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Would You Like Fries With That?

It is well worth taking a moment to consider what just happened in the debt ceiling debacle, and how a mediator might have helped.

Part 1:  “The Boehner”

We have all been there. The other side says they want to negotiate;  we spend hours, days, negotiating, we came way off our original demands for the sake of getting the deal done – and just when a deal is about to be made the other side says, “My client won’t accept this.”  Then, when the next round of negotiating comes up, the other side (or worse, the judge) starts at the last offer made.

Now we have a name for this tactic:  The Boehner.

Representative Boehner said he was willing to negotiate a grand deal with the President so that they could not only raise the debt ceiling, but also set the country on a course to reduce the deficit.  Maybe this was just a deception; maybe not.  But the offer was irresistible.  When the negotiations got close, Representative Boehner pulled “The Boehner,” telling the President that he could not get his fellow representatives to support any such deal.  Of course, Boehner was willing to keep talking, but I imagine that each negotiation started with the President’s last offer.

The President was trapped.

Part 2:  The Madman Theory

Making the situation worse was the Republican negotiating strategy — referred to variously as “The Madman Theory” or the “Nuclear Option.”

During the Cold War, Richard Nixon employed what was known as the Madman Theory. It posited that demonstrating a willingness to consider “madness” in action would provide you with negotiating leverage. It is not much different than any negotiating strategy really in that a party may demonstrate that it is willing to scorch the rhetorical Earth in order to gain concessions from your negotiation opponents. George Bush and Republicans often employed the “madman” theory of negotiations with Democrats.

Talk Left.

“The issue on everyone’s mind was:  Were the Republicans crazy enough to refuse to raise the debt ceiling and thereby drive the economy off the cliff?” 

When Representative Cleaver called the debt limit deal a “Satan’s Sandwich,” I was reminded of Robert Mnookin’s excellent book, Bargaining with the Devil.  It’s a real page turner.  The book explores the notion that sometimes it is best not to negotiate.  Professor Mnooking recounts Churchill’s decision to decline negotiations with Hitler, Mandela’s decision to negotiation with DeClerc, and other historical examples. 

So, how does one bargain or mediate with The Madman? 

Maybe the Madman is bluffing; he is not really berserk. If so, it seems sensible to deal with the Madman the same way we might deal with any adversary in negotiation.  Ask:  What does the Madman really want?  What are his interests?  How can both parties maximize their interests?

Mediators would look for ways to call-the-bluff without embarrassing the faux Madman.  For example, where one spouse says he/she would rather burn the house down than give it to the other spouse, the mediator can give recognition to the emotion and try to re-direct it more constructive ways.  The President’s call for people to contact their representatives was this sort of strategy.  He assumed that the Madman’s underlying interest was in getting re-elected.

The Madmen thought that being Mad was exactly what their constituents wanted.  Inside the Beltway group-think might trump sensible negotiation theory.  Let’s say that Madman A wants to prove to his constituency that he is the baddest bad-ass of them all. He or she grandstands for the folks back home.  But secretly he is assuming (hoping) that someone else is going to hit the brakes before the car careens off the cliff.  (Rebels with a Cause.)  Unfortunately, the person in the next seat is acting the same.  It becomes a race to the bottom.  

The mainstream media did little to disaffect the Madmen of their view.  In its own self-delusional effort to appear to be “fair and balanced” the MSM continuously reported that the American public was disgusted with everybody, without going behind these poll numbers to note that the public was a lot angrier at the Madmen than the others.  

Negotiation theory suggests that even in a zero sum game, if the parties understand that the game will be played over and over, their best strategy is cooperation.  That’s the theory — but when dealing with a Madman there are obstacles to this understanding.  A newly elected Madman might not know his negotiation theory.  The Madman might be more enamored of his or her ideology than maximizing overall gains.

It would have been a mediator’s greatest challenge:  Inexperienced parties, ideological imperatives, self-serving group think, the media cheering them on, and the parties thinking they were the Spartans at Thermopylai.

Even so, one would think that as long as the Madmen were rational, a skillful negotiator or mediator could find ways to fashion and agreement among rational parties before letting the economy crash.

But what if they really were crazy enough?  What if they really were Mad?  The prescription for treating Madmen who really are Mad can be quite different from treating them as if they were rational.

When Dirty Harry or Martin Riggs (c’mon, you remember Lethal Weapon I – IV) encountered a Madman, they dealt with him by being even more deranged. This put the Madman off his mark.  He would not know whether his tactics will make any difference; he would lose track of the purpose of the game.  Instead of being absorbed in his own madness, now he would have to wonder how Mad Detective Callahan was.

Bill Maher’s proposal for dealing with the Tea Party was to form a group (dubbed the “Donner Party”) that would be just as crazy as the Tea Party only on the Left. 

In the debt ceiling negotiations, that tactic could have been played out by minimizing, rather than maximizing, the consequences of failure.  It seems to me that telling the Madman that he could destroy everything just fed into the madness.  Dirty Harry would have said something like, “I don’t know that hostage, she means nothing to me, go ahead and shoot her,” thus undermining the Madman’s leverage.  Suppose the President had said, “Call me when you have a bill raising the debt ceiling, otherwise, I’ve got a Country to run.”  

But the President had already been Boehnered.  There is a different appearance when one refuses to negotiate as opposed to backing out of negotiations.  Fox News would have said that the President called off the negotiations so that he could raise our taxes. 

According to Professor Mnookin, this was the conundrum Churchill faced.  Before Hitler invaded Poland in 1939, he suggests, it would have been presumptuous to assume that Hitler would not negotiate in good faith.  Certainly Chamberlin gave it his best effort.  Hitler was Boehnerizing the Brits.  There would be negotiations, then Hitler would move forward, and the next round began where the last round ended.  If the British ceased negotiating, it might have been seen as a capitulation.

Professor Mnookin argues that in refusing to negotiate further, Churchill acted out of a gut sense that Hitler could not to be trusted and, perhaps, that war was inevitable.  Churchill articulated reasons to support his intuition — that further discussions would only legitimize the Madman, and it would break the spirit of his own country to watch Europe wither away under Hitler’s advances.  But these reasons were rationalizations for his intuition.

The President was elected on a platform of breaking the gridlock in Washington.  Not surprisingly, he assumed that the Tea Party representatives were not Mad and that everyone would act in the best interests of the Country as a whole.  If the President had more experience, or if he was a superhero, his Spider-sense would have warned him not to negotiate with The Boehner.

What can we learn from this?

1. When negotiating or mediating, be sure you have the right parties in the room.  In the debt ceiling debate, the Present could not have had the Tea Party representatives there because that would have diminished the standing of Representative Boehner.  But the President should have seen from the start that Representative Boehner was not speaking for the Republican party as a whole.  There might have been ways to test whether the party would go along with some of the proposals before the negotiations got so far along.  Otherwise, the President might have been better served by declining the Boehner. 

In a matter as straightforward as an auto injury case, if the insurance company’s representative does not have the authority to settle at a figure that might reasonably be negotiated, try to get someone there who does have the authority.

2. Do what you can to determine whether the other side is truly Mad or just acting that way.  If they are truly Mad, prepare for war – negotiations probably will not help.

3.  Before horriblizing a situation, consider the repercussions.  Will it end up giving power to the other side.


Mitch Chyette

Mr. Chyette has been mediating cases for over 10 years.  Until recently, he also represented clients in a broad range of conflicts.  He is now  focused on mediation full time.  He thrives on the challenge of difficult cases and people, but is always glad to help reasonable people.   MORE >

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