An adversarial system is by nature and design a zero sum game. There is no win-win. There can’t be.

I am a divorce and family lawyer.  I do not wish a divorce or a child custody battle on my worst enemy.  Nevertheless, when a divorce or other family law dispute arises, I encourage people to settle their differences peaceably between them.  It is cheaper.  It is less time-consuming.  It can result in a truly win-win outcome, if people are honest and fair-minded.  Aye, but there’s the rub.  When your estranged spouse won’t deal fairly, settlement on fair terms is impossible, and so you may determine that your only remaining resort is litigation and submitting the dispute to one whom you pray is an educated, experienced, impartial judge.

Our system of litigation is adversarial.  An adversarial system  is by nature and design a zero sum game.  There is no win-win.  There can’t be.  So why does the judiciary and why do the pseudo-intellectuals and cowards masquerading as peacemakers in the legal professional bemoan the fact that litigation is so “contentious”?  If you require litigants to engage in a zero-sum game you mustn’t be shocked to discover that they will (as they should) play to win, not to compromise.  Deal with it.

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