FROM THE GERM’S POINT OF VIEW
By Stephen Marcus, Mediator
In his classic book “Guns Germs and Steel”, Jared Diamond makes the astute observation: “In life in general, one has to understand the enemy in order to beat him, . . .” Diamond made this statement in the context of explaining the relationship between humans and disease-causing microbes. Diamond encourages we readers to understand (from an evolutionary viewpoint) what benefit the microbe gains from making humans deathly ill. Only then can we humans come up with a solution that allows we humans to survive the onslaught from deadly microbes.
One of the examples Diamond discusses in his book is the Bubonic Plague, which wiped out a third to half of the population as it spread across trade routes from East Asia to Western Europe in the 14th and 15th Centuries. The Plague quickly caused the death of that third (or half) of the population that lacked the natural anti-bodies to resist or outlast the germ. However, what did the susceptible portion of the population in was not the microbe itself, but the human body’s reaction to the microbe. The microbe did, indeed, cause great discomfort to the human body – causing symptoms of ill feeling and painful, open body sores. But what caused death was the human body’s reaction – to kill all the invading germs. The human body did this by activating its auto-immune system to raise the human’s body temperature until the invading germs were fried. Unfortunately, in doing this, the temperature rise also fried the human body – and this is what caused the death of the body infected by the Plague.
In fact, the invading Plague germ did not want to kill its human hosts. The germ had been able to live a long, dormant life in the blood of rat fleas. However, its (evolutionary) sexual urges motivated it to find new homes with sufficient nutrients to enable it to reproduce, and then get the kids to leave to find new homes where they can produce grandgerms. By evolutionary trial and error, the Plague germs discovered that the human body was the ideal home. But the germ didn’t want to kill its host – in doing so it would kill itself also. All it wanted to do was to live long enough to reproduce, and create symptoms in the human through which its offspring could spread to new hosts – i.e., creating open body sores through which the offspring could flow through the human’s blood stream out of the body and into new bodies who may come into contact with the infected sores.
There are parallels to this in litigation. Litigation is generally characterized as battle of “plaintiff v. defendant”. The plaintiff wants something (or feels entitled to something) that the defendant has, and the defendant wants to (or feels entitled to) keep it. There are two (sometimes overlapping) ways to treat litigation: (a) battle full steam ahead until the other side capitulates or is destroyed, or (b) find a resolution that accomplishes some, but not necessarily all, of each party’s initial or stated goals.
In the Middle Ages, the litigation we can call “Plague v Human” followed the first course. The Plague went full steam ahead, without thought of compromise, to create as many symptoms (open soars) as fast as possible to achieve its goals, without concern to the effect on the defendant Human. The Human adopted the tactic of trying to destroy the plaintiff Germ by litigating it to death – by raising the temperature of its environment such that continuation of the litigation became too costly for the Germ. Unfortunately, in the short run, this tactic backfired on the Defendant. The defendant Human wound up spending itself into the biological equivalent of Chapter 7 without discharge. The plaintiff Germ, on the other hand, achieved its goal before the Defendant’s tactic could take hold. It was able to reproduce, and quickly spread its offspring to other humans (aided by the affected humans’ willingness to live in densely populated, unsanitary cities) before the Human’s defense took hold.
Before you conclude that the Plaintiff Germ benefitted from the “full out war” litigation tactics, consider the case of “Plague Germs v Humans” – species v species. By pursuing its litigation strategy over-aggressively, the Plague Germ community tried to wipe out Humans. All of the humans who were susceptible the germ spent their resources quickly and filed for the above-described equivalent of biological Chapter 7. The Plague survived for a while by finding new communities of Humans to sue, but when their spread hit the wall of the Atlantic Ocean, that source of housing ran out as well. What was left was a community of Humans who were able to defend against and outlast the Plague. In essence, the entity “Humans” as a species went through the biological equivalent of a Chapter 11, severely impacting that unsecured creditor, the Plague. So in the long run, the Plague lost this litigation as well.
If only the Plague and the Human could have mediated their dispute (as it now can thanks to new information obtained in discovery). The Plague could have lowered the aggressiveness of the symptoms it caused, perhaps not being able to spread as many of its offspring as before, or as quickly as before, and agree to limit the time it spent in each home. The Human, in exchange, could have agreed to lower the temperature on its resistence, and allow the Germ to live out its short life span without frying both parties. Indeed, centuries later, such a mediation did occur. Once we Humans figured out the Plague-human interaction from the Plague’s point of view, Humans came up with solutions in the form of (a) development of anti-bodies which enabled the human body to resist the germ without frying it (thus outlasting the germ, whose life span in the human body was relatively short once it reproduced), and quarantine (thus, disabling the germ’s children from finding new homes before they, too, expired). The Germ’s reaction was to evolve as a species into a form which caused less-severe reaction in human hosts, and which could spread some of its offspring by other means, or to find other, non-human hosts in which to live and reproduce.
All of us have experienced another “Germ v Human” interaction that has been resolved through what appears to be a mediated resolution: that well-known case of “Common Cold v. Human”. This battle could have played out in ugly litigation. Instead, the parties came up with a solution that meets the immediate needs of both parties, but gives neither party all it wants. By this agreement:
- The Cold Germ agrees that it will stay in the Human for a limited time (a week), and will only cause mild symptoms (coughing, mild sneezing, sweating) sufficient to allow some of its kids to find new homes, but leaves the Human feeling well enough to continue most of its regular day-to-day activities. And the Cold Germ agrees to leave after a week and (because of a concession of the Humans, described below), agrees not to return for another 6 months to a year.
- The Human agrees that it will not fry the Cold Germ to death – that it will let the Cold Germ stay that week so long as it gets out after the week, and that it will develop natural anti-bodies that are effective only temporarily – for 6 months to a year – rather than permanently, so that the Cold Germ’s descendants will have a home at some time in the future.
Neither side got all it wanted. The Cold Germ did not get a permanent home where it could cause huge symptoms allowing it to reproduce and spread all of its children without limits. The Human did not wipe out the Cold Germ and create a cold-germ free environment, as it ideally would have liked. Both sides got enough of their demands to meet their needs, enabling both sides to get on with their lives after the litigation was over.
And that is the benefit of resolving disputes by mediation – both sides are able to get on with their lives in a productive manner after the litigation is over.
© Stephen H. Marcus 2015
Stephen Marcus is a Panel Mediator for EB Resource Group. He specializes in business litigation, bankruptcy, UCC matters, secured creditor transactions, commercial contracts, real estate and construction disputes. To schedule Stephen for a mediation, please call (818) 753-2326.