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Negotiation Lessons From The President

by Joe Markowitz
December 2010

From Joe Markowitz's Mediation's Place Blog

Joe Markowitz
Here are the president's comments on the deal worked out yesterday on taxes: 



The media seems preoccupied with trying to figure out which party gains politically and which party loses; who wins and who caves.   Partisans on both the right and left seem anguished by how much each side had to "give up" to make a settlement.  Watching the president explain the rationale for making a deal, I am struck by how hard he has to work to persuade these partisans of the necessity and justifications for the deal.  It is remarkable how similar the president's rationales sound to the explanations lawyers and mediators have to provide for parties to a litigation, to justify the benefits of a settlement over the uncertainties of litigation. 

This particular deal looks a lot like a "win-win" settlement.  That means neither side got exactly what they wanted, but both sides were able to satisfy important interests.  And the alternative to this deal would have meant failure for everyone, because both sides were agreed that they wanted to preserve tax breaks for the middle class, and if they couldn't resolve this issue, then all of the Bush tax breaks, including those for the middle class, would have expired at the end of the year.  To avoid that, they had to agree to extend the 35% top marginal rate for high earners for two more years, instead of allowing it to revert to 39%, but in return Republicans agreed to substantial additional tax breaks for working families.  In addition, the negotiators won a thirteen month extension of unemployment benefits.  (Ezra Klein's summary of what he called an imperfect, but not bad deal, is here.) (Andrew Sullivan also has a very good analysis of how shrewd a deal this was, from the president's point of view, here.)

What may be even more important and impressive is just the fact of being able to make a deal at all, in the wake of a polarizing election, and especially one that satisfies the most important interests of both parties.  This seems to represent a triumph of the Obama campaign's promise to bring interest-based negotiation (that might be a technical term for what in politics we should just call representative democracy), to Washington, instead of partisan gridlock.  The President's willingness to negotiate should be seen as a strength, not a weakness.

Biography


Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own.  In addition to general commercial litigation, Mr. Markowitz has expertise in  intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation.  Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in  the Central District of California, as well as private mediations.  He has served since 2010 as a board member of the Southern California Mediation Association.   



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Website: www.mediate-la.com/

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