The Supreme Court and Sun Tzu

There is a view, largely held by those emperilled with youth, or naivety (or worse, both) that aggression leads to victory. 

In Orwell’s dystopian novel 1984, the official motto of the nation of Oceania was War Is Peace, Freedom Is Slavery, and Ignorance Is Strength. Even the most totalitarian amongst us realize that these are probably not useful motifs for the design of a nation.

Mark Twain said in the 19th century, and which perhaps remains true even today, ‘God created war so that Americans would learn geography.’ In part that’s a commentary on American education, and in part it’s to highlight the futility of going into battle.

Having recently turned 50, I realized a long time ago that anger is overrated. As Karen DeCrow said, “As we age, we realize that none of us will be here in 100 years, so it is not necessary to do each other in.”

And so I continue my quest to persuade warring factions to step back and rethink what they want to achieve from a fight. So often I hear ‘What they did isn’t right’ as if that is reason enough to start a skirmish, be it physical, in court or on social media (the modern battleground). The hostilities are often part of a crusade to prove moral supremacy. But for what purpose? 

Although not universally true, women suffer from the red mist of anger less than men. Perhaps that is societal, or physiological, but whatever the reason women tend to be the peacemakers in a world of male aggression. That is not to suggest women don’t wield significant power, but I would suggest that more often than not women wield that power better than men. I’m not so much referring to the women of Sparta and Athens in Aristophanes’ Lysistrata, or of the power behind the throne of Laclos’ Marquise de Merteuil, but more to the more recent pandemic response. Countries with women as head of state such as Denmark, Finland, Iceland, New Zealand, Germany and Slovakia have been internationally recognized for the effectiveness of their response to the pandemic. These women leaders were proactive in responding to the threat of the virus, implementing social distancing restrictions early, seeking expert advice to inform health strategies and unifying the country around a comprehensive response with transparent and compassionate communication. Indeed, a Harvard Business School study reinforces the importance and advantages of women as leaders in society and corporations, with venture capital firms that hired more female partners showing increased profitability. 

But I digress. The point I’m trying to make is that Sun Tzu got it right when he said “Supreme excellence consists of breaking the enemy’s resistance without fighting.”

Put in less bellicose terms, supreme excellence consists of overcoming your opponent’s objections without fighting. You see, I’m not naive enough to think that we can avoid conflict, or that there won’t be tensions – each of us will face a serious legal issue every seven years, and it is likely to put us in direct conflict with a loved one, neighbour, boss or landlord. No, I’m not suggesting we can avoid conflict, but I am suggesting we can avoid using hostility to resolve it. 

And what has that got to do with the Supreme Court of Kazakhstan? Well, traditionally, courts around the world have been like wrestling carpets, or boxing rings. Both sides fight it out and ultimately a judge, usually, an elderly man, decides who has won. The winner is jubilant – their preparation and efforts have been vindicated, and the loser, well, is the loser. And that may be fine for wrestling or boxing, but what about a divorce? Who ‘wins’ custody of a couple’s children, and who loses, will dictate family relations for decades to come. In a dispute with neighbours, the ‘winner’ has still got to live next to the ‘loser’ – not an ideal situation.

And so the most advanced courts around the world have realised that their purpose is not to help people fight, but to help people resolve their problems. Not to create winners and losers, but to promote a mutual understanding of the issues, and facilitate an agreed solution. To allow both sides to see, often for the first time, the problem from the other’s point of view and work through each side’s objections. This is much harder than determining a winner and loser – I know from personal experience sitting as a judge. It involves empathy, compassion, support, understanding, patience and flexibility. Often, if not always, the problem complained about is not the real problem – something else has triggered the dispute. Getting people to accept and discuss that involves the judge being part social worker and part psychiatrist but, once everything is out on the table, only then can a resolution be forged between both sides.

And because courts have not been set up to do this, and judges are not always the best at empathy, compassion, support, understanding, patience and flexibility, citizens around the world don’t use the courts. Indeed, only 5 percent of people with a serious legal problem choose to go to court. When asked why, they say things like, ‘courts are for rich and powerful people, not me’. This has led, in some cases, to citizens taking the law into their own hands (not good!) and, in others, to a 17.5 percent per annum growth in private sector online dispute resolution: Citizens are looking to the private sector, not the state, to help them solve societal problems.

But there is good news for the citizens of Kazakhstan. I had cause, recently, to look at the use of mediation and conciliation by Courts around the world. It is not a pretty picture! But Kazakhstan appears to be on the march. Back in 2017, only 4 percent of cases in the Kazakhstan Courts were amicably resolved, leaving around 900,000 Kazakh citizens as either winners or, more harmfully to the fabric of the country, losers. The situation wasn’t much better in 2018. But, in recent times, and as part of the Supreme Court Chairman’s Seven Pillars of Justice strategy, we have seen the situation alter, with over 13 percent of cases in 2021 amicably resolved. There remains work to be done to reach the upper echelons of Court supported conciliation, where over 90 percent of cases are resolved, on average in 4 weeks, but that requires wholescale system redesign, the application of advanced technologies and the retraining of many Court leaders and judges to learn how to reach a resolution, rather than give a determination. But to have even reached 13 percent of cases amicably resolved, which is 300 percent more than in 2017, it shows that the strategy is working, and working well: Given the progress being made in the digitisation of the Kazakh Courts, I’d expect this trend to continue for years to come.

So, Sun Tzu spoke of ‘supreme excellence’ being the ability to resolve problems without a fight, something that the Kazakhstan Supreme Court is moving towards. And the reason why? The Seven Pillars of Justice strategy for sure. But, could it also be connected to 51 percent of judges in Kazakhstan now being women? Just saying!

Mark Beer OBE is co-Founder of Seven Pillars Law in Kazakhstan, as well as being a visiting fellow at Oxford University, a visiting professor at Shanghai University for Political Science and Law and a member of the World Economic Forum’s Expert Network. Mark specialises in helping to resolve disputes, whether between Governments, companies or individuals. He also Chairs The Metis Institute, which advises Governments on the implementation of dispute resolution reform that promotes citizen-centric dispute resolution.

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