Gov. Cuomo’s Excellent Negotiation: A Lesson from the Real World


by Robert Benjamin

July 2011

Robert Benjamin While most of the attention on the recent passage of the New York Marriage Equality Act is understandably on the legal, political, social policy, and civil rights implications, the opportunity to study the negotiation process marshaled by Governor Andrew Cuomo should not be missed, especially by those who study and practice negotiation, mediation and conflict management. With the discrimination against those of different sexual orientation still common, and the considerable energy of parties and interests arrayed against him, the odds of passage was anything but a sure bet. Not surprisingly, Cuomo’s negotiation success was less the result of reasoned persuasion and more about his strategic, flexible and effective management of people and circumstance, many of which were unexpected and predictably irrational.

The rights of LGBT (lesbian, gay, bi-sexual, and transgender) people in the United States has always been—and remains-- a highly charged emotional issue. Notwithstanding the professed commitment to being a secular state, this country is still tightly wrapped in a Christianized belief system with a deep Puritanical vein. Issues of sex in general and the Biblical view of marriage make legislation of this kind more than a mere different view where people are free to disagree, but an outright moral threat. That makes Gov. Cuomo’s successful negotiation and resulting legislative coup all the more impressive.

In 1969, in historical terms a scant 43 years ago, at the Stonewall Riots in Greenwich Village of New York City, gay men challenged the local and state laws that discriminated against them because of their sexual orientation. Just 13 years ago, in 1998, Matthew Shephard was tortured and murdered in Laramie, Wyoming, because he was gay. On June 25th, 2011, New York Governor, Andrew Cuomo signed legislation recognizing the right of men and women to marry other human beings of their own sex, becoming one of only a few states to have done so, albeit one of the largest and most influential. (“Behind Gay Marriage, an Unlikely Mix of Forces,” Michael Barbaro, New York Times, p. 1, June 26, 2011)

As it has been for racial and other minorities before them (and often continues to be), the battle for recognition as citizens with full rights by gays, lesbians and others of different sexual orientation has been hard fought. Many people have suffered; their lives, careers and personal relationships have been disrupted or destroyed and not infrequently they were beaten, bruised and sometimes killed. If the passage of New York Marriage Equality Act does become a turning point---the state being a large and influential one----then, if history is any guide, most of that suffering will fade from view. Not only will the events be forgotten by all but the most affected, but the art of the period, such as Tony Kushner’s Angels In America, and other pieces of work which so poignantly conveyed the indignities and psychic pain of discrimination, will become mere period pieces to be remembered only from time to time as the way things were “back then.” As society incorporates in law and acknowledges in daily life individual rights that seem so obvious that most people can not conceive they were never present, such as the right to marry another human being of one’s own choice---the time when it was otherwise and why it was so will become all the more distant and surreal. Also quickly forgotten, to the extent it is even widely recognized or appreciated in the first place, is the difficult negotiated process by which the injustice was challenged and altered in law. This piece of writing is intended to at least attempt minimally alter that prospect.

That a human rights matter so important should be so easily forgotten should be of little surprise. Recent studies in neuroscience have established that human brain memory functions are characteristically selective, prone to bias, incomplete and inaccurate. For that matter, peoples’ capacity for rational decision making has been called into question, which might help to explain why humans appear so slow to acknowledge serious issues, often appear to only stumble toward change, and not infrequently make decisions that are directly counter to their own self interests. These human psychological and neurological limitations are not helped much by the fact that few people study history and fewer still pay attention to the behind the scenes negotiations that likely gave rise to those historical events. Most would probably be surprised for example, to discover that even the quasi sacred American Declaration of Independence was the result of a heated negotiation. (R.D. Benjamin, “John Adams: The Reluctant Revolutionary and the Negotiation of the Declaration of Independence,” http://www.mediate.com//articles/benjamin39.cfm, 2008) And similar to the negotiation of marriage equality legislation, the Civil Rights and Voting Rights Acts of the early 1960’s came about only after difficult and contentious negotiations that shared little in common with reasoned discussion. (R.D Benjamin, “People I Hate(d): Negotiation and the U.S. Presidential Election,” http://www.mediate.com//articles/benjaminpeople.cfm, 2008) Robert Caro’s masterful biography of President Lyndon Baines Johnson, recounts the story of how he pushed the legislation through the U.S. Congress, at times by literally confronting and sticking his thumb or index finger into the chest of a recalcitrant Congressmen and threatening dire consequence if he did not vote for his Civil Rights Act. (Master of the Senate, Vol. 3, 2002)

The behind the scenes negotiations are seldom reported or discussed. Many are left to assume, either out of practiced naivete’, ideological loyalty, or historical ignorance, that the way laws are made is through a deliberative rational process of discussion. All too soon people will presume that in New York, people of the same sex were given the right to marry because it made sense, it was the right thing to do, and the legislators simply sat down together, engaged in a civil dialogue where reason prevailed.

Although rational discussion and civil dialogue as a means of settling difficult issues might occur in some instances and to some effect, it is not now nor likely to become the prevailing mode of conflict management in a complex society faced with contentious issues. The pervasive Myth of Rationality and the ideology derived from rational choice theory has fostered the faulty belief that differing views can be reconciled by people of good will and reason were they simply to meet and a carefully orchestrated deliberative process was available to structure the discussion. Civil dialogue has seldom been sufficient to manage difficult issues, especially when offered as the primary strategy. The notion that parties will respond to “come let us reason together,” suspend their fundamental suspicion and distrust of those with whom they are at odds, essentially disregards how the human brain works and peoples’ penchant to be “predictably irrational.” (Ariely, D. Predictably Irrational , 2008). Cuomo’s negotiations makes all too clear the limits of civil dialogue.

The axiom should be obvious: the more an issue reaches into the moral, political, and economic fiber of group or community, the more contentious it is likely to be and the less likely that it will be effectively managed in a reasoned, wholly civil and transparent manner. Few issues would qualify as contentious as easily as proposed legislation that would allow for same sex marriage. Of necessity, such issues can only be effectively managed by unkempt, sometimes surreptitious, and tenacious negotiations.

Therefore, before the ink of Governor Cuomo’s signature dries on New York’s Marriage Equality Act, and those who would forget or revise history have a chance to do their best, every effort should be made to bring attention to the negotiation process that gave rise to this significant step in furthering civil rights in this country.

Managing difficult political matters, as Gov. Cuomo has done, are not all that different from the nature of disputes and issue management in any other context. If there is a difference at all, it would be merely that political negotiations are more realistic and less forgiving. He could not rely on either the “good faith” or reasonableness of the people who opposed him. But then, adjudging a parties sufficiency of “good faith” and reasonableness is difficult in any dispute context, be it a divorce, employment or business matter.

What makes negotiation more problematic in the political context, are the many a varied concerns about appearances and necessary public posturing that intrude upon the substantive discussion of policy. The politics, while often demeaned, is not unimportant and the truth be told, there are often political considerations in play in most disputes. For some people in a dispute, even the suggestion of the willingness to negotiate is problematic; negotiation is seen by many as weakness and an abdication of principle. Very often, creating a sufficiently strong incentive for a recalcitrant party to engage in negotiation is the first order of business. Appeals to reason are often insufficient and require more inventive, sometimes wily tactics, or even a veiled or overt threat of consequence to overcome the resistance.

Most of the prevalent styles of mediation taught or practiced do not work well in many dispute contexts, but especially in the political arena, because of they fail to sufficiently take into account the politics and other emotional circumstances surrounding the conflict. Many professional conflict managers operate on the faulty working assumption that people, if given the opportunity, will want to make informed and rational decisions based on their calculated self interest. This wishful thinking that people will want to act in a reasoned and cooperative manner to settle the disputes in which they are embroiled is often more a product of ideological belief and questionable theory that encourages a minimizing of the realistic extent of the fear, frustration, anger and ego-centric orientation that colors most peoples’ thinking. Negotiating in the political context, it is harder to escape and obligates dealing with people as they are as opposed to how one might hope for them to behave. The only difference between the political dispute context and other dispute context is that it is easier to compel their initial participation in the process and to impose a theoretical model that presumes the presence of an abundance of reason in the parties.

While there is no question that Governor Cuomo benefitted from the good luck of timing, he appears be have been smart enough to take full advantage of the opportunity. The apparent shift in the public sentiment toward a greater tolerance of differences in sexual orientation, New York’s established liberal tradition, and a new and somewhat disorganized Republican Leadership in the New York Legislature, were all factors that coalesced to create a favorable climate in which to pursue the Marriage Equality Act. Good timing, however, would not have been enough had Gov. Cuomo not had the ability to devise an effective negotiation strategy, and the skills to carry it out. Worthy of particular note is that his success had less to do with reasoned persuasion and far more to do with his intuitive understanding of the interpersonal and political dynamics meshed together with a coherent strategic plan.

The New York Times reporter, for the most part unfamiliar with negotiation, made a number of astute and interesting observations about Cuomo’s orchestration of the negotiation process, up front and behind the scenes, which are worth noting. (“Behind Gay Marriage, an Unlikely Mix of Forces,” Michael Barbaro, New York Times, p. 1, June 26, 2011) They suggest an elegant approach that recognized from the outset that he could not force the other parties to accept his logic and had to be flexible enough to deal with a constant torrent of concerns, objections and resistance not only from the identified forces arrayed against him but his own allies as well:

  • Cuomo studied the conflict terrain surrounding same sex marriage, assessed possible sources of resistance and potential alliances.

  • He prepared a foundation for negotiation in a secret meeting “with a group of super-rich Republican donors” that had a personal stake or personal interest in the issue and who had the “influence and money to insulate nervous senators from conservative backlash” if they supported the legislation.

  • He carefully framed the issue to use one moral principle to offset another: against the biblical injunction against same sex marriage was juxtaposed the moral value of personal freedom, drawing out the Republicans’ professed libertarian values.

  • Cuomo tenaciously made countless phone calls to recalcitrant legislators continually reminding them that he would use his popularity to support them, saying, “I am more of an asset than the vote will be a liability.” Of course, the other side of that friendly reminder is that, “I can make trouble for you if you won’t give me your vote.”

  • He orchestrated and coordinated the negotiation process from the top down, and organized a quasi war council of advocates, strategists and others like minded, with whom he met frequently in private and discussions were kept confidential. He did not use an open and deliberative process.

  • He made sure to minimize and neutralize any signs of infighting or disorganization, reprimanding “those who veered from the script.”

  • Cuomo did not hesitate to strategically bombard recalcitrant legislators if all else failed, organizing media and letter campaigns to “bury (an offender) in paper.”

  • He exploited the Republican Party’s leadership vacuum by “peeling off a few senators from moderate districts.”

  • Cuomo regularly met with Republican legislators throughout the process finding any seemingly plausible reason to meet.

  • He effectively anticipated and minimized the resistance of the Catholic Church and specifically the Archbishop Timothy Dolan. For whatever reason, the Prelate did not actively lobby or try to derail the Marriage Equality Act and literally “phoned in” his criticism of the legislation to a radio show calling it immoral. Cuomo finessed Dolan early on in the process by simply recognizing his opposition, respecting the necessity of his position and asking for “his overall support” on other matters. And, upon learning of objections by church leaders to the language of the Act, invited church lawyers to discuss their concerns and vent their frustration.

  • Cuomo recognized that, as in most negotiations, the key to an agreement is often in paying attention to details. Wordsmithing is more than mere legal formalism--- the ‘devil is in the details and the devil must be given his due.’ Opponents wanted protection for those religious groups who would refuse to sanction same sex marriage; they needed to be protected from lawsuits and insulated from state action or penalty. While such language might offend the symmetry of the civil right of marriage equality, the core focus could be maintained. This is the kind of necessary pragmatic compromise frequently present in difficult negotiations.

  • Finally, Cuomo remained personally involved and made sure that there was sufficient follow through. That kind of determined tenaciousness cannot be over estimated in making any deal work.
Reviewing Gov. Cuomo’s approach and style is especially important for those who study and professionally practice negotiation, mediation and conflict management. His successful negotiation of the passage of the Marriage Equality Act, whatever political leanings one might have, demonstrates how a deal can be effectively brokered in the real world on an important and exceptionally difficult issue. His work offers a useful case study worth carrying back to the academic study and increasingly professionalized practice of negotiation, mediation and conflict management that is becoming increasingly bound up in rules, protocols, and style orthodoxies. This may be a contributing factor to the still underwhelming demand for negotiation or mediation services. To many people embroiled in real world problems or conflicts, the way negotiation and mediation are presented and practiced is out of sync with their experience and appears to be an unrealistic and fanciful process that will not work. In most disputes, trust is at low ebb and the motivations and reasoning of the opposing party is in such serious doubt, that to suggest consideration of a collaborative, rational problem solving process is commonly dismissed as naïve at best.

A good measure of Governor Cuomo’s effective leadership is because he recognizes the importance of and has the ability to negotiate and mediate complex and difficult matters, and does so from a realistic perspective. While he did not spurn the trust, good faith, or reason of those involved in the negotiations were it present, he did not rely on it being offered. He facilitated the coming about of a “muscular middle” that was sufficient to move a difficult piece of legislation forward.

It is instructively sobering that he was successful perhaps because he is not formally trained or acting as a professional conflict management practitioner and therefore was not beholden or obligated to follow professional standards of practice that very well might have constrained him. Many of those standards and best practices are, or quickly become, cumbersome even for professional practitioners. The injunction for mediators to be “neutral,” for example, continues to be a dubious piece of professional baggage. He did not need to think twice or shy away from being directive and forceful as necessary or hesitate to use available political and personal leverage and connections to make the deal happen. Cuomo did not have to ponder over a theoretical duty to adhere to an “open and transparent process.” He did naturally what most experienced mediators and negotiators have learned is necessary to make a deal happen in many difficult matters: he used back-channels and other surreptitious maneuvers which are sometimes essential to bring disparate interests and adverse parties together…just enough.

Most importantly, Cuomo appears to recognize that the essence of negotiation is trades and trade-offs. The gives and takes that were the likely subjects of secret meetings remain hidden in the shadows of this deal, perhaps to be discovered or revealed later, or maybe not. This, of course, is the stuff of negotiation that the public finds most disconcerting and hard to accept. Curiously, even a fair number of professionals who negotiate or mediate, especially those of a strenuous rationalist or humanist persuasion, find trading unsavory and for some, downright repugnant. Their insistence that negotiation should be a civil, back and forth discussion of reasoned arguments seeking common ground, borders on being a self righteous article of faith.

Cuomo in this matter was a partisan negotiator, not as an outside mediator. Some might suggest he thererfore had no duty or responsibility to maintain a balanced role among the parties. However, just as it does for a mediator, the issue of balance remains present. To garner a sufficient level of trust and credibility with the other parties necessary to obtain an agreement, he had to maintain balance. The mindset, strategies and skills practiced by a mediator or negotiator are more the same than dissimilar.

Governor Cuomo was successful because of his ability and skill in blending his personal force of personality and tenacious determination together with a competent analysis of the conflict terrain. He devised a coherent strategy that was carefully focused, able to anticipate resistances and was sufficiently flexible to respond to any difficulties. As a “guerrilla” negotiator, he was not bound up in adherence to any ideology other than doing a good deal for a good cause. It is valuable to note he freely interspersed what some would term primal-hardball and Machiavellian negotiation strategies with more reasoned approaches as necessary.



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Biography




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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