The Art and Practice of Second-Guessing Negotiated Deals

by Robert Benjamin
October 2013 Robert Benjamin
June 3, 2014

The recent exchange of "the last POW " American soldier in the Afghanistan War for five Guantanomo prisoners, reported to have been mediated by Quatar between the Taliban and the United States, has drawn scathing criticism. Beyond the politics, it highlights the unique vulnerability of negotiated and mediated agreements to second-guessing. Ironically, the secrecy and informality that often make negotiative processes work also breeds skepticism and doubt. This re-published article remains timely and relevant to an understanding by all practitioners, that negotiation and mediation are risky businesses.

October 3, 2013

If you are going to negotiate or mediate, prepare to be second-guessed. While wars, litigation and arbitration have the allure of being final and determinative processes -- albeit often falsely so -- negotiation offers little of that elusive finality and is particularly vulnerable.

Among all known species, human beings appear to have the most developed sense of consciousness, which cognitive neuroscientists understand to be “a subjective awareness of the world around us and ourselves as actors in it.” While the sources of this awareness remains deeply puzzling, it is manifested every time a person criticizes and second guesses his or her own, or another’s, actions and decisions. Second guessing others, not surprising, appears to be far more frequent and publicly expressed. Second guessing can take varying forms ranging from the commonplace commentary of the “woulda, shoulda, coulda” kind practiced by largely uninformed observers, to the more rigorous and elevated styles of historians who strain to re-examine and reappraise history, and scientists who challenge prevailing scientific understandings. The hall of fame of second-guessing, therefore, must include incidental armchair quarterbacks and television color commentators, alongside with the best minds of human kind like Galileo, Darwin and Einstein. The space for political pundits would fall somewhere in between.

Negotiated deals, most obviously in the political realm, but in a friends divorce, or a high profile business merger as well, draw a disproportionate share of second guessers, about the fairness, Although not highlighted in history like wars have been, negotiation is always been in the shadows. People tend not to second-guess wars as much, maybe because of the cognitive dissonance that comes about when there is a suggestion that soldiers died for no good reason. But, there are many histories written of warfare and decidedly few histories of negotiation.

In my yet to be crafted graphic, The Illustrated Short History Of Mankind, outlining the deliberations of social and political events, there will be a series of frames following the format of an extended cartoon strip, depicting the five basic recurring stages. The first will concern how the compulsion of the first two humans to make laws and rules to control the behavior of the third person and others who follow. As it has become complexified, legions of symbiotic advisors and lobbyists have gotten into the act. And governments are not alone; most every organization, religion, and business or corporation is a prolific rule maker. The second section will illustrate the many and varied forms of adjudication and punishment for transgressions of the laws or rules, from “an eye for an eye,” death sentences and banishment to imprisonment.

Third will be the wars and insurrections that invariably occur when people feel they have been aggrieved by the laws and rules. And on the other side, the “righteous use of force” has always been the traditional means by which to maintain law and order and social and political control Force has always had the allure of being the most simple, direct and final means of resolving real or perceived problems. The fourth frame will illustrate negotiation. Largely overlooked, this is the means people use to re-establish some semblance of normalcy between victors and victims after the use of force has been exhausted. Forget trust and good will, negotiation is the means by which people survive; every war necessarily ends with a negotiation. Finally, the fifth screen will depict the ever-present varieties of second-guessing of any negotiated deal. As regular as breathing in and out, and made all the easier by a “Twitter” or “Facebook” account, not just pundits, but most people enjoy the feeling of control offered by making a comment, be it informed or uninformed, on the logic, validity, and fairness of the resulting agreement and the motives, biases, ethics and morality of the negotiators or mediators involved.

Second-guessing can continue to occur regarding a negotiated deal for centuries in a historical and evolutionary dialectic worthy of Hegel and Darwin. If the second-guessing gains sufficient momentum, it may generate a “tipping point” that becomes, at least for some, an axiomatic lesson of history. For example, even British Prime Minister Neville Chamberlain’s negotiations with Nazi Germany’s Adolph Hitler, which resulted in the Munich Accord of 1938, designed to avoid the Second World War and has been widely regarded as a failed act of appeasement and proof of the limits of negotiating with tyrants, is currently being second guessed and reappraised 75 years later. (Baumann, Nick, “Neville Chamberlain Was Right, Slate.com, Sept. 28, 2013)

Although I am mindful that my History risks being second-guessed and panned as overly simplistic, few can deny the pervasive practice of second guessing. There are two axioms of the second-guessing of negotiated agreements that are firmly implanted. First, no negotiated agreement, concluded in any context, be it a divorce settlement, business deal, or geopolitical treaty, escapes being second-guessed. A second corollary axiom holds that the more difficult and complex the issue or controversy being negotiated, the greater and more intense will be the nature of resulting second-guessing.

The strength and value of the negotiation -- one of the most basic and effective processes humans have developed to manage difficult controversies -- lies in the core emphasis on flexible, candid, improvisational and creative thinking. Those strengths are also the greatest weakness of the process making it an especially vulnerable and a likely target of second-guessing. Although negotiation is a pragmatic and eminently sensible means of resolving differences, it is not an entirely rational or logical one. What goes on in most negotiations is often circuitous and not easily explained. Human beings are seldom the rational actors who make reasoned decisions out of their calculated self-interest that many would like to presume them to be. Not infrequently, their decisions are predictably irrational.

Negotiation can be likened to the makeshift use of duct tape to stem a leak in the pipes of an old plumbing system; it is a means of imperfectly patching together peoples’ different understandings and interpretations of events until such time as they might be more comprehensively addressed. Negotiation is not about finding right answers or the truth, and seldom leads to elegant solutions where everyone is satisfied with the final agreement. Generally, it results in a workable agreement people can live with. For this reason, idealists and ideologues are especially suspicious, resistant and dismissive of participating in negotiation for fear of being viewed as sell outs to their principles. Even under the best of circumstances the process is difficult; people must muddle through a thicket of questions and concerns in making the decisions necessary to manage the risks presented by complex situations where uncertainty and ambiguity hold sway. The combination of the complexity of the matters in controversy and the long standing ingrained historical suspicion of negotiation makes for a fertile terrain for doubters and second guessers.

Second-guessing has become an art form in its’ own right and worthy of study. At the very least, it is revealing of the lack of understanding of the negotiation process by people in general and not a few professionals as well.

President Obama, not unlike Neville Chamberlain before him, has been roundly criticized---and in some quarters applauded---for the deal that appears to, at least in part, resulted from his issued ultimatum of a “red line.” An earlier article, “Obama’s Red Line: The Uses of Ultimatums and Other Commitment Strategies in Negotiation,” Sept. 2013) discussed the origins, purpose and value of such tactics in difficult circumstances like those presented by use of chemical weapons by Syrian President Assad in the ongoing civil disturbance in that country. The use of an ultimatum, a quasi-coercive negotiation tactic, in this case the not so veiled threat of a military strike if chemical weapons were used, is common in varying forms in all negotiations regardless of context and not just in political matters. The tactic appears to have worked; Syrian President Assad and Russian President Putin, a key Syrian ally, appear to have taken Obama’s commitment to a military strike to be sufficiently serious and authentic so as to actively pursue the negotiated management of Syria’s chemical weapon stockpile.

Nonetheless, as George Packer observed, “(I)n the dominant Washington view, President Obama has been outmaneuvered into complying with Syria and Russia by his own bumbling.” Whether by sheer luck or canny strategizing, however, Obama bought about “the most auspicious moment to negotiate a political solution since the war began.” In addition, there is further suggestion that Obama’s displayed resolve toward Syria served as a signal/warning to Iran, with whom the United States has long been at odds over their presumed pursuit of nuclear weapons, that has caused some measure of softening in that controversy. Packer observes, as Thomas Schelling had back in the Cold War days, “when diplomacy (read: negotiation), supported by sanctions and force, or the threat of it, persuades tyrants to back down they have a way of growing weaker, sometimes terminally.” (Packer, George, “Negotiating Syria” The New Yorker, September 30, 2013)

Notwithstanding the seemingly successful aversion of a military strike or war, however, Obama’s actions have been “excoriated as bumbling.” As Amy Davidson noted in a comment in the New Yorker, many view him to be “without credibility in pursuit of a rudderless diplomacy (that) has embarrassed America on the world stage. …(Every turn looks like an act of weakness.” In this “version” of the negotiation, she notes, “(I) t would have been easier for the President to have stuck to his initial decision (to pursue a military strike) for the sake of credibility.” In fact, for many of the hardliners, the negotiation was a “toothless” façade and that even a mere “pinprick” military strike would not be enough. (Davidson, Amy, “Comment: Harder Answers,” The New Yorker, p41-42, September 23, 2013) Historically, negotiation and negotiators have always been suspect; the process is viewed as “just a bunch of talk” that is ineffectual, and those who counsel negotiation are weak willed and morally questionable.

Davidson, not unlike a fair number of practitioners, especially those who approach negotiation from a rational perspective, was troubled by what appeared to be the same “careless certainty that drove George W. Bush in Iraq” Obama’s willingness to improvise, made him appear indecisive.” There is no question but that the use of an ultimatum risks closing down the negotiation process. Many viewed the President’s assertion of a “red line” as an unnecessarily intemperate and simplistic “cowboy” approach. Again, Davidson suggests as much by observing “Obama’s worst moments, …have come when he ignores complexity, not when he embraces it. …His performance …has had a fly-by-night quality that does not inspire confidence.” She does not appear to appreciate that negotiation requires just such improvisation, if for no other reason than to “rearrange the board and shake things up.” Raising the stakes by the use of a forceful ultimatum can incite different perspectives that in turn increase the number of possible outcomes. However, by definition, the results of such an improvisation are not entirely predictable.

Experienced negotiators and mediators recognize, as few others do, that effective practice requires the ability to convey authenticity as a serious, credible, and tenacious player. In addition, the ability to sense and take advantage of the rhythms of the process as they develop and which are often unplanned and unanticipated is critical in complex matters. These character traits are not sufficiently accounted for by most of the rational models of negotiation. Insisting on a firm and consistent foreign policy that is applied too firmly will constrain the negotiation process. And, that process will almost never unfold in a predictable straightforward manner most expect. The misapprehension of the process is only exacerbated by the complexity of the geopolitical affairs of Middle East. Even before the recent events of the “Arab Spring,” the complex issues of the region took on many of the qualities of an especially wicked problem; the issues are constantly shifting between scarce resources and identity struggles giving rise to protracted conflicts between peoples with long standing enmities, histories and traditions that reach back to ancient times, at any given time there are multiple interrelated conflicts within and between countries, each of which are multi-variant, and the options to manage the conflict are not clear and carry considerable risks of unforeseen and unintended consequences, which are likely to radiate throughout the rest of the world. Given the level of complexity, the expectation of a consistent foreign policy is a naïve, if not an irrational, expectation. Negotiating and managing these matters require an especially high degree of improvisational flexibility and while certain basic principles might offer useful guidance, such as the greatest hesitancy to forcefully intervene in the affairs of those countries, a preset approach is simply not workable. In fact, especially in a world filled with contradictions and inconsistencies, “bumbling through,” not unlike “muddling through,” might well be the only valid approach, even if it does not comport with a traditionally rational thinking.

The same kind of second guessing offered by fans in the stands of a sporting, or for that matter, by any group of the bystanders that offer opinions of the “woulda, shoulda, coulda” variety, has been practiced since the beginning of time. Psychologically, such commentaries appear to serve the function of bolstering ones’ sense of control and self-confidence: “if I were there, I’d know how to handle the situation.” There is also a measure of self-righteousness involved: “I could have done it better, or handled it the right way.” In addition, because second-guessing is not easily susceptible to empirical test or validation, the activity is given free rein. Pundits, lay or professional, are allowed free rein to expound without any requirement for effortful thinking.

Second-guessing can sometimes be constructive and useful, especially when it is turned inward by a negotiator or mediator in the form of reflective practice. Debriefing a process and considering what might have been done differently, what cues or opportunities might have been missed and why, and were the issues framed effectively and all options considered? However, reflective practice unlike second guessing, requires abandoning the certainty that one knows the right answer, straining to become aware of the heuristic biases and habits that unwittingly influence a practitioners negotiation approach and style.

Negotiation is, perhaps the fullest expression and reflection of the messy operation of the human brain. Unlike other disciplines, for example, law, medicine, counseling, or science, where the practitioners have the presumptive luxury of limiting their focus on traditionally rational principles and methodologies, the practice of negotiation cannot. In fact, an effective negotiator is obligated to recognize that their own and other peoples effortful, rational and analytical thinking processes are forever embedded in the emotional functioning of the brain which do not just allow for errors or mistakes in thinking but encourage ongoing shorthand intuitive judgments that serve a purpose but are frequently invalid. (Kahneman, Daniel, Thinking Fast and Slow, 2011) Negotiators must attune themselves to not only their own heuristic biases, but also the dynamics and unexpressed fears and concerns of those involved in the negotiation of any issue. This essential layer of the process is ever-present and contributes to the perception of negotiation as a confused, circuitous, and sometimes unwieldy one, which is always susceptible to second-guessing.

A negotiator or mediator entering into a complex, dynamic, and ever-shifting conflict terrain should, therefore, be prepared that most negotiations are not likely to end cleanly and without some loose ends. Only observers have the luxury of knowing the right moves and are allowed the unfettered pleasure of making unequivocal pronouncements about how the negotiation should have ended or if the matter should have even been negotiated.

October 3, 2013

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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