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)

Tuesday, February 16, 2010

Fear of Joint Session

The practice of quickly moving to caucus sessions has become so widespread that many parties attending mediation seem to expect to caucus almost immediately.  Parties seem to want to cut to the chase of settlement negotiations quickly, and are concerned about the possible volatility of a joint session.  I had a couple of experiences recently where counsel expressly asked me before the mediation even began to please not even allow the parties into the same room at all, because they viewed it as a waste of time, or worse, to face the other side.  My response was to suggest that we at least stay together for introductions and some initial housekeeping matters, and then continue in joint session only for so long as the joint session continued to be productive. 

In both cases where counsel had asked me to keep the parties apart, it turned out that they had little difficulty in talking to each other.  Interestingly, I'm not sure we would have reached a settlement in either case if the parties had not remained in the same room for an extended period.  In one case, a landlord-tenant dispute, the joint session gave the parties a chance to see each others' human sides.  The parties also needed to make that kind of connection so that they could avoid similar disputes in the future.  In the other case, a dispute between two contractors, the parties needed to exchange a lot of technical information, which they were able to do directly, and which would have taken more than twice as long, and probably would have been less effective, had they been required to filter their views through the mediator.

The lesson for me was that parties sometimes need to be nudged away from their initial reluctance to remain in joint session.  Joint sessions present the fastest and most direct means of exchanging information.  They also allow the parties a terrific opportunity to observe how the other side presents their case, and reacts to their side's claims.  And they present a real opportunity for potential reconciliation in some cases.  Parties should enter into mediation with the expectation that they are going to be sitting in the same room with their adversaries, the same as if they were attending a deposition or a trial.  They should expect to break into caucus only when there is a real need to protect the confidentiality of information they may not care to share with the other side, or to conduct a strategy session outside the hearing of the other side.  The fear that a mediation will devolve into an unproductive shouting match is overblown, in my opinion, but of course precautions should be taken to protect against negatively-charged joint sessions.

(The photo, which I found on a soccer blog called True Fan, illustrates what sometimes happens in mediation.  Both the disputing players are pointing fingers at each other.  One of the disputants is trying to confront the other one, but that one is directing all his comments at the referee.  And the ref seems to be looking elsewhere for guidance.)

Thursday, February 11, 2010

Settlement of Public Disputes

I read today that the Los Angeles Conservancy got the owners of the Century Plaza Hotel to agree to preserve the key historic features of the hotel in their plan to develop the property.  (My prior post on that dispute is here.)  Coincidentally, I saw a post today on Victoria Pynchon's blog about a preservation dispute in Dallas, raising the question whether internet comments on newspaper blogs and similar forums can assist in resolving such disputes.

Of course public comments can be helpful in putting ideas on the table, and in ascertaining the extent of public support for preservation of an historic landmark, or for the development that threatens that landmark.  But commenting on Victoria's post  reminded me that what really helps get public disputes like these settled is pressure from the decision-making body on both the preservationists and the developer to reach a  solution that satisfies both sides' interests.  Or as I like to say when I have represented the preservationists, all we want is a better project.  In the case of the Century Plaza Hotel, it took effort by a city council member to induce the parties to come to the table to hammer out a solution.  In a dispute over the development of the Cinerama Dome property in Hollywood, in which I represented the Los Angeles Conservancy, we were able to obtain the developer's commitment to modify their project to preserve the property's historic features, but only after the agency responsible for approving the project told the developer they must make efforts to satisfy the preservationists before the project would be approved.  I was involved in a similar process with an apartment project in Beverly Hills, where the City Council actually convened a mediation session in the middle of a City Council meeting to put pressure on both the developer and the preservationists to reach an agreement.  I also worked on the failed effort to preserve the Ambassador Hotel, which was demolished to make way for a school.  The difference in that case was that the judge, while careful to listen to every point of view during the hearing, was also not inclined to delay her decision in order to pressure the school district into accepting a negotiated solution.

Often judges feel that the best way to induce parties to settle a case is to set a trial date, and to stick to it.  When the parties are forced to bear the cost of preparing for trial, and get close enough to contemplate the risk of losing, settlement often becomes a more attractive alternative.  But with public disputes over historic preservation and similar issues, where the interests at stake may be broader than those contemplated by the parties involved, the best result may not always be obtained by rushing a decision.  If developers know that they must satisfy the community's concerns before they can proceed with a project, they are much more likely to be responsive to those concerns, and much more willing to sit down with the community's advocates to reach a solution.

(Photo of the Ambassador Hotel from lageneology.)

Tuesday, February 9, 2010

Managing Conflict

In a post on my political blog, I discussed the president's plan to hold a bipartisan session on health insurance reform, which at face value seems to represent an offer to mediate or negotiate a consensus bill, or at least to invite the Republicans back into the process. The Republican leadership has responded by demanding that the Democrats admit that their whole effort to reform the health care system was a mistake and that they agree to start over. The Democrats don't seem inclined to do that, but they don't seem to expect they will persuade many Republicans to support the bills passed by the House or Senate either.  Rather, their offer to hold a public negotiating session may aim only to expose the Republican opposition's proposals as failing to meet the administration's announced criteria for reform.  Since they seem more interested in defeating rather than embracing the Republicans' ideas, Democrats must instead plan on using these negotiations to gain more public support for their own proposals.

If this health care summit goes forward, it will do so with the recognition that it carries risks as well as rewards for each side.  Both sides may decide that such an effort is worthwhile even if they have no expectation of persuading the other side to accept the soundness of their principles.  It is worthwhile because political opponents understand that they are going to remain in conflict over basic principles forever, but nevertheless recognize the occasional need to debate and compromise in some sort of civil fashion in order to get anything done at all.  They may be engaging in debate as sport for we the people to judge.  So what we learn from watching political or religious or philosophical debates is that resolving these kinds of conflicts may not be the point of the debate at all.  Rather, public diplomacy or debate is just the arena for managing the continuing unresolvable conflict, and helping to prevent it from erupting into violence.

In private disputes, parties are more likely to enter into negotiations or mediation with the goal of reaching an agreement.  Reaching an agreement in a private dispute is less likely to require the parties to surrender their principles, while still allowing them to satisfy at least some of their (perhaps purely monetary) goals.  Ideally, an agreement may even allow parties to reconcile, to put their disputes behind them, and to achieve justice as well as peace.  But oftentimes, mediation will not achieve any of these results, or will only achieve a few of them, because many private conflicts are as intractable as public ones. 

A mediation should not be deemed a failure if it does not result in settlement.  Indeed in some cases, settlement might even be viewed as failure, if settlement leaves one or both parties feeling unsatisfied or defeated.  Mediation, however, whether or not it results in settlement, is almost always a useful way to gain valuable information; to test out the soundness of each side's legal and factual positions;  to convey those positions to the other side; or to help both sides see their options more clearly.  In most cases, settlement will emerge as the better alternative to continued litigation, but even if the parties remain in conflict, they should still gain a means of managing that conflict in a less self-destructive fashion as a result of participating in mediation.

(photo of political debate in South Korea from crazynews)