Friday, November 5, 2010


One of the reasons the message of the Obama campaign resonated with me from the beginning in 2007 was that it coincided with my professional interests, which have been pushing me toward expanding my mediation practice, as an adjunct to my trial practice.  There has been a substantial movement in the courts and the legal community giving mediation a more prominent place in the resolution of private legal disputes.  Cases are now routinely sent to formalized mediation sessions, in which participants and attorneys attempt to reach a negotiated resolution of the dispute, as a means of avoiding an unpredictable and costly court battle.  Because I am a believer in this process, as well as a trained mediator, I was also interested in the extent to which candidate and now President Obama, who often seems to operate with a mediator's instincts and techniques, would be able to transform our political culture in a similar direction.

All of that just serves as an introduction to a post on my mediation blog, which I am reprinting here, which analyzes the midterm election from a mediator's perspective:

Regardless of their own political leanings, advocates of mediation should be concerned by the bruising midterm campaign season that has just ended, and by the prospect of gridlock and increased partisanship in the next session of Congress.  In mediator's terms, we are facing the likelihood of impasse.  Conservative Democrats and moderate Republicans have been drummed out of both parties, leaving the more doctrinaire members dominant.  Newly energized Republicans have already announced that they have no appetite for compromise.  And Democrats have already started attributing the diminished enthusiasm of their base to the administration's willingness to make concessions to the opposition.  It will take all of the president's mediator-like skills to make progress in this situation.  Alternatively, he may abandon those instincts and take a more "Give 'em hell, Harry" approach to governing, which would probably please sizable elements of his supporters.

The public in general, and mediators in particular, responded positively in 2008 to candidate Obama's promises of a new kind of politics in which people of different views would work together constructively and respectfully to solve the country's pressing problems, instead of acting in our usual divisive and destructive manner.  That hasn't exactly happened, has it?  And it wasn't for lack of trying on the president's part.  But critics on the left have relentlessly attacked the administration for being too conciliatory, while critics on the right have adopted a deliberate strategy of opposing anything the administration has proposed.  It seems as though hardly anyone is still attracted to the vision articulated in Barack Obama's electrifying speech at the 2004 Democratic Convention in which he implored us to get beyond red states and blue states and start identifying ourselves as part of the United States.  Yet that vision, which many would probably now dismiss as hopelessly naive, was what propelled Obama to the forefront of the presidential race, and attracted millions to support his candidacy.  

What has happened in our politics the last couple of years shows how hard it is to get past our propensity to view the world in adversarial terms.  If the president has been unable to sell the public on the idea of peacefully resolving our political conflicts, how are mediators going to be able to sell the public on the idea of peacefully resolving private disputes?

I would add that this is obviously not just a problem for mediators.  We now face an increasingly polarized political climate, with all of the highly partisan new members of Congress from the Republican side facing an even more liberal Democratic side, purged of many Blue Dogs.  And Congress is now split right down the middle.  The irony is that among the general public, there is actually a fairly high degree of consensus on how to approach a number of the problems that still need to be addressed, for example immigration, energy, the environment, international terrorism, economic recovery, and taxes.   Bi-partisan responses to many of these problems have already been worked out.  The outlines of comprehensive immigration reform were already proposed by President Bush.  The outlines of a comprehensive approach to climate change were exhaustively worked out by a committee consisting of Senators Kerry, Lieberman and Graham.  Yet our polarized political structure will likely make it impossible to enact reforms that the majority of the public supports, because all of these problems have become political footballs in an adversarial contest.   Are we going to prefer to see a series of showdowns between incoming Speaker Boehner and President Obama over the next couple of years, or do we want to encourage some real negotiation to solve these problems?

(KAL cartoon from The Economist)


  1. I applaud the mediation process in courts.

    I also was pleased to hear then candidate Obama's comments about a new kind of politics. Obama as a mediator? No, he is the one who hired Geitner, Raham Emmanuel, Axelrod and Summers, then worked with Reid and Pelosi . I am not defending Republicans! Neither party gets it.

    I gave some good examples of where Obama failed the middle in my last three posts in your "Wild About Harry" blog post. I reject that Reid, Pelosi and Obama tried to work with Republicans. It was all a verbal jousting. Republicans were pushed aside when it came to health care reform and then said no nearly everything else.

    My view: Obama took a low key approach and let Reid and Pelosi do the heavy work and employ the heavy handed approach. But he agreed with it. Many independents who believed his version of Hope and Change are now offended by him. Their choices are to believe he is uncommonly naive -- or less than truthful. Both are bad but most have chosen less than truthful – and that’s worse because that is directly opposite of why he was elected. In other words he's more of the same old same in Washington despite a brilliant campaign. And he still has Reid and Pelosi.

    The President's accomplishments have all been done back room style. He has stolen the hope the middle entrusted to him. He _had_ the masses to make a difference. He played with the emotions of Americans.

    While we waited with hope for meaningful change that would lift those out of work and stop Wall Street rip offs -- he employed Geitner. While Obama Reid and Pelosi rammed a poor health care reform bill through congress against the wishes of the majority of Americans, our economy was in decline and investment lending disappeared. We watched a crumbling housing market twist in the wind. When we needed and wanted change Obama messed with health care and the Fed printed more money.

    There is a massive change coming.

  2. In the stimulus bill, major concessions were made to get Republican support, but still not a single House Republican would vote for it, and only three Republican Senators. In the health care bill, more open hearings were held than for almost any other piece of legislation in history. Major efforts were made in the Senate committees to get Senators like Grassley and Snowe on board. Despite those efforts, it ended up with not a single Republican vote. The idea that the health care bill was heavy-handed or shoved down peoples' throats is pure Republican propaganda. Their leadership made a deliberate strategic decision to attack the legislation and to demand that all of their members vote against it, for the express purpose of allowing them to argue that the Democrats somehow shoved it down their throats. The contents of the legislation didn't matter. It didn't matter that the bill was very similar to Romney's bill as Governor of Massachusetts. Senators like Snowe and Grassley who had supported the bill in committee, decided to stab Max Baucus and Harry Reid in the back when the bill came to the floor, at the behest of their leadership. They just decided to present a united opposition, and as a strategic decision, that worked, because moderates like yourself are buying it.

    As for Tim Geithner, I believe that in a few years they will be erecting statues to him and Hank Paulson and Ben Bernanke for saving our financial system from collapse at minimal cost to the taxpayer.

  3. << The idea that the health care bill was heavy-handed or shoved down peoples' throats is pure Republican propaganda. >>

    I don’t know why you keep pointing fingers at republicans. I am not supporting their actions. I am responding to the actions and inactions of Obama. That he is no mediator. He had a chance, turned his back on those who elected him -- and that chance is gone. He fiddled with health care reform when he should have been focusing elsewhere.

    On the lack of heavy handedness in passing what we now call Obamacare -- we don’t agree. The republicans were going to vote no. We knew that. Obama, Reid and Pelosi didn’t make concessions to republicans – they made only enough changes to the bill to get the Democrats and special interests on board. The following are some of the back room deals with insurance companies, drug makers and special interests:

    Cornhusker Kickback; The Louisiana Purchase; Gator Aid; New England Handouts; The Dodd Clinic; Medicare Expansion; Tax Exemptions for "Profiteering" Insurer; and Billions in Payouts to Insurance Companies.

    << As for Tim Geithner, I believe that in a few years they will be erecting statues to him and Hank Paulson and Ben Bernanke for saving our financial system from collapse at minimal cost to the taxpayer. >>

    I highly recommend you go see the documentary “Inside Job” by Charles Ferguson. Then let me know how you fee. I am pretty sure you will look differently at Paulson, Summers, Rubin, Bernanke, Greenspan, Fannie and Freddie and the elite university economist who were in bed with them. It is fair and distributes blame in all directions from the 80s to present. But it convincingly shows who really played the American people (and the world) for fools. They are still in charge. Health care reform is peanuts compared to this stuff.

  4. In hindsight I guess it's easy to say that the Republicans were always going to vote against health care. But when the bills were working their way through the committees, there were a lot of indications that a few Republicans would support the effort. And Olympia Snowe did in fact vote in favor in the Senate Finance Committee, until the leadership got to her, and pressured her to get in line once the bill got to the floor. So yes, I do blame the Republicans, because the Democrats made heroic efforts to involve them in the process, but the Republicans finally decided, en masse, that it was more in their political interests to try to paint the Democrats as pushing something unpopular down their throats. Had they just considered the merits of the bill, instead of the politics of the bill, you would think at least a couple of them might have been in favor of trying to deal with one of the country's most pressing problems. And had this bill been considered on its merits, instead of needing 60 votes to pass the Senate, a few Democratic Senators would have dearly loved to vote against it. Anytime something passes on a strict party line vote, that is an indication that politics is playing a bigger role than the merits of the legislation.

    As for Wall Street, I think we might be talking about different issues. Give me enough credit that I don't need Matt Damon to explain how we got into this mess like I'm a five year old, though I'm sure I would find the documentary interesting. My point had nothing to do with how we got into the mess, but only about how we are getting out of it. I know about Rubin's and Paulson's and Summers's backgrounds, and of course they are the ones who helped create the markets and the products that later caused the whole system to crash. My feeling is, who would have been better than them to clean up the mess they made? I know that a lot of people would like to punish Wall Street more for its excesses, but I'm not sure that would have been so helpful. What we needed to do was get the financial system back on its feet, and to regulate these dangerous new markets that these guys created. We have made great strides in doing that.

  5. Joe, of course you don't need Matt Damon or me to explain Paulson, Summers, Geitner, Rubin and Bernanke's backgrounds. However, it sounds like you might be interested in Ferguson's story -- the real story -- with the men above on real film making real policy. Erecting a statue to them (any of them) is like Superman throwing a baby out a fifth floor window, realizing somebody saw him and then running down to catch the baby. That is not a hero.

  6. When we look back on the 1920's and 1930's, we don't think as much about blaming the speculators and the hucksters who helped create the stock market bubble and crash. What we wonder is how we could have allowed people to trade stock without the protections of the Securities Acts of 1933 and 1934. In other words, it was a failure of regulation that allowed Wall Street to behave recklessly, more than a failure of traders to live up to higher moral standards. The job of people on Wall Street is to make money in whatever way is allowed. That's what they have always done and we really can't expect them to act in any other way.

    So I think that when we look back at the present period where we allowed mortgage-backed securities and financial derivatives to get out of hand without proper regulation, what we will wonder is how we allowed these products to be sold without proper regulation, more than we will blame the people who were packaging them and selling them. Again because they were just doing what people on Wall Street have always done and always will do. I'm not saying they are blameless. I'm just saying it's unrealistic to expect them to develop a different set of morals than the ones that financiers have always had from the beginning of time.

    By the way, remember that the first chairman of the SEC was Joseph Kennedy, one of the biggest sharks on Wall Street. So it doesn't trouble me at all to put people like Tim Geithner or Larry Summers in charge of reforming Wall Street. What is really radical is that the Obama administration is also installing an outsider like Elizabeth Warren as a consumer watchdog. Let's give him some credit for first of all, trying to put in place the same kinds of reforms that Roosevelt did so successfully, and then for even going a step farther than that.

  7. Very good points! Thanks for sharing them.

    On a side note, I love the pictures you roll on the site!

  8. We agree 100% about Warren. Dodd's opposition was troubling. Props to the Pres!