Sometimes as an attorney representing a party in negotiations you might have an unreasonable client, who refuses to give any ground to the other side on a particular point, somehow failing to understand that it is impossible to make a deal without conceding something to your opponent. Sometimes you have an unreasonable adversary, who seems uninterested in making a deal except on their own terms. And sometimes you have both. That seems to describe the position of President Obama in current budget negotiations.

The president is facing outrage from his fair weather supporters on the left for suggesting that he is open to changing benefit formulas for Social Security as part of a budget deal with Congressional Republicans. The concept of “chained CPI,” and other changes to entitlement formulas, is something Republicans have been demanding as part of the budget negotiations for months. Republicans promised that if the president was willing to make some concessions on entitlements, they would show interest in additional revenue increases. So it should be clear from the history of these budget negotiations that chained CPI was not the president’s idea. It’s probably not his preferred method of fixing Social Security. This administration, which pushed through a Social Security payroll tax holiday for the last couple of years, evidently doesn’t even consider it very urgent to shore up Social Security at all right now. But they are willing to consider such a proposal from the other side in the interest of getting a budget deal. Those expressing outrage on the left are somehow failing to grasp this elementary principle of negotiation strategy.

And what about that unreasonable adversary I mentioned at the top? Now that the president has expressed willingness to consider agreeing to something that the other side has been demanding, something they told the president was one of their top priorities, the Republicans have moved the goalposts. Here is John Boehner’s response to President Obama’s budget proposals: “If the president believes these modest entitlement savings are needed to help shore up these programs, there’s no reason they should be held hostage for more tax hikes.” This statement might be smart politics, but Boehner knows it is disingenuous in the extreme. The president doesn’t believe these savings are needed. That is something Speaker Boehner has been demanding. To suggest otherwise is to use the kind of bad faith negotiating tactic that kills deals.

So now we have the left and right (client and adversary) both attacking the president for advancing a proposal in negotiations over a budget. The left plays into Speaker Boehner’s hands by perceiving chained CPI as President Obama’s idea. And the right seems ready to play the same trick they played with Medicare in both the 2010 and 2012 election campaigns, trying to blame the Democrats for taking people’s benefits away, when that was their demand in the first place.

What will protect the president, and perhaps allow a deal to be made, is the American people (the real client). The president’s popularity remains strong, especially compared to the standing of Congress. People generally favor the balanced package of spending cuts and revenue increases the administration is suggesting. A bit of public pressure to stop fooling around might help get a deal done. Once the irrational actors on all sides are done scoring political points and blaming one another for failing to make a deal, one hopes that enough rational actors will be left in the room to identify the common interests that will permit us to move forward.

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By Joe Markowitz

Joe Markowitz has practiced commercial litigation for more than 30 years, both in New York City and Los Angeles, and has served as a mediator for more than fifteen years. He is a member of the Mediation Panels in both the District Court and Bankruptcy Court in the Central District of California. He is currently the president-elect of the Southern California Mediation Association. Website: www.mediate-la.com/