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by Joe Markowitz
May 2017

Mediation's Place by Joe Markowitz

Joe Markowitz

This week Congress appears poised to succeed in passing a budget, a feat many were not sure was possible in these partisan times. Budget negotiations were a subject I took a strange interest in during the Obama years, when all the talk was of whether the president was able to make his promise of post-partisanship work. President Obama was alternately criticized in budget negotiations for being too conciliatory toward the opposition, or too unwilling to work with Congressional Republicans, while Republicans were alternately criticized for being too obstructionist, or too unwilling to stand up for their principles. Whatever the merits of these conflicting criticisms, many political prices were paid during those years, but the government somehow managed to muddle through and continue to function.

In the analyses of this week's budget deal, whether from the politicians of both parties or from the pundits, mostly we are hearing about which side scored the most points. Did Congressional Democrats put one over on the Republicans by keeping many of their pet programs away from the budget-cutters' knife, and refusing to fund the border wall,or did the Administration and its Republican allies win by achieving many of their new spending priorities, such as an increase for the Pentagon and for border security?

In the age of Trump, it's not surprising that we are using Trump's own criteria of winning, instead of even paying lip service to the values of finding common ground and serving democracy. But I would suggest that this is entirely the wrong way to look at a budget deal. Nobody is going to be satisfied with an outcome that is scored based on who won and who lost, because both sides in the deal have to recognize that they gave up some ground. Both sides are already talking about gearing up for the next battle. And both are going to try to prevail in future battles by winning more seats at the expense of the other, the only way to win in this zero-sum game.

Instead of so much focus on winning and losing, we should be talking about how well (or perhaps how badly) the new budget serves the competing interests of various constituencies. We should be celebrating Congress's ability to put together a bi-partisan budget that reflects the most important priorities of both sides in these debates. Republicans won the last election; it is entirely legitimate that the new budget reflect their somewhat different priorities. But Democrats remain powerful in Congress, which Republicans do not control by a sufficient margin to hold sway on all issues. So it is also entirely legitimate that the new budget also reflect the most important priorities of Democrats. Leaders on both sides of the aisle should be applauded for recognizing political realities and engaging in the time-honored game of horse-trading. And the American people should be thrilled with an outcome that gives power to voices across the political spectrum. Passing a budget through our system of checks and balances, in the midst of a very partisan political atmosphere, represents a triumph of democracy, as well as a triumph of negotiating.


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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