Columns

Those opposing Donald Trump for the presidency -- Democrat and Republican alike -- have relied on various strategies to try to defeat him, but nothing has worked. :  

Berl Falbaum
Veteran Political Journalist/Author

Those opposing Donald Trump for the presidency -- Democrat and Republican alike -- have relied on various strategies to try to defeat him, but nothing has worked.

They have ignored him. They have offered mild criticism. They have even embraced him. Democrats have cited his vulgarity, immorality, 91 felony charges, conviction for sexual assault in a civil case, and so much more.

The result: Trump only climbed in the polls.

It should be clear by now (it should have been months ago) that they need to adopt an entirely new innovative strategy.

After much thought, I came up with the answer: They have to outdo him on his despicable behavior. Given Trump supporters’ acceptance and admiration of Trump, candidates have to show them that they could -- and would -- do worse. The principle is simple:

Give voters what they want.

Out with the old political thinking; in with the new which dictates proving they are no goody-two-shoes. They need to insist they don’t have an honest bone in their bodies and anyone who accuses them of being virtuous and a person who keeps their word is spreading ugly political rumors.

These candidates need to make the case that Trump is a Boy Scout compared to the loathsome and contemptible behavior they would display if elected.

And time is running out for Republicans in the primaries with the Iowa caucuses scheduled for January 15 followed by the New Hampshire primary January 23.

For instance, while Trump lied at least 30,000 times during his presidency, they would promise to double that figure. Nothing will be too trivial to lie about.  

“If you want a liar, you can’t do any better than me,” they would protest. “I’m the best around and I’m not lying -- this time.”

That should be good for a point or two in the polls.

Trump was impeached twice; his opponents would shoot for at least four impeachments and convictions in the Senate.

Trump is facing 91 felony charges in four separate indictments. They need to call that out for what it is: Child’s play.

Trump’s opponents would work to double that number. Plus, they would promise guilty verdicts. Add three points in the polls.

Trump has been found guilty of sexual assault. Trump’s challengers would point out that the verdict came in a civil suit. They would seek a conviction in a criminal proceeding which threatens jail time.  

They would also brag that they grabbed women by their genitalia whenever and wherever the opportunity presented itself, and they did that more often than Trump. This would be a biggie and probably put them ahead in the polls by double digits. (I am not sure how Nikki Haley would handle this issue).

The former president uses ugly language to characterize political opponents and adversaries around the world. His opponents need to upgrade their vocabulary -- I mean downgrade -- to make Trump look like a Mr. Nice Guy.

“I will be as sleazy as possible, I promise,” they would exclaim as supporters go wild. “Thank you, thank you. I will not let you down.  

“After I am through, Trump fans will regret having supported him.  Compared to my venality, he was virtuous. Deceit, dishonesty and double-dealing will be an inseparable part of our administration. We will not compromise on these principles. Never!

“‘Deceit, Dishonesty and Double-Dealing for a Brighter Future’ will be our campaign slogan -- DDD.

“In addition, I not only believe Trump won the 2020 election, but he won in 2000, 2004, 2008 and 2012 as well. I know the media will tell you he wasn’t even a candidate. But that’s part of the fringe left-wing media conspiracy. That proves I am worse than Trump; even he did not make that claim.

“I am in the process of hiring my staff and am culling prisons for the best talent. Forget about Michael Cohen, Steve Bannon, Rudy Giuliani, Michael Flynn and all the others. They were all amateurs.

“I am already considering cabinet members like someone from the Gambino family as attorney general. Makes sense to me. Who knows more about criminal law?

“For secretary of the treasury I am thinking about the crypto king, Sam Bankman-Fried, the guy who headed FTX, made billions but is now in prison. I would pardon him. My kind of guy.

“I also want to find a good position for Stormy Daniels. And I use the word ‘position’ advisedly.

“Every member of my staff and cabinet will be subject to criminal charges by the time we are done.  I will have hundreds of pardons printed the day we walk into the White House. All I will have to do is fill in the names.”

Then there is the issue of financing The Wall. Trump’s opponents can point out that the former president was never successful in getting Mexico to pay for it.

“I will tell you here today,” an opponent would say, “if I am elected, I will get Liechtenstein to pay for it. If it refuses, woe to the Liechtensteiners.

“Finally, I will incite insurrections for elections we lose anywhere in the country.”

Given the Trump voters’ moral compass, such a political strategy, if carried out properly, cannot help but produce victory.

As I write this, I can’t help but visualize the reaction to these promises on the campaign trail.

Supporters of Trump will leave him in a heart beat using an all too familiar refrain often cited by the former president: “We never heard of him.”
 

Most disputes will settle as a result of mediation when all parties voluntarily participate in good faith, share the same objective of settlement, consider different points of view with an open mind, and are willing to compromise after considering the alternative :  

By Paul Monicatti

Most disputes will settle as a result of mediation when all parties voluntarily participate in good faith, share the same objective of settlement, consider different points of view with an open mind, and are willing to compromise after considering the alternatives. Touted success rates range from 75% to 80% collectively for all disputes of every type, with some fluctuation depending on the particular type of dispute. Thus, many mediation participants enter into mediation with high expectations. Obviously, though, 20% to 25% of them will be disappointed.

Before the finger-pointing starts, and after searching for creative non-monetary options to satisfy previously hidden interests and then attempting various techniques to overcome impasse, all to no avail, there are several ways to salvage an up-to-that-point unsuccessful negotiation. Top mediators persist in exploring all available settlement options so the case doesn’t end up in court. You can capitalize on that tenacious character trait for your clients’ benefit. The ten steps  below can be discussed between counsel and the mediator before or after leaving an unresolved mediation that eventually could lead to a later settlement:

Tell the mediator the reasons why you think the dispute didn’t settle while something else could be done about it with everyone still present.

Ask for a mediator’s proposal of a suggested monetary solution, which may be a specific sum or a bracket for the parties to consider and may include rationale or a principled basis for the suggested figure.

Identify key factual, liability, causation, and damage settlement obstacles which might be removed by additional information or focused pretrial discovery.

Contemplate use of mutually acceptable independent expert(s) to opine on key disputed issues where the parties’ own experts conflict.

Identify the controlling legal obstacles impeding settlement that might be resolved by subsequent pretrial motion practice, such as motions to compel unproduced discovery, motions in limine on admissibility of contested evidence, or dispositive motions to partially or totally eliminate liability or damages, yet realizing that savvy trial judges could take any of these motions under advisement after briefing and oral argument thus leaving uncertainty to motivate further settlement negotiation.

Draft a partial settlement agreement signed by the parties specifying which issues have been resolved and which ones remain open.

Agree to recess and reconvene for another mediation session after sufficient time for: rest, reflection, reconsideration, and any necessary extension of a court-ordered deadline for completion of the mediation; further research, investigation, or focused discovery; review and analysis of any new information learned during the current mediation,  and consideration of whether other key player(s) should be added as a participant in the subsequent mediation session

Explore the use of other ADR methods, such as:

Case Evaluation. The dispute is submitted to a party-selected (instead of court-selected as in Michigan) panel composed of one neutral alone or with two other partisan evaluators known and respected by the parties for an advisory monetary award following written and oral summations by counsel. This option is especially useful where damage value disparity is wide and liability issues are relatively narrow or essentially uncontested; even if that doesn’t settle the case, it may stimulate further settlement discussion.

Expert Hearing. The mediator or a different neutral presides over a hearing designed to narrow the liability, causation, and damage issues disputed by the parties’ experts.
The disputed and undisputed issues are summarized before the hearing so that the experts focus only on the contested issues and the reasons for their disagreement. The experts meet together with the neutral, counsel, and their decision-making clients for them to answer questions by anyone including the other expert(s). Following the hearing, the neutral will resume mediation in an effort to bridge the discrepancies between the parties.

Minitrial. Typically used in business disputes involving larger amounts in controversy, this approach usually involves two phases. During the first phase a neutral advisor or mediator and party decision-makers hear the strengths and weaknesses of each other’s case from their attorneys who usually make more elaborate presentations of key evidence, including brief testimony, if necessary, to emphasize the point, unlike in mediation. During the second phase, the decision-makers then meet with or without the neutral, and often without their attorneys, to negotiate or mediate a resolution of their differences.

Summary Jury Trial. This method involves an abbreviated presentation of key evidence in a more formal courtroom setting to a jury composed of local jurors who then render either an advisory or binding verdict. Attorneys present their evidence by way of oral argument, selective exhibits, and an occasional witness, usually under strict time constraints. After the jury deliberates and renders its verdict, the parties have the opportunity to question them. The SJT’s objective is to give parties who are sharply divided over the merits of their respective positions a prediction of how a real jury might perceive their arguments and theories at a later actual trial to motivate them to reach a settlement. It has been successful in environmental, mass tort, and substantial contract cases.   

Arbitration. Arbitration is a binding process in which contracting or disputing parties choose a neutral arbitrator or a panel of three arbitrators to hear their dispute and to render a final and binding award. The process is similar to, but less formal than, court litigation because in arbitration the parties may craft their own procedures and determine whether any formal rules of evidence will apply. In contrast to court litigation, arbitration is typically characterized by no or limited pretrial discovery, minimal motion practice, relaxed rules of evidence and procedure, a decision in which there may be no detailed opinion or findings of fact and conclusions of law, and a very restricted ability to overturn the result except in limited circumstances. Therefore, arbitration proceedings are designed to be faster and less formal, with more finality, than court cases where trial results may be appealed and possibly overturned.

If all else fails and a trial in court or binding arbitration seems necessary to end the parties’ dispute, mediation still could lead to: a high-low arrangement (whereby the parties mutually agree to a stipulated minimum and maximum monetary result); bifurcation of trial (e.g., separation of liability and damages into different stages); stipulated facts, liability, damages, exhibits, or applicable law; and any other ways to simplify trial or arbitration.

When leaving an unsuccessful mediation, don’t lose your composure and burn any bridges by accusations of bad faith, wasting time, or other typical clichés. It’s best to remain civil and professional if possible, keeping the lines of communication open because if the parties stop talking, then settlement progress necessarily stops too. Ongoing communication also may lead to voluntary information exchange and cooperative discovery, if not settlement.

Keep in mind that the life of any dispute is in a constant state of flux due to ongoing investigation and discovery, newly discovered evidence, subsequent trial court rulings, new appellate and statutory law as well as changes in the parties’ interests, influences, finances, needs, concerns, and goals. Each significant change provides an opportunity to revisit settlement. Also consider giving mediation another try after changing the format, attorneys, client representatives, mediator, or anything else about the personalities and attitudes of those involved in the process. Mediation is flexible and can be adapted for a custom-tailored fit to suit the circumstances of a particular dispute and the people it affects.

Paul F. Monicatti is affiliated with Professional Resolution Experts of Michigan, LLC. He’s been an arbitrator since 1983 and a mediator since 1986 in all areas of the law except family law and criminal law. He’s earned the highest ratings possible from Martindale-Hubbell, Best Lawyers in America, Super Lawyer, Leading Lawyers, U.S. News and World Report, Crain’s Detroit Business, and the international Who’s Who Legal: Mediation.  A Michigan Lawyers Weekly 2019 Leader in the Law, he’s been named Best Lawyers’ 2024 Troy Area Lawyer of the Year for Arbitration, 2019 Troy Area Lawyer of the Year for Mediation, 2018 Troy Area Lawyer of the Year for Arbitration, and 2011 Detroit Area Lawyer of the Year for ADR. He’s served as a court-appointed mediator, settlement master, arbitrator, facilitator, case evaluator, receiver, expert witness, umpire, and referee. He authored the chapter on Mediation, Arbitration and Other Dispute Resolution Methods in addition to co-authoring the chapter on Settlement, Negotiation, and Alternative Dispute Resolution for ICLE’s Michigan Civil Procedure.  He has taught ADR Advocacy Skills in negotiation, mediation, and arbitration at Western Michigan University Cooley Law School. He is a co-founder of ADRoit Dispute Resolution, Strongbridge Negotiation Strategists, and the International Academy of Mediators.

I’ll start with a confession that I frequently get angry, even infuriated, by the incompetence, bias, amateurism, and shallow thinking in the media, despite being part of the profession for many decades. :  

By Berl Falbaum

I’ll start with a confession that I frequently get angry, even infuriated, by the incompetence, bias, amateurism, and shallow thinking in the media, despite being part of the profession for many decades.

However, I have never been shocked, that is, until now. And even “shocked” is too mild a word for my reaction to a couple of sentences in a column by New York Times columnist Nicholas Kristof.

Here are the sentences that blew my cynicism to bits (that won’t last long) and I type them with trembling fingers:

Israel has given “…its Palestinian citizens more rights than most Arab nations give their citizens. Israel’s courts, media freedom and civil society are models for the region, and there is something of a double standard: Critics pounce on Israeli abuses while often ignoring prolonged brutality against Muslims from Yemen to Syria, Western Sahara to Xinjiang.”

Wow!  I could not find a stronger synonym for “wow” and this appeared in the New York Times which has had a hard time printing one favorable word about Israel since its founding in 1948.

As author Jerold S. Auerbach pointed out in his 2019 book, “Print to Fit: The New York Times, Zionism and Israel:” Apprehensive lest the loyalty of American Jews to the United States be undermined by the existence of a Jewish state, [it] adopted an anti-Zionist critique that remained embedded in its editorials, on the Opinion page and in its news coverage.

I hope Kristof can keep his job.

Now, I have read zillions of stories and heard just as many from the broadcast media how Israel abuses Palestinians citizens. But I have never -- and I use “never” advisedly -- encountered one story anywhere that says Arab countries treat them worse, or how the 22 Arab countries have treated Jews, most of whom immigrated to Israel, fled because of persecution, or were exiled. Jews totaled 866,000 in the Arab world in 1945; they number fewer than 10,000 today.

As to Israel’s attitude toward Palestinians, two all too frequent words come to mind: “apartheid” and “genocide.”

So, let’s use Kristof’s observation to flesh out some gross distortions as they pertain to Israel. Is there discrimination and oppression in some quarters against Palestinians? Absolutely. Are there policies that need to be changed and/or eliminated? Absolutely. Must settlers in the West Bank be stopped from attacking neighboring Arabs? Absolutely. Does Netanyahu and his far-right cabinet need to temper their rhetoric and policies? 
Absolutely.

A short comparison to the U.S.: Does racism exist in the U.S.? Sure, but that does not  make it a racist country.

In this “apartheid” state, overall Palestinians have been integrated into Israel’s society. They work alongside of Israelis, attend universities, work in hospitals and, in early 2022, a Muslim man was appointed to the Supreme Court.

The political party, United Arab List, has representation in the Knesset (Parliament). Furthermore, there has been continual representation of Arabs in the Knesset since 1949, a year after Israel’s founding.
Former President Jimmy Carter gave much credence to the apartheid charge with his book, “Palestine: Peace Not Apartheid.”

When Carter was challenged, in an NPR interview, on his accusation, he replied that, in the book, he explains fully how he used the word but could not do so in the title. Perhaps he should have changed the title.

The following is extremely timely: A poll conducted by the Israel Democracy Institute after the Hamas massacre, found an increased sense of solidarity with Israel among its Arab citizenry -- indeed, the highest since the Institute began such a survey 20 years ago. When asked if they felt a part of the country, 70 percent of Arab respondents replied “yes” compared to 48 percent in June.

Aya Najame, a 20-year-old living in Haifa, told CNN -- yes, that CNN -- that “We live together here, Arab people and Jewish people. We work together, we go to the same places.

“Haifa is the most comfortable place. As soon as you leave Haifa you start feeling more uncomfortable, it’s (a) little hard to describe it, it’s just an uncomfortable feeling.”

Ashraf Ashkar, a 35-year-old Arab Israeli, said he has friends who serve in the Israel Defense Forces (IDF) and friends who were in areas Hamas attacked. “I speak to them all the time, I have a friend, an Arab, who joined the reserves last week,” Ashkar said, adding that Israel is his home.

I know these kinds of quotes are anecdotal but, to Kristof’s point, Israeli Arabs are ingrained in the country’s society.

Which brings us to the charge of “genocide” generally defined as annihilation, murder, massacre of a particular religion, race, or ethnic group.

Do the following numbers reflect genocide?

With a population of roughly 2 million, Arabs are the largest ethnic minority in Israel, comprising about 21 percent of Israel’s population. In 1948, when Israel declared its independence and after being attacked by five Arab nations, the Arab population stood at 156,000. That’s a growth of about 1.8 million. Genocide?

Further, some demographic experts predict that at present birthrates Jews may become a minority and that is why many support a two-state solution with one primarily a Jewish state. Genocide?

I wish that Kristof would have expanded his point to include the issues of apartheid, genocide, and other dubious charges and outright lies leveled against Israel.

As I wrote above: Israel should not be immune from criticism. I have leveled my own in many columns.

But distortions, bias, exaggeration, or ignorance are not synonyms for criticism. I wish reporters covering Israel would learn the difference.