CLINTON VS. OBAMA: Mediating a Solution to the Democratic Nomination Battle

BACKGROUND


“This has got to come to an end by June. It has to be over and it will be over.” Those were the words of Congressman Rahm Emanuel as quoted in a recent Newsweek article on the showdown between Senators Hillary Clinton of New York and Barack Obama of Illinois. The Senators are the last two candidates for President in the Democratic primary campaign that has raged on since just after the 2006 mid-term elections. Over the last few months, the race has been a dead heat between the remaining candidates from the original field of nine.


In our two-party nominating system, elected delegates from each state attend their party’s quadrennial convention, usually held in the summer before the general election. Delegates are chosen for each candidate according to the results of each state’s primary or caucus. At the national convention, the delegates then vote to formally nominate their party’s candidate for President. Important party figures and elected officials, known as “superdelegates” because of their voting independence, also vote for their preferred candidate. The first candidate to reach the minimum number of delegates needed to nominate (this year 2,024 for the Democrats) wins.


In most previous elections, the nominee has been apparent in early spring by either reaching the minimum delegate threshold or gaining a large lead over all other candidates. That trend continued this year when Sen. John McCain became the presumptive Republican nominee after winning the minimum delegates necessary. However, the Democratic race has been a different story. Clinton and Obama have maintained a very close race for delegates, and many experts say it will be impossible for either candidate to reach the minimum delegate threshold needed to guarantee the nomination. This situation has caused alarm among Democrats who are worried that a long nomination fight will hurt the would-be candidate in the general election. Momentum seems to be an unlikely solution to the Democratic nomination because the candidates are almost tied in total delegates. They are also running neck and neck in the public opinion polls for the few remaining state primary contests as well as the national polling. Party leader Howard Dean plans to let the situation resolve itself according to established party rules. Other senior Democrats have floated possible endgame scenarios, but all have stopped short of endorsing an actual solution. Thus, another process is needed to negotiate an end to the nomination, one through which the candidates’ interests will be explored and fairly addressed. The best process to resolve this conflict is mediation.


INTRODUCTION TO MEDIATION


Mediation is a dispute resolution procedure whereby a neutral third party helps opposing parties explore and resolve their problem on their own. It is different from negotiation where two parties simply attempt to reach an agreement without outside assistance. It is also different from a court proceeding or arbitration where a third party sits in judgment of the dispute and renders a decision that binds the parties. Mediation is unique because it places the power of resolution in the parties’ hands while utilizing a third party who favors neither side but rather helps them explore the problem and come to an agreeable solution. Mediation has several advantages. It is confidential and inexpensive (in more ways than one). Everything that happens in mediation remains confidential including the agreement, unless the parties agree to make any part of it public. Mediation also takes up less time and resources than other resolution methods, as there is no formal discovery and lawyers usually play a smaller role in the process. Should parties in a mediation not reach agreement, little would be lost except for the relatively minimal time and expense of the parties and the mediator. Further, facilitative mediation is flexible and transformative in which the parties find a solution through increased clarity and understanding. Parties can often turn a zero-sum game into a win-win situation and maintain a positive relationship for the future. Another form is evaluative mediation in which the mediator gives his or her own opinion on the case to help the parties understand possible outcomes. It is often used after the facilitative style has proved less than successful.


Senators Clinton and Obama, seeing no other way to resolve the nomination dispute, have reluctantly agreed to try mediation. There are generally five steps to the process: 1) agreement to mediate, 2) understanding the problem, 3) generation of options, 4) evaluation of options and reaching agreement, and 5) implementing the agreement and closure. The remainder of this paper explores how these steps would play out to produce a mutually-agreeable solution.


STEP ONE: AGREEMENT TO MEDIATE


The agreement to mediate is the first step in the mediation process. First, Clinton and Obama will learn what mediation has to offer, select a mediator, and make preliminary decisions such as who will be present for the mediation, whether to make their mediation plans public, and where to meet for mediation. They will also have a chance to ask questions about the process with the mediator to ensure they wish to move forward. Finally, they will sign a mediation agreement reflecting their understanding and acceptance of the ground rules.


In this case, the candidates will first consult with their attorneys who will explain the process of mediation and role of the mediator. A mediator has many roles, including process facilitator, agent of reality, legitimizer of interests, and diplomat. The attorneys will also discuss how this conflict is not legal in nature and thus cannot be resolved through the usual legal channels. The candidates’ political advisors, many of whom are also lawyers, will push the candidates toward mediation so that they may work towards a joint solution that will be best for the party, the candidates, and not likely achieved through any other dispute resolution process. Mediation can facilitate a solution that carries the candidates past this dispute and maintains their political reputations, opens other doors of opportunity, and bridges divides that exist between them and their supporters.


A unique facet of this mediation is its political nature and the underlying cultural implications therein. A political party is similar to a culture – a group of people who identify themselves as sharing a system of beliefs and attitudes and often share similar values. These beliefs and values have developed over time, much like those within a cultural group. And like a close-knit cultural group, members of a political party often exhibit a collectivist attitude in which a higher value is placed on the obligations to and solidarity within the party.


In mediations where cross-cultural issues exist, the mediator serves as a cultural bridge. He or she must ensure that the cultural differences are identified and understood so such differences do not affect the success of the mediation. While Barack Obama is a 46-year old African-American male and Hillary Clinton is a 60-year old Caucasian female, whatever ethno-cultural differences that exist will be less important in this mediation than their shared cultural identifications as Democrats. The mediator should not only acknowledge the collectivist aspect of this dispute, but he or she should be someone familiar with the group dynamics of the Democratic Party in general and this primary campaign specifically. Having a mediator who is knowledgeable with the subject matter makes for a more efficient and comfortable process when dealing with collectivist issues such as an intra-group dispute.


After electing to move forward with mediation, the candidates agreed on former Vice President and presidential candidate Al Gore to serve as mediator. He is a good choice because he has stayed neutral throughout the primary campaign and is trusted by both candidates as a knowledgeable and fair third party to help them facilitate a solution. They also agreed on Gore’s Tennessee estate as the location because it provides a comfortable and low-key environment. Clinton and Obama have decided that political advice from their campaign teams will be unnecessary because in mediation they must make the final agreement and live with it. Thus, participation was limited to the candidates, their lawyers, and Gore, with the understanding that other parties may be invited if needed during the process.


Gore gave his opening statement, reiterating his commitment to neutrality and setting the tone for a fair and open mediation. By doing so, he began to earn the parties’ respect as a mediator and established an initial rapport within the mediation. He discussed the structure of the meetings including joint and private sessions, the confidentiality agreement, and other logistical concerns. The parties agreed with Gore to keep the decision to mediate secret to avoid media interference. Clinton and Obama thus formally decided to mediate and memorialized their understanding by signing a written agreement. The first joint session then began.


STEP TWO: UNDERSTANDING THE PROBLEM


The first step in understanding the problem is allowing each candidate an opportunity to provide their side of the facts while the other side listens. Although he does not discuss it openly at the start, Gore will form his mediation strategy around “principled negotiation” in an effort to achieve the best solution for everyone involved. Principled negotiation focuses on the problem rather than the people, their interests rather than their positions, options for moving ahead, and objective criteria for judging possible solutions. He believes that using these simple principles will help him keep the candidates on track towards a workable agreement. Because Sen. Obama is ahead in the delegate count and has also won more states, he will act as the “complaining party” and go first with his side of the story. Gore will use active listening techniques to try to distill both candidates’ underlying interests from their stated positions.


Obama lays out the story of the nomination process as he sees it. He talks about the results of the early primaries and caucuses and talks about Super Tuesday where over 20 states voted. He also discussed the states that have voted since, emphasizing his victory in more states than Clinton and his lead in total popular votes. He explains that he has brought more people into the process. He has gained support from young voters as well as independents and some Republicans. He believes the country needs a fresh start and that he is simply the voice of a movement of change. He entered the race only after a groundswell of support for his would-be candidacy. At this time, he has invested much time, energy, and money and believes he has the stronger position because of his overall lead. Obama’s position is that he should be the Democratic nominee for President.


Next, Hillary relates her side of the story. She says that she has the experience to be ready to lead on day one, experience not shared by her rival. She has been committed to public service for her entire career. She spent eight years working substantively as First Lady while her husband was President. She has also served the people of New York as Senator for almost eight years. While she concedes being slightly behind in the delegate count, she emphasizes her wins in big states as evidence that she is the stronger candidate. She rebuts Obama’s argument that he is the “change candidate” by asserting that she has the experience necessary to effect real change. Her position is that she should be the Democratic candidate for President.


Gore listens intently to both sides as they assert their positions and arguments. He uses active-listening cues such as nodding, leaning toward the speaker, and maintaining eye-contact to build rapport and show that he is genuinely interested in what each candidate has to say. Following their opening statements, which the candidates both gave without input from their attorneys, Gore began to use the reframing technique to further explore the problem and each position. Reframing is a way of clarifying what is being said by using neutral language and focusing on the problem rather than the people involved. The elements to reframing are 1) listening to the substance, 2) voicing it back neutrally, 3) checking back with the party, and 4) keeping it short. By combining active listening and reframing, Gore is able to properly acknowledge both candidates’ arguments while keeping them grounded in the reality of the current predicament. He recaps their positional statements by saying that while both candidates have good arguments, only one of them can actually be the Democratic nominee this year.


Gore knows that the next step is problem clarification which he wants to pursue through interest-based bargaining. To build consensus, he first asks both parties to identify the one interest that trumps all in this presidential election. Both Clinton and Obama agree that the central interest is electing a Democrat as President this year. But Clinton quickly adds that she is the stronger candidate to achieve that goal. Not to be outdone, Obama retorts that he is not only more electable, but that he is winning the race and that Clinton probably will not catch him in the numbers game. Gore can tell that he will have to put more effort into finding common interests.


Gore also recognizes the need to discuss power in mediation at this point. Both parties are politicians who are accustomed to wielding substantial power within the government and political spheres. In this mediation, Obama believes he has the stronger bargaining position, while Clinton derives her sense of power from her more senior status in the Democratic Party hierarchy. Gore realizes that the perception of unequal power in mediation can become a roadblock to a mediated agreement. People who view themselves as holding more power often have less interest in accommodation or compromise. This case is unique in that both parties outwardly claim to possess greater power. There are a few ways that Gore can address this, including changing the environment if necessary, discouraging coercion, and encouraging the parties to be better listeners. Focusing on common concerns is another way to overcome power issues and increase the chances of a successful mediation.


Through further questioning in the joint session, Gore explores each candidate’s interests. Identifying interest is an important step toward understanding the conflict. Clinton reveals that because of her age, this is probably her last chance to become President because her political clock is ticking down. On the other hand, she believes Obama’s relative youth affords him the opportunity to have a much longer political life. She also makes the point that in the last two elections, the Democratic candidates have not managed to mount a comeback after losing. She says that if Obama lost as the nominee this year, his political future might be in jeopardy.


Her other interests include having the opportunity to further important policy goals such as universal health care and strengthening the economy, goals she feels constrained in achieving as a Senator. She also thinks her husband, former President Clinton, has much to offer and should be utilized to help mend international relations. Finally, regardless of the outcome, she does not want to be perceived as the “bad guy” after this nomination fight is over.


Obama also shared some of his underlying interests. A central interest for him is moving past partisan bickering and achieving progress through compromise and collaboration. He truly feels that he has become the voice of a movement of change that is sweeping across the country. He is worried that if he is not the nominee this year, the movement will not attach to Clinton’s candidacy and will fade. He acknowledges having more of a political future because of his younger age, but argues that an opportunity like this may not come alone again in his lifetime. Also, he has an interest in engaging youth voters, which is important to grow the Democratic base and counteract what he views as apathy and inaction among younger generations.


STEP THREE: GENERATING OPTIONS


With a better understanding of the dispute and each candidate’s position and interests, Gore now suggests moving into separate sessions to explore the third stage: generating options. First, he emphasizes that the objective of this part of the mediation is simply to develop potential options, not to evaluate or predict outcomes. He tells the candidates that the mediation will not be affected by the order of the private sessions, and they agree that Clinton will go first.


Prior to starting the first private session, everyone takes a short break. Gore takes some time to reflect upon the possible approaches to option creation. Facially, this case seems to be a zero sum formula: one candidate will become the nominee and one will not. In determining solutions, a distributive approach is often favored in mediation where the proceeds, property, or rights in issue are divisible among the parties. However, in a situation such as this where parties are engaged in a dispute over one very fixed piece of pie, there can be no distributive solution. If a solution is to be achieved, it is likely to be found through an integrative analysis. An integrative solution is one that fuses positions and interests to “enlarge the pie” and create possible outcomes and options that were not previously considered by the parties. An integrative solution depends on identifying interests and shaping options around those underlying concerns. Gore will pay careful attention in the private sessions to see if such a solution seems possible.


In the private sessions, Gore soon notices several examples of unhelpful behavior that fall within the three categories of conflict-resolution barriers. Those categories are 1) tactical or strategic barriers, 2) psychological barriers, and 3) organizational or institutional factors. Clinton comes back from the break reasserting her opening arguments and taking a hard line. She again asserts her interest in timing – which is that she should be the nominee this year and if she loses, Obama will be guaranteed the nomination in four years. Gore knows that hardball tactics can be a barrier that causes a breakdown in communication and hinders mediation. So, he reminds her of the central objective upon which she and Obama agreed – to have the strongest candidate this year – and that only one of them can be it.


Gore thinks that Clinton is trying to avoid looking vulnerable by sticking to her story. Acting as the agent of reality, he reminds her of Obama’s lead and asks her to consider options other than being the nominee. Gore asks Clinton to imagine what the possible outcomes of this mediation might be. She suggests that there are several: a joint ticket with her at the top, a joint ticket with Obama at the top, or her being the nominee and Obama continuing in the Senate or other high office. Gore senses that she has a possible interest in a possible unity ticket and, by revealing it, has “enlarged the pie” of possible outcomes. Clinton makes clear, however, that she does not want Obama to think she is open to being his Vice President.


To keep the separate sessions relatively short, Gore begins the session with Obama who immediately reveals a new interest that seems promising: saving the Democratic Party from hurtful disunity. Gore is encouraged by this openness and asks Obama if he has considered options other than becoming the nominee. To Gore’s dismay, Obama says that he will not lose this nomination no matter what, and that Hillary would not be able to unite the party as he would. Gore believes Obama’s attitude seems to be based on loss aversion, which means that Obama has placed too much weight on the possibility of losing. Because of this aversion, he has dug in his heels and thus not considered options other than being the nominee.


To overcome loss aversion, Gore seeks to reframe the status quo by further exploring Obama’s interests. He finds out that what is most important to the Senator is not becoming President, but rather his wife and two young daughters. He is close to his family and has regretted not being able to spend more time with them because of the hectic campaign schedule and his duties in Washington. Gore believes that a potential option might be a joint ticket with Clinton on top, but reactive devaluation would occur if this option were presented directly from Clinton to Obama. Reactive devaluation means that certain options which may be otherwise attractive would mean less and be rated less favorably if presented by an opposing party. Following up on Obama’s interest in family time, Gore asks Obama if he had considered being Vice President on a joint ticket with Clinton. By presenting it in this way, Gore has ensured that the option will be considered only for its substance rather than as one of Clinton’s suggestions. He related his personal experience as Vice President – a substantive and very visible role in both the executive and legislative branches (as Senate President), much more family time than the President, much less stress than being President, and the opportunity to gain experience. By presenting this option in a different light, Gore is able to play the role of educator. After some consideration, Obama said it might be one option to consider.


Obama also said that he should be the nominee because he is guaranteed to win the Presidency, according to his campaign team and recent polls. He thinks his staff and biggest supporters would never let him concede the nomination to Clinton. Gore identified this as “optimistic overconfidence,” a type of organizational barrier to successful mediation. To overcome it, he asks whether Obama’s staffer’s interests line up with his own. While Obama thinks his staff believes in him as the best candidate, they are probably self-interested to the extent that their success as political operatives largely depends on Obama being the nominee and eventually the President. By bringing out this principal-agent conflict, Gore convinces Obama to place less weight on the pressures to win from within his own campaign.


To close the option generation phase, Gore wants to bring to light another type of principal-agent conflict in this dispute. He recaps the candidates’ positions of fighting to the end and winning the nomination, but reminds them once again of the conceded common interest of the Democrats winning back the White House. He also plays a voicemail left on his phone from Democratic Party chairman Howard Dean. The basic point Dean makes is that McCain will win and the Democrats will lose this year if the Democrats remain divided for much longer. This message highlights the principal-agent conflict between Clinton and Obama’s steadfast objective of winning the nomination and the larger Democratic Party’s interest in choosing a nominee and coming together for victory in November. By bringing Dean “to the table,” Gore is able to bring this politico-cultural conflict into the open and address it as a shared collectivist concern.


STEP FOUR: EVALUATION OF OPTIONS, REACHING AGREEMENT


Gore says he wants to move to the next stage and start to evaluate options. Back together again, Clinton and Obama each say that they will accept nothing less than the nomination. In an effort to head off impasse, he takes a few strategic steps. First, he threatens to end. He asks them both to consider the effect of a failed mediation and a prolonged nomination fight that leads to a divided party and a Republican victory. He also invites them out to his back porch where the cool evening air is blowing as the sun sets on a beautiful Tennessee landscape. By reminding them of their shared interests and changing to a more comfortable environment, he cools relations and overcomes a possible impasse.


In the evaluation stage, Gore often refers back to the candidates’ stated interests so that all options can be judged against those interests rather than their static positions. Gore then presents several possible options: Clinton or Obama as nominee with no concessions to the other; joint ticket with Obama on top and guaranteed Cabinet position for Bill; joint ticket with Clinton on top and specific substantive roles for Obama; Obama as nominee with guaranteed Cabinet positions for both Clintons; and finally, Clinton as nominee with guaranteed Cabinet position or Ambassadorship for Obama.


The candidates believe that these are logical options, but Clinton asserts that another option is to leave mediation and allow the nomination process to play out on its own. Gore then asks them to consider the best and worst alternatives to a negotiated agreement through mediation (their BATNAs and WATNAs). They agreed that the best alternative would be if the nomination process ended with one of them as the clear winner and the party remained united. The worst alternative would be if there was no clear winner, infighting erupted within the party, and the debacle caused the party to lose the general election. Gore next asked them to evaluate their BATNA and WATNA according to some objective criteria, such as the delegate count and current polling numbers, all of which remained very closely divided. Judging by those criteria, their WATNA (disunity and defeat) seemed statistically more likely than their BATNA (a fairy tale ending).


To continue moving forward, Gore seeks to quell the psychological impediments to option evaluation by orienting toward the future. He again reasserts Dean’s earlier message and their common interest of bringing the party together to elect a Democrat as President this year. He then asks Clinton and Obama to discuss each other’s perspective in this dispute. This role-reversal technique helps Clinton and Obama to better understand the other’s underlying interests and prepares them to attempt reaching agreement.


Gore employs the use of “lateral thinking” techniques. First, he hands out dry erase boards and describes the first technique, “fractionation,” as a way to chart out options and perceptions so as to visualize the possibilities. He charts out the options previously described, and they each give input as to how the chart should look while they note their perceptions by scoring each box. Next, he describes using “repatternings” as creating different combinations of options and interests through the use of “what if” questions. They each first ask, “What if I am not the Democratic nominee for President?”


Using evaluative techniques help the candidates explore new alternatives based on their stated interests as well as the collectivist interests of the Democratic Party. After working through the techniques and taking a break, the candidates decide on a solution: a joint ticket with Clinton as the nominee. They believe that this solution best achieves their stated interests. Clinton will be able to put her White House and Senate experience to use addressing major policy initiatives. She will also be able to use former President Clinton as a roving ambassador as she wished. Her interest in pursuing her last big political opportunity is also met, as is her interest in not being cast as the “bad guy” for staying in the race and forcing a split decision.


For Obama, this solution addresses his interest in a safe political future. Even if they lose in November, he will be in a strong position to run again in four years because of the perception that he put the needs of the party ahead of his own this year. If they win in November, Obama’s interests will also be met. He will gain experience through a substantive, very visible national role and still have more time for his young family. Further, they agree on a few conditions to effectuate the agreement. To meet Obama’s interest in systemic, post-partisan change and more youth involvement, the candidates will collaborate closely on a message of unity, positivity, and pragmatism. This solution also addresses the candidate’s shared collectivist interests of a strong, united Democratic Party and an earlier start to the general election campaign to increase their chances for victory in November.


STEP FIVE: IMPLEMENTING THE AGREEMENT, COMING TO CLOSURE


After agreeing on a solution, the final step is to determine how the parties would like to implement their agreement and move forward. Believing that the details of the process would be an unwanted distraction to their ongoing campaign, Clinton and Obama agree to keep the mediation itself confidential. Instead, they will work with their closest advisors to design a public relations strategy around a public announcement. To close the mediation, Gore asks the candidates’ attorneys to type up a brief settlement agreement for the candidates to sign.


CONCLUSION


In this complex situation, mediation succeeded in facilitating a negotiated agreement between two powerful parties with entrenched personal and professional interests. It did so while also addressing the “cultural” dynamics of political party association. Through a facilitative approach and interest-based bargaining, Al Gore as mediator drew out the candidates’ underlying concerns and desires. His neutrality, along with his use of active listening and reframing to establish rapport, created an environment of trust within the mediation. He used common mediation techniques to shift focus from the people involved to the ultimate problem at issue: a presidential primary with no apparent winner and no end in sight. By “enlarging the pie,” Clinton and Obama discovered options that did not seem previously possible. And, by employing “lateral thinking,” they were able to evaluate the possible options using objective criteria. The elements of “principled negotiation” thus led to another successful use of this valuable dispute resolution device.

                        author

Matthew J. Bailey

Matt Bailey is a third-year law student at The George Washington University Law School in Washington, DC and will graduate this May. An aspiring mediator, he recently completed a course in Mediation taught by professors and local practitioners Carolyn Lerner and Amy Wind. Matt will start his career working as… MORE >

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