D.C. Needs a Mediator!

With a government shutdown of undetermined length facing our nation, Washington, D.C. needs a mediator. As a former congressional staffer on Capitol Hill, I've seen this play many times. The parties and the president have drawn their proverbial lines in the sand and have taken intractable positions. Communication is all but ended and no one is facilitating a discussion (at least that the public can see). If our government is to resume operation, an effective mediator is necessary. As the late negotiation guru Roger Fisher observed, when interests are directly opposed, parties should use objective criteria to resolve their differences. Differences here have sparked a battle of wills, destroying any beneficial relationships between those governing. This is not only inefficient, but unlikely to produce agreement. Decisions based on reasonable standards make it easier for the parties to agree-- not to mention helping to preserve decorum and perhaps reminding public officials they serve the American people, which is what they were elected to do. The key may be to develop objective criteria that is both legitimate and practical. Widely accepted findings, professional standards, or legal precedent are possible sources of objective criteria. Testing for objectivity can be as straightforward as asking both sides to be bound by those standards. Rather than agreeing in substance, the parties may create criteria for resolving this crisis. A mediator could resist the typical pressures of politics and facilitate stubborn leaders refusing to be reasonable, shifting the discussion from substantive to procedural criteria in the search for a mutual, self-determined solution. With a different Congress in 2019, things are sure to become even more complicated. Happy New Year!

Insight into Trump Stormy Settlement Agreement

This week, porn star Stormy Daniels was on CBS's 60 minutes and since her interview, the White House reportedly isn't saying much, including declining for weeks to say whether President Trump was party to a $130,000 hush-money payment his personal lawyer, Michael Cohen, made to Daniels on the eve of the 2016 election. Cohen obtained a temporary restraining order against Daniels from a private arbitrator, a retired judge, barring her from disclosing "confidential information" related to the nondisclosure agreement. A lawsuit was filed after a multiple reports alleging that Daniels and Trump had an affair beginning in July 2006 at a celebrity golf tournament and was paid money for her to keep quiet in October 2016. While Daniels initially denied the affair, her decision to file the lawsuit confirmed her part in the affair. She and her lawyer, Michael Avenatti, even included the text of the “hush agreement” as an exhibit attached to her complaint which, interestingly, uses pseudonyms for the parties and says they wish to avoid the lime, expense, and inconvenience of potential litigation, and to resolve any and all disputes and potential legal claims between them. The case was filed in L.A. Superior Court and then removed to federal court. The first controversy likely to be taken up by the judge is whether the dispute must be handled in arbitration, where Daniels is being pursued for allegedly breaching contract by making public statements about Trump. Also at issue, is who signed the agreement on behalf of whom. Although Trump hasn't formally moved yet to compel arbitration, the mere threat has prompted Avenatti to argue depositions of Trump and Cohen each are necessary in order to collect facts that bear directly on the formation of the hush agreement. See copy of initial pleadings, including agreement as exhibit linked at bottom of story here-- https://bit.ly/2GASrNK and more on federal court proceedings linked to this report-- https://bit.ly/2IdwotF

Washington needs a Mediator!

Indulge me for a moment on the crisis facing our nation. In a dozen years of mediating, I've seen this play many times. The parties have drawn their proverbial lines in the sand and have taken intractable positions. Communication is all but ended and no one is facilitating a discussion (at least that the public can see). If our government is to resume operation, a mediator is necessary. As the late Roger Fisher observed, when interests are directly opposed, parties should use objective criteria to resolve their differences. Differences here have sparked a battle of wills, destroying any beneficial relationships between those governing. This is not only inefficient, but unlikely to produce agreement. Decisions based on reasonable standards make it easier for the parties to agree-- not to mention helping to preserve decorum and perhaps reminding public officials they serve the American people, which is what they were elected to do. The key may be to develop objective criteria that is both legitimate and practical. Widely accepted findings, professional standards, or legal precedent are possible sources of objective criteria. Testing for objectivity can be as straightforward as asking both sides to be bound by those standards. Rather than agreeing in substance, the parties may create criteria for resolving this crisis. A mediator could resist the typical pressures of politics and facilitate stubborn leaders refusing to be reasonable, shifting the discussion from substantive to procedural criteria in the search for a mutual, self-determined solution. God Bless America.