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JAMS ADR Insights

Alternative Dispute Resolution

Washington Could Use A Little More Mediation

By Chris Poole and R. Wayne Thorpe, Esq.

Most of us were at least slightly frustrated by Washington’s inability to reach agreement over budget and debt limit issues in the past weeks and months. In fact this kind of dysfunction and brinksmanship has become more of a regular pattern than an aberration. Clearly the issues are complex as in any political debate and blame can be placed just about anywhere. Perhaps it is time for a little more basic dispute resolution training inside the Beltway. In fact many of the elements of these debates are found every day in the work we do to resolve commercial disputes. Phenomena like the anchoring effect of a proposal, prospect theory and reactive devaluation are regularly at play in congressional debates.

But what happens when one or more parties — in this case Republicans, Democrats, the House of Representatives, the Senate and the White House — say that they won’t negotiate? Or they threaten dire consequences if the other side refuses to negotiate? These situations cry out for a neutral or even just a credible non-neutral mediator.

History has shown time and time again that mediation can be effectively applied to difficult public disputes. When Russia and Japan went to war in 1904 the dispute was eventually mediated by Theodore Roosevelt, who helped craft the Treaty of Portsmouth and won a Nobel Peace Prize for his efforts. More recently, Sen. George Mitchell mediated the Northern Ireland peace process and helped to create the Belfast Peace Agreement. Hon. Daniel Weinstein of JAMS successfully mediated disputes between Serbs, Muslims and Croatians as the U.S. Representative for Privatization of Bosnia.

An October 17 editorial in the New York Times reminded us all that despite the latest agreement to fund the government and raise the debt ceiling, “this doesn't mean the brinksmanship is over.” Deep divisions remain and the current agreements run out very early in 2014.

The past 30 years or more of ADR in the United States have clearly demonstrated that the introduction of a neutral, skilled mediator can help warring parties find common ground and get on with the business at hand. Perhaps it is time to send in the mediators.


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