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May 2018

Negotiation could resolve Washington gridlock, says Senator

During his 17 years as a practicing lawyer, primarily in the civil rights arena, Tim Kaine often became involved in formal mediation. Today, the Virginia Democrat cites personal experience for why he touts the value of mediation in resolving policy and other matters.

When he became mayor of Richmond (1998-2001) and later governor of Virginia (2006-10), Kaine said he “remembered the power of mediation” and frequently would bring in trained mediators “to help resolve public policy disputes.” As governor, he had a deputy general counsel known as the best mediator in the state.

At the April 20th Annual Spring Conference of the ABA Section of Dispute Resolution in Washington, D.C., Kaine made a bold proposal: Federal legislators, when at an impasse, might benefit from the expertise of trained mediators. Sadly, he said, “we don’t do this in Congress” and congressional stalemates are widely known.

Kaine delivered the plenary remarks on the second day of the four-day meeting. He shared satisfaction from successes of mediation that he experienced on the state level as well as frustration with how negotiations have played out on the federal level. And he believes he knows why dispute resolution tools do not usually work with fellow lawmakers.

“In law, (dispute resolution) is a good thing,” the senator explained. “In policy, there is often a political motive to keep a dispute going than resolve it. Keeping it going can be used to energize your base. Keeping it going can be used to raise funds.”

Kaine added that in his 24 years in politics, he had “never seen such polarization” as today. Too many in politics take the approach, he lamented, of “let’s not get something done and then we’ll fight about who’s to blame for not getting something done.”

Kaine is noted for reaching across the aisle and working well with Republicans. In his wide-ranging talk, he offered examples of where negotiations among lawmakers succeeded as well as failed and provided insights on why.

He recounted in 2015, for example, how he and Sen. Bob Corker of Tennessee, the Republican chairman of the Senate Foreign Relations Committee, ironed out differences among senators and then the Obama White House to get congressional approval for the Iran nuclear deal, known as the P5+1 for the UN Security Council’s five permanent members.

As recounted by Kaine, Corker first drafted a bill that prohibited the president from finalizing a deal with Iran absent a vote of the Senate. He told Corker that Congress needed to play a role, but the bar the bill set was too high. Rather, he proposed the president be allowed to do the deal unless Congress votes no and that there be a time limit on the window for congressional action.

Congress approved the legislation and President Barack Obama, despite an earlier threat of a veto, signed it. The negotiations “set the stage for how Congress would analyze the deal if there was a deal,” Kaine said in outlining the thrust of the final proposal.

The failure: Congress’ inability to negotiate a deal for the Deferred Action for Childhood Arrivals program — also called DACA — involving legal protections for roughly 800,000 people who entered the country illegally when they were children. At one point this year, Senate negotiators thought they had a deal with the White House, until President Donald Trump spoke against the deal.

“Why did that one fail?” Kaine asked. He explained that when Obama issued a veto warning on the Iran legislation, that attracted more Republican votes. But when Trump came out against the DACA deal, “that stopped us in our tracks. We had eight (Republicans) but couldn’t get any more.”

Kaine observed that “listening is the lost art in life right now” and that he believes that “people don’t feel like anybody listens to them.”

“You in this profession,” he said. “You really care about this. You are trained listeners. You are trained to find commonalities that people can’t see.”

Besides his remarks, Kaine, who ran in 2016 as the Democratic nominee for vice president, answered questions from ABA President Hilarie Bass. The two discussed, among other topics, negative statements made by Trump and others about judges and the courts.

Kaine said judges, based on the law, have so far acquitted themselves well through various rulings on Trump administration proposals. He suggested “this chapter in our history is going to have a positive” outcome and show that “institutions are stronger than individuals.”

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