Underdog Negotiating: A Dialogue on Asymmetric Bargaining

by Peter Adler, Robert Benjamin
November 2016

The deep bitterness of the just concluded Presidential election will continue on. It has been a gut wrenching experience for one half of the country, a moment of joyful victory for the other. The reality of American politics is that eventually all parties spend time in the political wilderness. That’s a given. Its what happens to electoral second-bests. The Republicans have been there before. Now it’s the Democrats.

But there are practical matters to be dealt with. The winners have to move their agendas and simultaneously try to govern. The losers have to regroup for future elections and save as many of their programs as they can. Politics is rough stuff. Sometimes it’s a full body contact sport. There will be demonstrations, personal attacks, legal fights, and media wars. If they are to effectively manage their new minority role, the Democrats will have to negotiate.

Do the Dems still have enough juice to bargain? Is there a strategy or plan? And regardless of our individual political proclivities, do we as professionals have anything to suggest to current and future Underdogs when it comes to bargaining with Big Dogs? We invite others who are interested to join this dialogue.

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Robert:          You know, it’s hard to get a grip on what to do.  I’m still caught in the grief thing. I’m not quite past denial that this happened and there is still some anger. My worst fear is that a Trump Presidency will just become the new normal. 
 
Peter:            I share some of that but I also want think ahead. A mountain climber I know told me he tries to “think like chess and move like ballet” even when he is scared. It would be nice to get to the “move like ballet part.”
 
Robert:         Short of riots and shut downs, the only thing I can think of for the Dems is to negotiate as a way of surviving and minimizing damage. I’ve thought about strategies but then what you told me before is that strategy is for amateurs. Real negotiators pay attention to logistics and tactics: the details of who, what, when, where, and how.
 
Peter:            Once Trump takes office, some of this emotional froth will dissipate and things will look a little different. It will be back to business. I sometimes have to remind myself that the word for “business” in Spanish is negocios. They are one and the same.
 
Robert:          How will all this unfold Oh Wise One?
 
Peter:            God knows Young Grasshopper, but the really critical upcoming negotiations will obviously take place on very specific issues: immigration; cabinet and Supreme Court confirmations; tax cuts; Obama care, Medicare, and Medicaid; infrastructure funding; Guantanamo; the Iran nuclear deal; and so on. These will come up one by one but they will also be tied together by the sometimes-wobbly and shifting alliances of Left-Right and Blue-Red politics. There will be trades, gives-and-takes, and smaller and larger bargains.
 
Robert:          Trump’s quixotic style will hover all this but the real negotiating partners will be in the Congress. Congress is ground level where details will get haggled out. As it stands now, I assume it will be McConnell for the senate majority and Schumer for the minority plus their close circles of senor allies. In the house, it will be the same: Ryan for the Rs and either Pelosi or Tim Ryan for the Ds plus a few other senior influencers.
 
Peter:             If you were advising any of these folks, who and what would you have them read?
 
Robert:           I would have them study Nicolo Machiavelli and the whole enterprise of negotiating with “Princes.” The current D and R Congressional leaders are not all that dissimilar from those Princes who were the top political operatives in Italy 500 years ago. It was a fractious time full of warring city-states. Nicolo Machiavelli was interested how to help them use negotiation to help maintain some semblance of order. 
 
Peter:             You love Machiavelli, don’t you? You’ve been talking about him for years.
 
Robert:           I think he is understudied, maybe even ignored, by mediators. Machiavelli was a political philosopher. He focused on the “employment of cunning and duplicity in statecraft or in general conduct” for his own prince in the heated political environment of his time. Although he has been denounced as amoral, a good number of historians think he was miscast and demonized.  I think he was a realistic humanist. It wasn’t winning at all costs. Nor did he say the ends justify the means. Machiavelli just advised his prince to not be naïve and expect that just being open and honest are enough to rule. 
 
Peter:             Well, if we are making a reading list for the Ds, I’d have them look at Saul Alinsky’s thirteen Rules for Radicals and Sun Tzu and The Art of War. Maybe also The 36 Stratagems which derives from Sun Tzu but is focused on the tactical use of deception. They also need to read Trump’s Art of the Deal even bearing in mind that it was completely ghost written by Tony Schwartz. Alinsky was a former labor negotiator who became a community organizer in Chicago. He worked with poor people to confront slum landlords. There are surprising similarities between Alinsky and Trump. I had an MBA student a few years back, Brian Lucas, who did an extra credit paper comparing Trump and Alinsky.
 
Robert:          What did he conclude?
 
Peter:            Both of them used ridicule and other displays of anger as negotiating tactics. Both believed in picking specific targets, freezing them, and personalizing their attacks as a prelude or run up to making an eventual deal.
 
Robert:          Neither of them was afraid of using polarization as a device to immobilize an opponent and force him or her to deal in a more productive way. In fact, they enjoyed it. Both of them insisted on having fun.
 
Peter:            We need to remember that their “ends” were very different even  though their methods had a lot in common. They just didn’t play by the conventional rules of their opponents so neither of them was especially nice in their bargaining. They also didn’t seem to care. And yet, they both were interested in getting their opponents to the table and creating a deal.
 
Robert:         Might be some lessons here for underdog negotiators and third parties who jump into the deep end of the pool with hardball bargainers. Mediators seem to secretly assume or wish everyone wants to play “win-win” but that’s a delusion we have fostered for the last thirty years.
 
Peter:             Isn’t it one of the mystiques from Getting to Yes? Principled negotiation is very rational and intelligent and a foundation to most training programs. One problem with it is what veteran Israeli diplomat Abba Eban observed: people tend to act wisely only after they have exhausted all the other alternatives by which time a lot of damage has been done.
 
Robert:         Fisher and Ury provided a good foundation for a lot of contemporary negotiation thinking. In the early years after World War II, in the shadow of the atomic bomb when alternative ways to settle conflicts became a matter of collective survival, they effectively took negotiation out of the basement of history and gave it a makeover.  They rehabilitated it into what appeared to be a rational and reasonable mode of conflict management.  
 
Peter:             What’s the problem then?
 
Robert:          Many people simply hate to negotiate.  They think it’s just for weaklings who are willing to compromise. After a good amount of resistance, people usually come to recognize they must negotiate. Still, they never think of it as entirely honest or honorable and don’t want to engage in it themselves.  They like to outsource the making of slightly dirty deals to politicians and lawyers.
 
Peter:             What Fisher and Ury did was paint this over with a rational problem-solving model. That’s not necessarily bad and actually works in many situations. I’m thinking it may be a hard for the Ds in the coming four years. Maybe they have to do what Abba Eban said: exhaust themselves and their opponents in the run-up to making actual deals.
 
Robert:          You also have some hard wiring at play. As the neuroscientists have confirmed, and contrary to popular myth, humans are not the predictably rational decision makers we like to think we are.  We are capable of reason sometimes, but also incurably prone to being “predictably irrational.”
 
Peter:             If underdog Dems are going to salvage any good, especially in the super-heated and hyper-intoxicated world of K-Street and Capitol Hill, then they’ll have to get realistic and mix it up fiercely. 
 
Robert:          What is it they say about R’s and D’s?  R’s get angry and get even. D’s feel hurt and walk away.
 
Peter:             The game here is asymmetric negotiation and how power will get modulated in the process of negotiating. Brian, my former student, noted Trump always assumes he is in a position of strength and has to ultimately persuade his opponent even if he uses some brass knuckle moves. His people were, and may still be, the “Haves”, though we’ll have to see how that plays out. Alinsky catered to the “Have Nots” and always assumed he was in a position of weakness. He also liked brass knuckles and assumed he absolutely had to confront his opponents and acquire power on the way to the eventual negotiation. I would have the Dems study Alinsky right now.
 
Robert:          I agree. Asymmetric negotiations happen all the time.  In fact, one of the sillier notions I’ve ever heard is the myth of the “level playing field.”  I’ve never seen one.   And while we’re at it, the idea of “power balancing” is also questionable. Someone always has the wind at his or her back and winds shift. There are any number of leverages that can be played, or bluffed.  Smaller developing countries haggle for concessions from large industrialized nations. Small suppliers haggle with big box retailers. The presumed weaker spouse in a divorce can sometimes play that perception to advantage and effectively bargain with the supposed stronger spouse.
 
Peter:            Negotiations are rarely perfectly symmetric. That’s where creativity and thinking laterally can sometimes come in.
 
Robert:          When Germany and the City of Berlin were divided into East and West, the United States posted a modest number of American soldiers in West Berlin, not nearly enough to stop a Soviet attack but enough to let the Soviets know the U.S. was dead serious about defending the city. Thomas Schelling called this a “commitment strategy.” You have to make people believe you are serious; to do so you have to also convince yourself that you are.
 
Peter:            Now is the time for the Democrats to get into the sandbox with all their little shovels and pails and be ready to throw some sand in the faces of their opponents.
 
Robert:           Asymmetry in warfare has been studied a lot by military academics and we negotiation wonks probably have things to learn from them. Guerilla fighters beat the pants of the U.S. in Vietnam. The Afghanis staved off army after army, including the English, the Russians, and some would say the U.S. Maybe the Dems need to get ready for “guerilla negotiating.”
 
Peter:             If negotiation is “the relentless pursuit of value,” how do you do that when one side has lots more plastic shovels and pails?
 
Robert:          It goes to the whole question of power again, which we mediators don’t seem to like talking about. Machiavelli’s focus was not just about ends at all costs, but practical outcomes that served a valid purpose and not just being fanciful about human goodness.
 
Peter:             Our colleague Juliana Birkhoff did her doctoral thesis on mediator conceptions of power. Mediators talked about voice, personal capacities, style, expertise, experience, knowledge; and being organized. Coercion, trickery, and manipulation didn’t make the list. Mediators are high-minded people.
 
Robert:          High mindedness is a rare commodity in DC. No telling what humans are willing to do to each other when they think their survival is on the line.  In any event, we both seem to agree that underdogs need to do what the Dalai Lama suggested in one of his high minded moments: study all the rules so you can know how to break them.
 
Peter:             One thing we know for sure: if the Ds aren’t at the table, they will be on the menu.

Biography



Peter Adler directs ACCORD3.0, a group of independent consultants specializing in foresight, fact-finding and conseneus building. He is the former President and CEO of The Keystone Center and has held executive positions with the Hawaii Supreme Court, the Hawaii Justice Foundation, and Neighborhood Justice Center of Honolulu. Peter can also be reached at 808-888-0215 (landline).  Peter is also the author of Eye of the Storm Leadership.


Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care. A lawyer and social worker by training, he practiced law for over 25 years and now teaches and presents professional negotiation, mediation, and conflict management seminars and training courses nationally and internationally. He is a standing Adjunct Professor at the Straus Institute for Conflict Resolution of the Pepperdine University School of Law, at Southern Methodist University’s Program on Conflict Resolution and in several other schools and universities. He is a past President of the Academy of Family Mediators, a Practitioner Member of the Association for Conflict Resolution, and the American Bar Association’s Section on Dispute Resolution. He is the author of numerous book contributions and articles, including “The Mediator As Trickster,” “Guerilla Negotiation,” and “The Beauty of Conflict,” and is a Senior Editor and regular columnist for Mediate.com.

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