The Politics Of Professional Mediators: Are We As Neutral As We Pretend: A Rejoinder To Critics of ‘Obama As Negotiator in Chief’


by Robert Benjamin

January 2011

Robert Benjamin The Comments thus far received on “Obama As “Negotiator in Chief”” (www.mediate.com//articles/benjamin52_obama_negotiator_in_chief.cfm, January 4, 2011), not unlike many responses previous articles I have written on negotiation and mediation politics, have been decidedly negative with some writers being so riled as to personally attack my motives. Because the posts are on Mediate.com, I assume they are from conflict management practitioners, but have no way of ascertaining that fact. On one level their responses seem surprising for people in the field, presuming they have given greater thought than the general public might, to the need to be especially rigorous in not attributing negative intentions and motives to others. On another level, however, their comments are not all that surprising; mediators and negotiators are, after all, human. Notwithstanding that startling observation, however, many mediators seem to feel that their claim to “neutrality’ is somehow contaminated if their professional work is brought close to any discussion of politics---even if 98% of politics involves negotiation.

Of course, separating out personal feelings from an analysis of the negotiation process is difficult in the political context. Arguably, however, it can be done and is worth doing just because it is difficult. It requires examining all the more closely that intersection of personal bias and professional approach and technique. Professional mediators’ disinclination to think critically about what takes place in political negotiations may result from them being taken out from behind their cover as professionals. In addition, I also suspect many mediators secretly share the widespread skepticism of negotiation that is ingrained in the larger culture. Negotiation, especially in difficult matters, is seldom the reasoned, collaborative process that many want it to be, or is commonly taught.

I don’t except myself; in fact, the reason I wrote about the political negotiation process between Democrats and Republicans during the “lame duck” Congress at the end of last year because I was struck by my own difficulty examining the negotiation in light of my personal feelings about the ‘right’ outcome. I found my response to be a useful object lesson and opportunity for reflective practice as I struggled with how I might manage negotiations should I be called upon to work as a mediator?

More than a few comments have suggested that negotiation and mediation in the political sphere has little or no relevance to the work of professional mediators engaged in managing disputes in the business, family, workplace, or other contexts. Some see a ‘bright line’ distinction between the presumed “hard ball” negotiation style of politicians and the more humanistic, principled, reasoned, and collaborative processes commonly espoused and taught in most law schools, graduate programs and professional dispute resolution training courses. At the same time, there is no denying that the same kind of theatrical posturing, positional thinking and claims or ideological or moral superiority, attempts to control and overpower the other party, the issuance of ultimatums and sometimes, downright threats, common to political wrangling, are present, in varying degrees, in most negotiations.

I suggest more realistically that negotiating and managing political matters is little different than managing issues in any other dispute context. The theory, approach, strategies, techniques and requisite skills are essentially the same. First, before anything else, an effective mediator must be able to sufficiently entice the parties into the negotiation process. Sometimes appeals to self interest work, other times, and a threat might be necessary in order to bring them into the room. Next, the mediator must be able to engage each party sufficiently to gain a measure of trust. Finally, he or she must be able to shift the frame of the discussion to allow for some measure of a workable agreement to emerge. (Benjamin, R.D., “Guerrilla Mediation: The Use of Warfare Strategies In the Management of Conflict,” 1998, in The Guerrilla Negotiator, CD Rom, 2004)

Political disputes, just because they are so difficult and require dealing with hard scrapple situations where the people involved often act out of their basest motivations and with the worst of intentions, offers a valuable terrain in which to study and test the viability of our theories and strategies of negotiation and mediation. Conversely, those in professional conflict management might be able to tailor their work and develop an available market in the political arena. Some of this is being done by those in the environmental and public policy dispute context, although it is hard to assess how much of a foothold is actually being gained.

Curiously, many professional mediators remain resistant and disinclined to believe that negotiation can be or should be considered when there are fundamental value differences or the motives and trustworthiness of another party is in question. One recent comment asserts that “sometimes you cannot compromise your values,” ....and, that (Obama) is a “crooked and sinister politician...dirtier than Al Capone,” and therefore negotiation is not possible and should not be pursued. This “sinister motive” view, where a pre-assessment of the parties’ motivations is required before mediation can even be considered. The process is considered by many to be problematic in matters such as “bullying,” child and spouse abuse, and certainly where terrorism or piracy is concerned. In addition, in recent years, the role of the mediator has been saddled with the duty to ascertain the parties’ “good faith” participation in the process.

Another comment received (posted on Mediate.com), straight out questions my motives in writing an article about political negotiations and assumes the piece is nothing more than a thinly veiled attempt to further my own political agenda and has no place being posted on a web site that caters to professional mediators and conflict managers.

“The writer rather summarily blows off the results of the lame duck session (“Notwithstanding the last minute accomplishments…”) which actually seem pretty impressive. I submit, however, that the writer exaggerates the effect HE could have -- due to his superior training and deft negotiating abilities –- were he in the President’s place. Could it be that the writer is making a complaint that the President is failing to “get as much” as the writer wishes he would of what is the writer’s personal political agenda?”

While I admit to having been alternatively frustrated, conflicted, pleased and angry as the negotiations on the issues unfolded during the ‘lame duck’ session, and what happened behind closed doors came to light, I never presumed I could do better. Not unlike how an avid football fan dutifully anguishes over every play of the game in their role as an armchair quarterback, I merely obsessed, as a negotiator, over what I thought made sense and what did not. I will not, however, relinquish my right (and duty) to review and critique and comment on the negotiation ‘plays.’ In fact, if more attention was given to the study of negotiation strategies, techniques, and skills, not only might practitioners benefit but a greater level of public understanding and acceptance might result. The negotiation process is seldom brought out from behind the curtain and discussed; most commentary is limited to whose view or policy is the right one. If negotiation strategies were discussed like football, not only would it be good marketing, but people come to understand the value, importance and necessity of deal making in a complex world.

I am not as much arrogant than I am obsessively fascinated with the negotiation process. A particular issue that intrigues me and seems to largely go un-noticed is the deep and abiding ambivalence many people have about negotiation. Despite the fact that negotiation makes sense, many still think compromise is still a dirty word and the notion aligned with selling out their principles. In a techno-rational culture such as ours, where many believe there is a reasoned solution, right answer or cure to every problem, and the truth is determinable, negotiation is seen as tantamount to selling your soul and doing a deal with the Devil. (Benjamin, R.D., “Negotiation and Evil: The Sources of Moral and Religious Resistance to the Settlement of Conflict,” 1998, in The Guerrilla Negotiator, CD Rom, 2004) That view was clearly part of the second guessing that went on in my critique of the political negotiations last month.

The most recent comment appears to question the open discussion of the core issue those in the field of conflict management face daily: the general resistance many people have to negotiation and mediation. Note, for example, during the recession many states have tried to develop mortgage mediation programs to stem the tide of home foreclosures. No matter how sensible and well intended the idea of mediation might be, however, those programs have not been especially effective or well utilized by homeowners. While there are many structural reasons for this, one commonly reported is the publics’ distrust of negotiating with the lenders or banks involved. Whether because they are overwhelmed, or the bank has hopelessly confused the process, many have expressed being leery and fearful of negotiating on their own. (Benjamin, R.D., “Mediation is a Gamble”: A Sobering Critique and Review of Mortgage Mediation Programs,” (www.mediate.com//articles/benjamin51_foreclosure_mediation.cfm, November, 2010) The resistance to negotiation is age old and extends to peoples’ consideration of mediation in every dispute context, from family and divorce matters to business issues. Any good marketing plan to sell mediation must take account of this resistance and plot approaches to mitigate. Nonetheless, this comment appears to prefer a “head in the sand” approach:

“I can't believe this is one of Mediate.com's featured articles. I stopped reading at "...the sleazy work of negotiators in general and politicians in particular." Do we really need a mediator to add fuel to the fire?”

The complete sentence from the article, offering context, does not suggest, as the writer intimates, that I believe negotiators and politicians are sleazy, but rather, merely notes the measure of resistance to negotiation many in the general public begin with. It reads as follows: “To the extent that President Obama appears to “lay his cards on the table,” pretending on one hand to be open and transparent, while on the other hand compelled to do a deal, he opens himself up to greater criticism and the public at large is aided in reinforcing their already considerable dislike of the sleazy work of negotiators in general and politicians in particular. “ While I am disappointed the author of this comment chose not to read further, I am unfortunately, not surprised.

The media gives virtually no attention to discussion of the negotiation process, preferring instead to do sound bites about which political party or player’s position is right or wrong. It is no surprise that the parties hesitate to negotiate and if they do, don’t want to openly admit to doing so---they risk appearing like weak, unprincipled sell outs. However, for professional mediators and negotiators to deny the relevance and value of studying the process of political negotiations makes no sense. It is at the very least a tacit admission that they themselves distrust the efficacy of negotiation and mediation in managing complex issues---including political ones.

I admit to having strong feelings about the political issues in controversy; I don’t admit to having attempted to disguise my political agenda in this article. The only agenda I have that is even stronger than my political leanings is the one dedicated to strategizing how to make mediation and negotiation more apparent as viable, effective, realistic and constructive modes of conflict management in our society in every possible context where there are issues and disputes to manage.

Mediation cannot be reserved only for certain rarefied circumstances where the matter involved is of the right kind and the parties are pre-qualified as sufficiently reasonable, collaborative, and trusting; it must be shown to be workable in the political street fighting that occurs day to day. In hard disputes, the mediator can’t afford to be a distant and removed neutral that is above the fray. In mediation, as in politics, the mediator must be engaged on every level and wholly focused on drawing workable agreements out of messy realities. How that process unfolds is a subject of endless fascination for me. Rather than something that should remain hidden, it is the best selling point of negotiation and mediation.



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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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