One of the unusual things about being an expat for a prolonged period of time is watching US news from the outside. Even though I have access to any number of American news outlets, being in a place where I am not surrounded by people who all share the same obsession with the 2012 Presidential race does afford some interesting perspective. And there is no question that, even from this moderate distance, American politics does look unusually polarized right now: it appears that large part of the electorate disagree so fundamentally on basic principles that agreement on anything seems unlikely.
Or is it? In an old (as in mid-1990s) article, Chicago law professor Cass Sunstein described the phenomenon of "incompletely theorized agreements." (The article is Incompletely Theorized Agreements, 108 Harv. L. Rev. 1733 (1995).) It’s often used to explain "gaps" in legal rules, but it also works as a negotiation strategy between parties that disagree fundamentally.
Professor Sunstein’s proposed strategy is to agree where possible on particulars, without worrying about whether one agrees on the underlying abstract principles:
"My suggestion in this Commentary is that well-functioning legal systems often tend to adopt a special strategy for producing agreement amidst pluralism. Participants in legal controversies try to produce incompletely theorized agreements on particular outcomes. They agree on the result and on relatively narrow or low-level explanations for it. They need not agree on fundamental principle. They do not offer larger or more abstract explanations than are necessary to decide the case. When they disagree on an abstraction, they move to a level of greater particularity. The distinctive feature of this account is that it emphasizes agreement on (relative) particulars rather than on (relative) abstractions."
(Emphasis added.) Professor Sunstein sees these incompletely theorized agreements resulting from democratic deliberations. He points–for example–to the Federal Sentencing Guidelines, which, while not a model of theoretical coherence, did at least make it into law. He also points out that these agreements can work for parties that have limited time or limited bandwidth with which to make a particular decision.
What Professor Sunstein does not mention is that this strategy works in reverse as well. In other words, when one is negotiating a deal where the particulars are sticking points, one can often find agreement on some of the more abstract principles at work. (This in fact is the "principled negotiation" behind Getting to Yes; it was also a strategy at the 1787 Constitutional Convention, where the delegates would often make general proposals with literal blanks where more controversial specifics might fit in.)
In other words, where possible, one should find the points of agreement, and emphasize those. When one finds oneself in a stalemate, it may be worthwhile to change the level of generality of the discussion. (If you’re getting stuck on details, talk principles; if you simply cannot agree on fundamental principles, perhaps certain specific proposals will still garner agreement.)
The other advantage, in a litigation context, is that this strategy will help you test the resolve of the other side. If it is willing to agree to specific details, then agreement is possible. If not, then it may very well be the case that your counterpart is more interested in the litigation (or conflict) for its own sake than in resolving the dispute.