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Law Rules

How we resolve our disputes

Entries in Obama (4)


A good example

The recently announced proposed settlement of rescue workers’ claims arising out of the City of New York’s response to the Sept. 11 terrorists attack on the World Trade Center is an example of a good negotiated settlement on the most massive scale. About 10,000 people claim to have been involved in the rescue and clean-up efforts, and to have incurred some illness or injury in the process. Now, with trials set to begin in a couple of months, the claimants, the City, and the fund set up to compensate the workers have come up with a plan to distribute the money. The proposal still needs to be approved by a federal judge and 95% of the claimants, but with both the City and the claimants’ attorneys recommending it, that is likely. Like any personal injury settlement, some claimants will be unhappy. But they will have traded an uncertain claim and the risk of coming up empty-handed for a certain payout. The class action settlement proposal contains a mechanism for determining individual awards based on duration and nature of the workers’ exposure to dangers at the site and on each workers’ actual and potential medical history and condition. Apparently, after nearly 8 years of litigation and with juries almost in the box, both sides finally had enough information to adequately judge the costs, risks and potential rewards of further litigation. As I pointed out in my last post, mediation works best when the participants know their alternatives to a negotiated agreement. I don’t know if the parties actually used a mediator to help them reach this agreement. If anyone knows and cares to comment here, I would welcome your insight.

A few days after my last post, Lee Jay Berman blogged about the problem with President Obama’s attempts to mediate Congressional reforms, such as health care. He noted that the President is not a true neutral. In Berman’s words “He has a dog in the fight …” Berman suggested that what is needed is for the President to appoint a true neutral third-party to mediate the legislative disputes. I agree. And the first thing that mediator should do is to help each side determine their alternatives to a negotiated agreement. Their “jury” (i.e., voters) will be in the box in November. Perhaps that is their Sword of Damocles.


A bad example

I have referred to the health care reform debate several times in this blog.  But it occurs to me now that it is a bad example of dispute resolution or mediation.  It has been a year since Michael Scherer called Barak Obama the “mediator-in-chief” in an article in Time magazine.  Despite the President’s considerable mediation talents, the negotiations seem to be going nowhere.  The reason, it seems to me, is that no one is considering the alternatives to a negotiated agreement.  Mediators are trained to get the participants to look at their best and worst alternatives (BATNA and WATNA).  But Congress does not seem to be doing that.  Why?  Because there is no sword of Damocles, no trial date, nor any deus ex machina that will resolve the issue one way or the other if the parties do not do it themselves.  Without such a final win-lose end game, the parties merely stick to their positions, waiting for the other side to blink.

So until someone figures out how to impose such an end game, I am going to quit referring to the health care reform debate as an example of mediation.  You cannot have alternative dispute resolution without alternatives.  Until someone figures out what those are, it is all politics. And that is very different.


Talking to the messengers

In my last post, I wrote about shooting the messenger. Recently, it seemed that the Obama administration wanted to do exactly that to Fox News. Now, however, the administration has decided to talk to Fox News instead. According to an AP report, Fox News Executive Michael Clemente met with Press Secretary Robert Gibbs at the White House to discuss the administration’s complaints that Fox News operated like a wing of the Republican Party. Details of the discussion were not released. But the AP report points out that CNN prime-time host Campbell Brown has suggested that the administration needs to talk about bias on the left as well as bias on the right if it is to have any credibility. For example, do MSNBC hosts Keith Olbermann and Rachel Maddow operate as arms of the Democratic Party? Perhaps the news media and the White House both need to draw clearer lines between hard news programs and commentary, or ”infotainment.” At a time when I have met some young people who consider the Onion to be a credible news outlet, we all need to take a hard look at where we get our news. Do our news sources report what is important, or do they merely make important that which they can (or want to) report?  Maybe Obama should sit down with the news execs and talk about it over a bottle of beer.


A Noble Decision

Much has been written and said about the Nobel Peace Prize that was awarded to President Obama last week.  Agree with it or not, the Nobel committee can do what it wants — it’s their money.  No one outside of Norway voted for them and they didn’t tax anyone to get the money, so take it for what it’s worth.  But a couple of recent newspaper columns advanced vastly different views of what the President should do with the award.  First, Thomas Friedman said Obama should accept the award “on behalf of the most important peacekeepers in the world for the last century — the men and women of the U.S. Army, Navy, Air Force and Marine Corps.”  He reasoned that “there is no peace without peacekeepers.”  Then, Bono, frontman for the band U2 and peripatetic peace advocate, weighed in and suggested that Obama should use the prize to dedicate himself and the country toward “solving the three greatest threats we face on this planet: extreme poverty, extreme ideology and extreme climate change.”  He reasoned that “an America that’s tired of being the world’s policeman, and is too pinched to be the world’s philanthropist, could still be the world’s partner. And you can’t do that without being, well, loved.” 

So on one hand we have “make peace or we’ll blow you to Kindgom Come,” and on the other we have “all you need is love — Kumbaya.”  I’m sure that somewhere between those poles lies the truth.  Whoever can figure out exactly where that is, and how to get there, really deserves the Nobel peace prize.