Thursday, March 31, 2016

Mediation's Potential

A couple of recent experiences as a consumer of mediation services have made me wonder whether the practice is living up to its full potential. In one case, when the mediator and opposing counsel started talking about what was going to happen at trial, I told them that there was no way the case was going to trial. They already knew I had done my best to avoid engaging in motion practice, discovery or other forms of litigation activity, and they also knew that the cost of taking the case to trial would almost certainly exceed the amount in controversy, and that my clients probably couldn't afford it. Therefore I didn't see much point in talking about what was likely to happen at trial. I wanted to talk about a fair and practical settlement.

The mediator was not happy with this approach at all. He told me I should never admit to the other side that the case was not likely to go to trial, since that would take away some of my "leverage." Then he spent a lot of time with both sides talking about the strengths and weaknesses of my clients' defenses to the claim, even though no tribunal would ever adjudicate those. The mediation "worked," as the case settled at the mediation, for about the amount we thought it would, but I found it strange that the mediator was more tied to the adversarial system than I was. This was mediation as it is commonly practiced, in the shadow of the court system. It is mostly focused on assessing the benefits and costs of continued litigation, and forecasting possible trial outcomes, rather than finding much out about the needs and interests of the parties.

Not that there is anything terrible about comparing the costs and risks of continued conflict to the value of settlement. I use that technique to some extent in most of the mediations I conduct, because parties usually want to be reassured at some point that the deal they are contemplating is better than the alternative of proceeding with litigation. But we are not really breaking out of the litigation mindset when we limit the discussion at mediation to trying to predict how the court would resolve the case. We are not practicing an "alternative" form of dispute resolution when we are solely preoccupied with what happens in court. And unless the parties truly care about how a hypothetical court might decide the legal questions involved in their dispute, they do not need to base their settlement on that measure. They are free to resolve it based on whatever values and norms are important to them.

In another mediation I attended recently as an advocate for one of the parties, I also observed that the mediator was spending most of her time talking about how the trial judge in our case might rule on some pending motions and evaluate some of the claims. Though these legal issues were certainly important, I was frustrated to be spending so much time having an academic argument with the mediator about these issues. I think it might have been more productive if the other side could have learned something about the challenges facing my client's business, or if my side could have learned more about some of the factors influencing the other side.

At the end of the day, I finally had a chance to talk one-on-one with counsel for the opposing parties, and found that short discussion more useful and informative than anything that occurred the entire rest of the day. I wondered why the mediator had been so intent on keeping the parties apart all that time. It was not something I was demanding.

We need to spend less time talking about "the case," and more time talking about the parties' interests. We need to spend less time talking about a hypothetical trial, and more time trying to understand what is bothering and motivating the parties. That is how mediation can live up to its potential, instead of operating as a cut-rate imitation of the adversary system.

Wednesday, March 16, 2016

Supreme Court poker

Here is how one high stakes negotiation is currently playing out: First a recap. On February 13, 2016, Justice Scalia's unexpected death created a vacancy on the Supreme Court.

Within less than a day, leading Senate Republicans made a pre-emptive opening demand, announcing that they would refuse to consider, even to hold hearings for, any nominee the president proposed. 

Next, President Obama announced that he would proceed in the normal course anyway, and he also invited the opposition to the White House, where they meet in the Oval Office on March 1, 2016. Presumably the parties gauged each other's resolve, presented their respective best alternatives to a negotiated outcome of the dispute, perhaps suggested some ways of reaching a resolution. But no resolution of the dispute was announced. 

Both sides then started recruiting allies and public support, engaging in a public relations campaign. The Republicans dug up an old speech by Joe Biden suggesting a similar tactic during the Bush years to the one they are proposing. The president started floating names on his short list to judge public reaction. Senate Republicans stuck to their guns, and appeared unmoved by any of the names on the list.

Finally today, March 16, 2016,  President Obama announced the appointment of Merrick Garland. He is the Chief Judge of the most prestigious court in the country next to the Supreme Court, a man with unimpeachable credentials, and a political moderate. Garland is also 63 years old, meaning his tenure on the Supreme Court will be limited. 

From the Senate Republicans' point of view, this is the best deal they could possibly hope to get, assuming that they have to accept an appointment by a Democratic President. Their only better alternative is to elect a Republican President in November, a prospect that has to be regarded as somewhat less than a certainty, and also an outcome of which not all of them are so enamored, given that the Republicans' leading candidate has been emphatically denounced by both the last two Republican presidential candidates, and that he is likely to transform their party in ways they might not find so comfortable. The implicit threat is that if they don't confirm Garland, President Hillary Clinton will put forward a new nominee much less to their liking. 

President Obama's tactic is already encountering a small amount of displeasure from his own base, and runs counter to what some other presidents have done when they spar with the Senate over confirmation of a Supreme Court nominee. Reagan, for example, played to his base by putting forward the very conservative Robert Bork, but when Bork was rejected by the Senate, Reagan backed down and submitted the more moderate Anthony Kennedy. When Nixon's conservative pick Clement Haynesworth was rejected, in a fit of pique he first tried to double down and submit someone even more unacceptable to the Senate, Harrold Carswell, but Nixon eventually relented and appointed Harry Blackmun. President Obama is making the opposite play, giving in to the Senate up front by appointing a moderate, rather than provoking them with a liberal.

Conventional negotiating strategy suggests leading off by demanding even more than you expect the other side to agree to, leaving plenty of room to back down later after the other side's expectations have been set. On the other hand, there is also a time-honored technique sometimes employed in labor negotiations, sometimes in eminent domain negotiations, sometimes in negotiating contracts with athletes or actors, less often in litigation settlement negotiations, for one side to throw out the best offer (from the other side's point of view) that they are ever going to make right up front, to let the other side know that the more they haggle, the worse the deal will get for them. The technique has some serious risks, but it has some real strengths also. It makes sense, for example, when time is limited and appearances are important. It appears to be the game the President is playing here. If he chose a more conventional strategy of nominating a liberal judge, there is always the possibility that Republicans could have still defeated him by raising objections on the merits, holding extensive hearings, and running out the clock. Given that the Republicans had already announced that they would not do that, but would instead simply sit on whatever nomination the president made, it makes some sense that Obama put forward a name to which the opposition could have no valid objections on the merits.

Not surprisingly, we are already seeing some backtracking from the Republican side. Maybe, some are saying, we would confirm Merrick Garland in the lame duck session of Congress after the election. Of course that would be inconsistent with the rationale they have been giving for refusing to consider any nominee, which is that it should be up to the president the voters choose in November, but no matter. Allowing a vote in the lame duck would still give Senate Republicans the chance to grab the best deal they can get after finding out whether their alternative looks any better. 

So far (it's still the same day this announcement was made) all we're hearing from the White House is that there is no reason to wait until the lame duck session in December. But I wouldn't be too surprised if President Obama's next negotiating move is to tell Senate Republicans that if they don't confirm this nominee before the election, his name is going to be withdrawn. Deadlines are also a risky tool in negotiations, but they also can be used as a display of strength. I don't usually counsel parties in negotiations to employ deadlines and ultimatums, because too often parties need to back down from them when they are tested. The tactic might work in this case, however, depending on how bad the Republicans' November prospects end up looking this summer. On the other hand, President Obama may feel no need to add additional pressure, and he also probably feels that Merrick Garland would be a great addition to the Supreme Court, even if he has to wait until December for that to happen. In the meantime, it's been an interesting negotiation to observe.

Saturday, March 12, 2016

"Never Trump" and the Prisoners' Dilemma

A variation of the Prisoners' Dilemma problem may be playing out in the Republican primary campaign. Those elements in the party who are still seeking to prevent Trump from becoming the nominee have apparently abandoned their original tactic of attempting to coalesce support around the strongest non-Trump candidate while encouraging weaker candidates to drop out. Instead, the plan of the Never Trump movement is now to encourage all three remaining candidates to remain in the race, but act more cooperatively toward each other so that each can amass the maximum number of delegates in the states in which each is running most strongly, and thereby prevent Trump from gaining a majority in advance of the convention. Thus, Rubio and Cruz are supposed to reduce their efforts in Ohio to allow John Kasich to win there; while Kasich and Cruz pull back in Florida to allow Marco Rubio to win.

Most likely this strategy is doomed to failure if Marco Rubio, as currently projected, cannot beat Trump in Florida. But even if it remains viable for a while, there will still be strong incentives down the road for all three non-Trump candidates to defect and support a Trump candidacy, rather than to remain cooperative so that one of them (or somebody else) could instead succeed. It is not even clear that any of these three candidates views the prospect of a Trump candidacy as the worst possible outcome as opposed to the candidacy of some other candidate besides themselves. Thus the incentives to cooperate are already weaker than those presented by the classic Prisoners' Dilemma problem. And the incentive to defect to Trump, instead of to cooperate with the Never Trump forces, becomes more powerful as the process moves toward the convention.

If Trump is short of delegates, naturally he will seek to induce one of the other candidates to drop out and support him, offering whatever inducements he needs to offer (e.g., the vice-presidency or a Cabinet position). And each of those candidates might prefer to support Trump rather than cooperate with the anti-Trump forces, especially if they cannot match Trump's offer. Trump has already succeeded in getting two former candidates (Christie and Carson) to support him, and it would not take a genius negotiator to get Rubio or Cruz or Kasich to do the same in the right circumstances. (Cruz might be a special case since he has a history of taking positions that do not seem to result in the best outcome either for himself or the group, but for purposes of this discussion, we probably don't need to delve into each candidate's idiosyncrasies too deeply.)

In the highly competitive environment of this election, I predict that all of these candidates are likely to defect in some form or other, as each seeks his own best personal outcome. They will not continue to cooperate with the Never Trump movement. At the same time, each of the candidates has an incentive not to rock the boat too much; they should all want a harmonious convention and unity in support of the nominee. These powerful incentives to defect rather than assist with a strategy that might benefit one of them but would result in a bloodbath in Cleveland, make it highly likely that, barring unforeseen events, Trump will end up as the Republican nominee. I'm not saying that is an ideal outcome. But it's hard to see any scenario in the Republican Party right now that will accomplish what the Republicans have almost always accomplished in past elections, which is to unite the various factions in the party around whomever might be their strongest candidate, whether that's Trump or someone else.