Checking In With… Mediation Expert Nancy Lesser On Congress’ Current Health Reform Dynamics

To an outside observer, the congressional impasse triggered by the health reform debate may seem increasingly entrenched – poisoned by politics and conflicting agendas. But to a trained mediator, the debate’s dynamics are not so surprising. Nancy Lesser, a principal at PAX ADR, an alternative dispute resolution firm in Washington, D.C., says the term of art used to describe the current scenario is “competitive bargaining.” There is a fixed prize, she says, “be it goodies or benefits or money or a piece of legislation” and each side will push to take as much of it as possible, leaving as little as possible for the opponents. “We call that zero-sum negotiation,” she says, but also adds such battles often end without resolution. The challenge is to find a way to shift the key players’ viewpoints and ultimately move them to a more solution-oriented mindset. “Mediators obviously have lots of tricks up their sleeves,” says Lesser, also an adjunct professor at the Georgetown University Law School and a “neutral” for the American Arbitration Association. But this issue is one that would require an extremely persistent mediator who has a substantive grasp of the issues and complexities in play.

Although Congress does not normally enlist the services of professional mediators to aid in legislative negotiations, KHN’s Stephanie Stapleton recently spoke with Lesser about what mediation methods might be useful, how or even if she sees such techniques now being used in the reform debate and who might be able to take on the task. Edited excerpts follow.

Q: So what would a mediator do to break the impasse?
A: What we try to do, first of all, is to explore not just what the parties are stating they want and not the way they position themselves in the negotiation, but what is underlying their behavior. Everyone who comes to the negotiating table has underlying goals. … They may or may not be obvious. But they often differ from what a party will say they want. So a mediator would … attempt to determine what each [side] is trying to gain … and try to move them beyond their stated positions.

Here, obviously, the administration has pushed hard to pass this bill. The Republicans have pushed hard against it. And it seems that those parties are being very positional, very much “it’s my way or the highway.” But the job of the mediator is to try to find ground for compromise. … To Rahm Emanuel and Nancy Pelosi and Harry Reid — what is it you want? What are your greatest concerns? Let’s tease out what that means. … If the underlying interest of the administration is to get something passed because that’s important, then well, that’s different potentially from getting this particular bill passed. And can they claim victory walking away from the negotiating table even if at the end of the day, as with many legislative debates, they don’t get everything they want. You do the same with the other side. But, of course, the complication here is that not all the Democrats agree. It is not as simple as Democrats versus Republicans. So you really have to analyze all of the various interests. And what the mediator tries to do … is to shift the parties to a more problem-solving negotiation. You try to get [them] to focus cooperatively on what the underlying issues are and what the features are that each sides wants. And that has to happen obviously on multiple fronts because this is an extraordinarily complex issue.

Q: Is there a point where a mediator would throw up his or her hands and walk away from the negotiating table?
A: For some reason, this issue has become so weighted that compromise seems impossible. But … there are many techniques to prevent impasse. One is if you can’t tackle all the issues at once, break them down … first look for small concessions. And then the parties can see that the process can work and you get more buy in and more commitment to [it]. …. Which means the process itself does something to shift parties’ viewpoints.

Q: But when faced with something as complex as the health reform debate, how does a mediator determine what issues to take on first?
A: Sometimes the most significant challenge is simply sorting and sifting through issues and then determining an agenda. It’s not unusual in a complex, multi-party mediation to spend many sessions debating what ought to be on the table and whether the people who are participating are the right [ones]. The preliminary work is sometimes the most critical piece or certainly as critical as the substantive negotiating piece. If it is not done or not done properly, it can guarantee the failure [of the negotiation] because you haven’t identified all of the issues correctly or haven’t identified all of the stakeholders properly or you haven’t ordered the issues properly.

Q: Do you think, so far, watching as an observer, that much of this model – these types of techniques – have been utilized in the health debate on Capitol Hill?
A: It does amaze me. … The Democrats have 59 votes but are holding their heads and moaning that they can’t get health care reform passed. But have they really tried in a way that signals compromise rather than a way that signals “we simply have the votes?” And we’ve seen that behavior from Republicans in the past, too. … This is just unfortunately the Washington game. It is just human nature that we slip into a competitive mode. From the time we are children we want more of the candy bar. And if I want more than that means that Joey has to have less. … But, of course, politicians shouldn’t be about candy bars. It should be about the best interest of a variety of constituencies and there are many in the health care debate.

Q: In such an environment, who could step in to move the health reform players forward? Can it be the president or a party leader?
A: One mediation theory [is that] the person coming in should be completely disconnected from the underlying dispute … a stranger almost dropping down from the heavens to try to resolve the dispute. [But] a mediator can be a village elder. …That person comes in with instant credibility, is respected by all. I don’t know who that person would be here. You would almost have to find someone who all parties respect [but who is] above this particular political fray. It has to be somebody very well respected, who substantively understands the issues, and, regardless of what party they may have been, they would have to, at this point, be above the politics. That’s the problem whether it’s the president or his chief of staff – and not the Obama administration in particular, I mean any administration. … They are associated with the political agenda of their party so it is very difficult for any president to be able to pull that off.