How Would Divorce Lawyers Mediate the Shutdown Debate?

Oh, to be a fly on the wall of the latest round of negotiations between House Republicans
and the White House. For nearly two weeks Congress and the White House have behaved
like a dysfunctional married couple, turning what should be a practical negotiation
into an emotional tit-for-tat. We sought the opinions of some of the area’s top divorce
lawyers. Here’s what they had to say about how they would handle the warring parties
in the federal shutdown debacle.

James W. Korman, Bean, Kinney & Korman, Arlington

“Most families don’t have 300 million members.” He recommends “mediation with a strong
and wise evaluative mediator respected by both camps.” Any suggestions? “Nelson Mandela
is ill. Winston Churchill is deceased. Henry Kissinger?”

Susan Friedman, Kuder, Smollar & Friedman, DC

“We would use the same procedure we use in our work. The parties agree in front of
each other they want an agreement; they agree to keep at it until they do; they can
only make principled arguments, not attack the other; and agree to certain basic principles.”
Another option, she says, is to tell them how much it will cost them to fight, to
make them “have skin in the game.” For example: “Have their salaries go to fund Head
Start, just as client funds go toward the education of the attorneys’ children.”

Ronald L. Ogens, Offit/Kurman, Bethesda

“While I would like to divorce each of our representatives from the seats they hold,
I do think a refusal to ever negotiate allows the parties to reach agreement, particularly
on anything that is important to both sides.” He does not, however, favor the tactic
of intransigence, “repeatedly sending to the other side more or less the same offer.
These tactics, in the world of divorce, custody, alimony, child support, and property
division, would have sent the parties into litigation, at great expense to each and
with each side destroying goodwill between the parties.” He says that has been the
scenario, up until now, between the House Republicans and President Obama.

“Each side is now digging in its heels, but not about the issues in contention, but
rather a reluctance to give in to the other side,” says Ogens. “In family law, the
reluctance to give in or seem weak almost always ends in a stalemate, which is not
the goal of either party (husband and wife or Republicans and Democrats).” He says
that in divorce negotiations “we like to avoid spending negotiating capital on an
issue that is already set (for example, Obamacare). Let’s say the parties had already
been divorced and now two years later they are discussing a change in custody . .
. and the other side says, ‘What’s changed since our agreement? [passing Obamacare].
Absent any material change in circumstances, why should the custody agreement be changed?”

Maybe today the marital squabble between the House and the White House will be resolved,
maybe the stalemate will collapse, maybe the shutdown will end, and maybe by this
time next week federal workers will be back at their desks, still digging out from
under almost two weeks of piled up business. Maybe.