Health Insurance Reform: Giving The Devil His Due the Importance of Back Room Deals, Dirty Politics and Subversive Negotiation


by Robert Benjamin

March 2010

Robert Benjamin

It’s the morning after and I have a ‘hangover’ from watching the twist and turns leading up to the US Congress’s passage of health care reform. As a negotiator and mediator this theatre of real life easily competes with the staged versions and is my recreational drug of choice. Where else can one be contorted one moment by the looming tragedy of defeat, and next moment doubled over by the comedic antics (mostly unintended) of the actors? The element of surprise was ever present, not knowing what the outcome would be. In this play, as in almost all of the best conflict dramas, real or imagined, none of the characters are purely good of bad people, and few are rational actors. Only we in the audience have the luxury of pretending to be rational. The meandering of this health care legislation climaxing with the vote last night, has been a spectacle that abounds in valuable lessons and teachable moments for those of us engaged in conflict management work. Ongoing for better than a century, the current act pronounced dead on arrival less than a month ago, denounced as a conspiracy to for “socialist Nazis to take over the government, the only feeling it has failed to stir is complacency.

I suspect that my political leanings are already apparent. Having shepherded too many clients through bankruptcy because of medical bills, personally having been denied health insurance based on the all too common pre-existing condition of high blood pressure, and knowing some who have died for lack of available treatment, has cured me of the belief that health care can adequately be delivered in the free market system as just another commodity retailed by private insurance companies whose primary motive, if not sole purpose, is their financial profit, not my health.

Some have strongly criticized my past articles where I have observed the similarities between mediation practice and effective leadership using President Obama as a case study. (Benjamin, R.D., “The Obama Presidency and the Future of the Conflict Management Business: The Mediative Leader and the Activist Mediator,” http://www.mediate.com//articles/benjamin42.cfm, Nov. 2008) Those critics believe mediation work can and should be wholly separate and detached from and untainted by politics. The mediator, they feel, as a ‘neutral’ is presumably capable of playing a professional role of being objective and above the fray. By contrast, I believe that negotiation is the blood of politics that every negotiation is political, and that mediator’s best work is done with recognition and use of those biases, not denying their presence. Conflicts and difficult issues, regardless of the context in which they crop up, whether in personal, business matters, the workplace, schools or in health care, happen in the shadow of the reigning politics. Politics of some kind, not necessarily Democratic or Republican but how people organize themselves, think other people should act, deal with issues and make decisions, are always present and cannot be ignored. And mediators or negotiators can not come into any dispute without bringing with them their own political leanings about how they believe disputes should be settled.

The core lesson of the resulting health insurance reform legislation is the most difficult for most people in general and not a few professionals to learn. Like most deals that have been negotiated over the centuries, the perfect agreement cannot be allowed to become the enemy of the good, or in this case, the enemy of even the barely adequate. The technical policy wonks are given the luxury of rationally analyzing, devising, and proposing the perfect solution in a vacuum. In this case, like in most, they are left to shaking their heads in disbelief as those proposals are hacked and cannibalized beyond recognition in the political grinder. The 2000 plus page health insurance reform passed last night, for many, can not pass the laugh test. Most legislators have never read in its’ entirety, and fewer still, understand it. This is not unlike the parties in a moderately complex divorce, where few have read or understand the separation agreement that allocates their financial responsibilities, property division, taxes, and retirement planning. At best, the proponents consider the plan to be half baked at best. Anthony Weiner, a New York Democrat, termed it a compromise on a compromise on a compromise. The single payer plan preferred by a significant minority was never even considered and the of a public option, such as allowing people to buy in to Medicare, was paid lip service but never presented seriously.

For their part, the opponents, while agreeing there is a serious problem with health care, used the common and frequently effective negotiation tactic of “just say no.” In most conflicts there are those who want to maintain the status quo and obstruct or resist negotiating. Strategizing and finding a way to engage them is especially difficult. Sometimes hardball or guerrilla warfare tactics are necessary to motivate people to negotiate, such as creating a plausible risk of loss around the failure to act. The Democrats resort to use of the reconicliation procedure---requiring only a simple majority--- to push through the legislation in the Senate, and later on the threat of using the “deem as passed” tactic in the House of Representatives succeeded in drawing howls of unfairness from the Republicans. However as the present matter suggests, the risk of coercion can create as much digging in as it does, engagement. As the noted conservative columnist David Fromm, has observed, the Republicans have been willing to ‘cut off their nose to spite their face’ and their ‘no-nothing’ strategy may be their undoing and serve only to further marginalize their political party. Knowing, however, that the Democrats are willing to push back may make them more willing to negotiate in the meantime.

The Democratic Party’s legislative strategy and the President’s strategy is also open to question. Specifically, Obama’s over-deference to the legislature in formulating the plan and subsequent failure to more clearly present specific plans created an unnecessary level of confusion. As a leader or mediator, the best antidote to confusion is to generate options that at the very least encourage creative thinking about how to proceed.

Finally, and a touch disingenuously, Republicans complained throughout about the process used to “jam through this legislation. He made much of the lack of the Democrats’ transparency and openness. House Leader, John Boehner complained mightily about the Presidents “backroom and side deals” with Pharmaceutical companies and some health insurance companies, not to mention the “buying” the votes of Senators Ben Nelson and Mary Landrieux in the “cornhusker kickback scheme” and the ignominious “Louisiana Purchase.”

All feigned a carefully practiced pained and hurt look that such dirty and subversive tactics might be used by Democrats in pursuit of their legislative agenda. Even some professional mediators have trouble with such departures from the mythical standards of civil dialogue; most want to believe that the process of negotiation should be approached from a rational and principled interest-needs model. This is where both politics and negotiation garner their tainted reputations as dirty, deceptive activities. This is unavoidable. Where human beings are trying to forge a direction among multiple parties representing varied interests and values, in difficult, complex and emotional matters such as health care, negotiation is the only alternative and that negotiation process necessarily departs from the traditional rationalist ideal. (Benjamin, R.D., “Cloaked Negotiation: Necessary Back-Channel, Under the Table and Surreptitious Strategies and Techniques to Make Deals Work,” Mediate.com, http://www.mediate.com//articles/benjamin43.cfm, Jan. 2009)

Over the centuries, many have associated negotiation with being evil, immoral, and sinful. There is no more apt example of this than the harsh but unavoidable reality this health insurance reform legislative process displays. In Christian theology, Satan negotiates for the souls of human beings. While people grudgingly accept the necessity of negotiation for their survival, it is seldom if ever is done willingly or without reservation, especially in a techno-rational culture such as ours. (Benjamin, R.D., “Negotiation and Evil: Religious and Moral Resistance to the Settlement of Conflict,” inThe Guerrilla Negotiator: Collected Articles, CD Rom, Mediate.com, 2007) The distorted alien creature titled Health Insurance Reform, born of a negotiated legislative process on March 21st, 2010 is one that no policy maker would ever willing adopt as being of his or her issue and it will never win a “most rational” beauty contest. But as a matter of necessity, it may still function and offers a beginning structure for future health care reform.

For my part, negotiation is still about winning and losing and this win has been a long time in coming. It is especially gratifying given that what is at stake is the availability of basic health care for so many people. The noblest cause or best policy is only as good as the negotiation process that brings it into existence.

Speaker Nancy Pelosi had the tenacity to press ahead despite the odds, and single mindedly twisted arms and counted votes. Her style brought to mind the adage especially important for negotiators and mediators to remember, “trust your mother but count the cards.” Negotiation should never be reliant on peoples’ trust and good will, a deal must first and foremost be good business. Likewise, President Obama appears to have finally come out of his mild mannered, cool calm and collected shell, and channeled President Lyndon Johnson. To press for passage of the Civil Rights Act, LBJ understood that he had to stick his finger in the chests of recalcitrant congressman and with rewards or threats, line up the votes when logic and reasoned persuasion were not enough. He was a master of the back room deal.

This legislative victory was not particularly pretty but it makes me feel more patriotic than I have in a long time.

23 March 2010



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Biography




Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care.  A lawyer and social worker by training, he practiced law for over 25 years and now  teaches and presents professional negotiation, mediation, and conflict management seminars and training courses nationally and internationally.  He is a standing Adjunct Professor at  the Straus Institute for Conflict Resolution of the Pepperdine University School of Law, at Southern Methodist University’s Program on Conflict Resolution and in several other schools and universities.   He is a past President of the Academy of Family Mediators, a Practitioner Member of the Association for Conflict Resolution, and the American Bar Association’s Section on Dispute Resolution.    He is the author of numerous book contributions and articles, including “The Mediator As Trickster,”  “Guerilla Negotiation,” and “The Beauty of Conflict,” and is a Senior Editor and regular columnist for Mediate.com. 

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