Wednesday, February 24, 2010

The Mediator's Proposal

At the end of 2009, both houses of Congress accomplished the remarkable feat of passing comprehensive health insurance reform legislation.  The only problem: the two versions of the legislation are significantly different.  To resolve those differences called for either a conference committee (an idea the Democrats rejected, since they felt it would only be used for delay by the Republicans), or a negotiated behind-the-scenes reconciliation of the two bills, or passage by one or the other chamber of Congress of exactly the version of the bill passed by the other.  So it would seem that we should have been very close to the goal of getting health insurance reform to the president's desk.  The hard work was done, and only negotiation over the details and manner of completing the bill remained.  Suddenly, however, the political landscape changed with the election of Scott Brown in a special election in Massachusetts.  The Democrats no longer have 60 votes in the Senate, and therefore cannot overcome a filibuster joined by all Republicans.  And many Democrats in the House are now scared of their re-election prospects, enough to cause some delay in completing these negotiations.

It seems we have some classic formulas for impasse at work here.  Impasse can occur when parties are this close to completing a deal, but cannot quite bring themselves to close the remaining relatively tiny gap in their positions.  Or it can occur when a party starts to have second thoughts about making any kind of deal at all.  There are a number of ways to break impasse, some of which I have discussed in a previous post.

What is the president doing to resolve this impasse?  As I have also discussed previously, this president seems to view himself as a mediator, and has often in the past used mediator's instincts and techniques to solve problems.  In this case, he first proposed a new bi-partisan health care summit, inviting the leaders of both parties to air a free exchange of views.  This gambit may be aimed more at influencing public opinion than at negotiating a resolution (see this post below), since the summit has a focus beyond the most relevant parties to the negotiations.  (The only negotiation that should need to take place to get a bill passed is between House and Senate Democrats, not between Democrats and Republicans, since Republicans all opposed the bill.)  Nevertheless, the summit may achieve some of the traditional goals of a mediation process, allowing parties to "vent," allowing them possibly to listen to other viewpoints, and even creating an opportunity perhaps to exchange some useful ideas.

What President Obama also did that was interesting was to submit his own detailed plan in advance of the planned meeting.  Many political observers are questioning why he finally did that.  The administration took some heat from its own supporters for failing to put forward its own version of the bill last year, instead just giving general details, and leaving it up to Congress to design the specifics.  Why wait until we already have two completed bills ready to be adopted to propose yet a third bill?  And why propose a bill which appears different in many respects from what the president advocated last year, instead representing a compromise position between the House and Senate bills?   It strikes me that the answer to those questions is that the president's plan seems to represent the classic mediator's proposal, which is reserved until the end of the negotiations, when settlement does not appear possible by any other means.  It is a somewhat risky gambit, and one that is disfavored by many mediators.  (See these discussions by John DeGroote, Victoria Pynchon, and Steve Mehta.)  But it is also sometimes necessary, when the parties involved are looking for a kind of deus ex machina solution after having exhausted their efforts to reach resolution themselves.  Because the mediator represents a kind of authority figure (and in these health care negotiations, what better authority figure can there be than the president), parties who still want to resolve a dispute will sometimes accept a neutral's recommendation when they cannot bring themselves to compromise any further with the other side.

To be effective, the mediator's proposal must come at the right time, perhaps not until all the parties are begging for one.  The mediator's proposal must also represent not necessarily what the mediator thinks is the right solution to the problem, but rather a solution that he thinks both parties want to accept.  Sometimes that means arbitrarily splitting the difference between two parties' last offers, and sometimes that means putting pressure on one side to compromise more than the other.  In the health care example, the Obama proposal leans toward the Senate version, in recognition of the greater difficulty in passing another bill through the Senate.  At this point, it remains to be seen whether the mediator-in-chief will be successful in resolving this dispute, but he does seem to be going about it in a way that should be understandable to people in the conflict resolution field.

(AP photo from USA Today)


stevemehta said...

Joe, I think a simple way discussing the proposal is that it has to be at the right time, the right amount (proposal) and for the right reasons.

Joe Markowitz said...

That is a nice, simple summary of the mediator's proposal. But then we still have to answer these questions: When is the right time? What is the right amount? And what are the right reasons? I guess that's what they pay us for. Thanks for your comment, Steve.

M Curry said...

Nice connection. Different because he is also a decision maker and one openly opposed by one party but on the whole, good insight.

Joe Markowitz said...

You're right that the president is in some ways not the ideal mediator, especially in a dialogue between Republicans and Democrats, because he is clearly aligned with the Democratic side. And he ultimately signs (or vetoes) whatever bill Congress comes up with. (Maybe that makes him something more like a mediator-arbitrator.) But he certainly acts like a mediator, and he seems to use a lot of mediator tricks. It will be interesting to see how the whole health care issue is perceived by the public after today's session.

Holly Hayes Bovio said...

Joe, thank you for your comment on Disputing and for the link to your post "The Mediator's Proposal". I agree that the President has used mediator techniques in the debate. As you say, whether or not they will make a difference remains to be seen.