Opinion

I’ve mediated my share of disputes. Here’s how to end the shutdown

The issues here are not as complicated as people want to make them

Senate Democrats, carrying large photos of federal workers affected by the government shutdown, walk down the Capitol steps to call on the president to end the shutdown. (Bill Clark/CQ Roll Call)

OPINION — Take it from a professional mediator: Both the president and Congress have engaged in bad bargaining practices. They have said and done things that create obstacles to reaching agreement on a Southern border “wall” and on ending the government shutdown. Of course, political considerations are diverting each side from making a reasonable compromise. But without compromise, each sides’ political standing will suffer.

What’s gone wrong, and how can the process of resolving such disputes be made to work? As a labor-management negotiator and mediator in hundreds of disputes, I have some ideas. Here are 7 basic tenets of bargaining that are essential to the process have been totally ignored and violated:

Do not exercise leverage unilaterally before bargaining has run its course. Ultimatums at the outset of bargaining are no way to reach agreement. The president took unilateral action in shutting down the government after Congress refused to bow to his demand for $5.7 billion for a wall. In any negotiation likely to succeed, the assumption is that neither party will act unilaterally until bargaining is concluded. Shutting down the government while the border security “wall” issue is being discussed is one such a premature unilateral action that undermines the good faith necessary to reach an agreement.

Do not take “final” positions at the start of a negotiation. Throwing down a gauntlet and declaring “it’s my way or the highway” at the outset of negotiations is counterproductive. Congressional leaders reacted to the president’s unhelpful action by taking their own extreme position declaring “zero” appropriations for a border wall. $5.7 billion versus $0, “take it or leave it” bargaining is patently not in accord with good faith negotiations. It makes any compromise look like failure for both sides. The parties should articulate their “interests”(articulated reasons for wanting something) — as opposed to a hard “position” (demanding something) —  which can provide the basis for dialogue and can build towards a solution.

Do not go backwards. Resolution is reached by closing the gap between the sides, not creating an even greater distance from the other side. The president had initially agreed to the Senate’s $1.6 billion compromise appropriation but, after apparently hearing from supporters, later retracted and insisted on $5.7 billion, a figure over three and a half times higher. Critics who insist from the sidelines that their principal take an extreme position may be expected to throw bombs, but if an agreement is to be reached, they must be disregarded.

Expand the pie. $5.7 billion versus $0 is a win-lose proposition. Both parties have their feet stuck in cement. Adding elements to the debate would allow for tradeoffs that make face-saving possible. Introducing DACA, funds for asylum adjudications and other aspects of immigration reform could enable compromise and resolution.

Seek incremental change. Even if the “wall” the president seeks was agreed to, it would take years to build — so the parties could compromise and come back for more (or less) in future appropriations years. In labor management bargaining, patience is a virtue. Getting a “foot in the door” is certainly better than nothing, because it establishes a base on which to build in the future (but must be justified then).

Find common ground and build from there. Both sides have expressed agreement with the virtue of “border security.” Some form of extension of existing hard barriers can surely be justified as legitimate by the Democratic leadership in the name of border security. The timing of expenditures and the type of barriers are areas ripe for compromise. Based on common goals, the parties can focus on how to get there. Once the details and complexity of a dispute are examined closely, both sides are often able to identify fixes that achieve their common goals. This is how the legislative process is supposed to work. “Regular order” in Congress begins with committee hearings getting to agreed facts, also a core precondition to effective negotiations. Out of such discussions a synthesis of reasonable ideas could have been formulated. The issues here are not as complicated as people want to make it. There is a way to work through it. Common sense and reason should prevail.

Choose a key player to act as a mediator. Where parties are at an impasse, a third-party neutral is often useful to move the parties forward. Senate leadership got the initial funding bill passed. They, or a key swing group in Congress, could step in and at least reopen the federal government and initiate a broader discussion on the long-term issues. Sometimes the first deal is the best deal. External events and subsequent repercussions are unpredictable. As things have devolved, returning to the initial compromise may be the best outcome for both sides.

Numerous issues are on the 2019 legislative table, such as badly needed infrastructure repair and improvements, veteran benefits and health care reforms. This first example of bad bargaining practices on a border wall will hopefully instruct the parties to use more constructive approaches in the future to address the nation’s problems. Otherwise nothing will get done at great cost to the public’s health and security, to both political parties and to their ability to work effectively in the future.

Joshua M. Javits is a neutral mediator and arbitrator. He is a member of the National Academy of Arbitrators and is on its board of governors. He was previously chairman and member of the National Mediation Board, grievance chair for the International Monetary Fund and president of the National Association of Railroad Referees. As an advocate, he represented unions and management at different times. His father was Sen. Jacob Javits of New York.

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