom has something the other wants, and who has the legal right to grant or withhold it. My experience has mostly been in litigation, where a plaintiff has a viable claim, and a defendant has the ability to offer a monetary and/or injunctive settlement. The usual purpose of a settlement in litigation is to avoid the future costs/risks of continuing to prosecute or defend the case.

If one party to a lawsuit is asserting claims or withholding evidence in bad faith, proper negotiation is impossible. In many litigation scenarios, a party who engages in such bad faith, or their counsel, may be subject to penalties. In a contract negotiation, the subsequent discovery that a party has withheld or misrepresented material information could be construed as breaching the contract, could invalidate the contract, or could justify modifying the contract on terms favorable to the other party. Our political system, apparently, does not have equivalent checks, unless voters actually go to the effort of holding their elected representatives accountable. This brings us to the current hubbub over House Republicans’ determination to get rid of the Affordable Care Act (ACA, or “Obamacare”) at all costs. Continue reading →