Wednesday, April 28, 2010

When to ignore deadlines

The United States Senate is a good example of a place of endless negotiations, sometimes resulting in agreement and sometimes not.  Updating my post below on the ongoing Senate negotiations over the financial regulation bill, we are still in the process of  finding out what happens when a deadline passes but no agreement is reached.  Majority Leader Harry Reid announced last week a firm date and time (Monday at 5:00 p.m.) for a vote regardless of whether or not the parties had a deal on the text of the proposed bill.  True to his word, he called for a vote, and true to their word, all of the Republican Senators (and one Democrat) voted to deny allowing the bill to be debated.  Another vote was held Tuesday, with the same result.  What we are finding out this week, however, is that there is still just as much reason to reach agreement on this bill as there was last week, and the possibility of making a deal still exists.  The Republicans may feel even a bit more pressure this week to reach agreement, as they recognize that only a couple of their members need to defect to allow the bill drafted by Chris Dodd to reach the floor.   Some Senators on both sides in this negotiation may also feel, on the other hand, that a negotiated agreement is not the best way to achieve their goals.  Some Republicans may prefer to force the Democrats to take responsibility for passing this legislation, as they were forced to do with health insurance reform legislation, rather than cooperate and assume shared responsibility.  Some Democrats still hope that a couple of Republicans will defect, and allow them to pass a bill with fewer compromises, and they are willing to take the risk that no bill passes, which would allow them to blame the Republicans for this failure.  So if Democrats don't feel any undue pressure to make a deal, they can let the deadline pass, knowing that the pressure on the Republicans--either to compromise or defect--has not changed.    

Sometimes the passing of a deadline removes the possibility of agreement, but only if at least one of the parties decides to walk away from the table when the time limit expires, or if it is a real deadline, such as a trial date (although settlement negotiations often continue even during trial, while the jury is deliberating, and while the case is on appeal).   Most of the time, however, the parties have the same reasons to reach agreement or not both before and after the deadline, as I discussed in a previous post.  So the passing of a deadline merely means that whatever was threatened to occur at the expiration of the deadline may actually occur--the union will refuse to work without a contract, the Senate will vote on the Democrats' bill, the motion for summary judgment will be filed--but the possibility of obtaining an agreement frequently still remains.  Both sides' calculation of the pros and cons of reaching an agreement do not fundamentally change just because the clock has struck an arbitrary hour.

Mediators sometimes try to create pressure on the parties to settle the case on the day of the mediation, and parties in a mediation sometimes threaten that if agreement is not reached that day, settlement is off the table.  And it sometimes does happen that parties who fail to seize an opportunity to settle a dispute may lose the possibility of settlement for some time or even forever.  I agree that it is often helpful to create an atmosphere of opportunity and a certain amount of pressure on the day of the mediation to maximize the chances for a successful resolution.  I prefer, however, not to judge a mediation a failure merely because it does not result in a negotiated agreement on the day of the mediation.  As long as progress is made toward illuminating the parties' choices, the mediation serves a purpose.  As long as parties do not abandon the settlement discussion after an inconclusive mediation, settlement remains a possibility in the days or weeks or months following a mediation session.  The mediation itself should not serve as an artificial deadline telling the parties that they must abandon all hope of settlement if they cannot achieve it at the mediation.  Otherwise, mediation would perversely serve to discourage some settlements, contrary to its goal of promoting settlements.

(Harry Reid photo from Huffington Post; jumping off cliff photo from strumpette)


4/29/10 update:  Yesterday the Democrats succeeded in breaking the Republican filibuster, as a result of good tactics on their part--threatening an all-night session and repeated votes--and weakness among the Republican ranks--no surprise quite a few of their members are not fundamentally opposed to the bill.   Maybe the whole exercise was not really about deadlines, and not really about reaching an agreement, at all.  Maybe it was just about political power.  Maybe I need to do some thinking and some posts on the exercise of power in negotiations.  (As my labor law professor used to say, it's all about who's got the muscle!)

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