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<xTITLE>A Case of Bad Bargaining Practices</xTITLE>

A Case of Bad Bargaining Practices

by Joshua Javits
January 2019 Joshua Javits
The President and Congress have engaged in bad bargaining practices. They have said and done things that create obstacles to reaching agreement on a wall and the shutdown. As a labor-management negotiator and mediator in hundreds of disputes, tenets of bargaining that are essential to the process have been totally ignored and violated.

·       Do not exercise leverage or take “final” positions at the start of a negotiation. Declaring war at the outset of bargaining is no way to reach agreement. Nor is throwing down a gauntlet and declaring “it’s my way or the highway.” The President took unilateral action in shutting down the government after Congress refused to bow to his demand for $5.7 billion for a wall.  Congressional leaders reacted by taking their own extreme position declaring “zero” appropriations for a border wall. $5.7 billion versus $0, “take it or leave it” bargaining is not good faith arm’s length negotiations. It makes any compromise look like failure. The parties should articulate their “interests”(articulated, reasons for wanting something)—in contrast to a hard “positions” (demanding something)— which can form a basis for dialogue and can build towards a solution.

·       Do not go backwards. Resolution is reached by closing the gap between the sides, not creating an even greater distance from the other side. The President had evidently agreed to the Senate’s $1.6 billion compromise appropriation but, after hearing from commentators, rejected that resolution and insisted on $5.7 billion, a figure over 250 percent higher. Critics who insist that their principal take an extreme position may be expected to throw bombs from the sidelines. To reach an agreement, they must be resisted.

·       Expand the pie. $5.7 billion versus $0 is a win-lose proposition. Both parties have their feet stuck in cement. Adding elements to the debate would allow for trade-offs that make face-saving possible. Introducing DACA, funds for asylum adjudications and other aspects of immigration reform would enable compromise and resolution.

·       Seek incremental change. Even if the wall the President seeks was agreed to, it would take years to build. So the parties could compromise and come back for more (or less) in future appropriations years. In labor management bargaining, patience is a virtue. Getting a “foot in the door” is not just better than nothing, because it establishes a base on which to build in the future (but must be justified then).

·       Find common ground and build from there. Both sides have expressed agreement with the virtue of “border security.” Some form of extension of the existing hard barriers can surely be justified as legitimate by the Democratic leadership in the name of border security. The timing of expenditures and the type of barriers are areas ripe for compromise. Based on common goals the parties can focus on how to get there. Once the details and complexity of a dispute are examined closely, both sides are often able to identify fixes that achieve their common goals. This is how the legislative process is supposed to work. “Regular order” in Congress begins with committee hearings getting at agreed to facts, a core precondition to effective negotiations. Out of such discussions a synthesis of reasonable ideas could have been formulated. The issues here are not as complicated as people want to make it. There is a way to work through it. Common sense and reason should prevail.

·       Choose a key player to act as a mediator. Where parties are at impasse, a third-party neutral is often useful to move the parties forward. Senate leadership got the initial funding bill passed. They, or a key swing group in Congress, could step in and at least reopen the federal government and initiate a broader discussion on the long-term issues. The President could call the funding measure a down payment, and the Democrats could say they reopened the government without explicitly funding a “wall.” Sometimes the first deal is the best deal. External events and subsequent repercussions are unpredictable. As things have devolved, returning to the initial compromise may be the best outcome for both sides.


Numerous issues are on the 2019 legislative table, such as infrastructure improvements, veteran benefits and health care reforms. This first example of bad bargaining practices on a border wall will hopefully instruct the parties to use more constructive approaches in the future to address the nation’s problems. Otherwise nothing will get done at great cost to the public, to both parties and to their ability to work effectively in the future.


Joshua M. Javits is a neutral mediator and arbitrator. He is a member of the National Academy of Arbitrators, on the rosters of the AAA, FMCS, NMB, and serves on numerous permanent arbitration panels. He served on four railroad Presidential Emergency Boards. He was Chairman and Member of the National Mediation Board from 1988 to 1993. He was Grievance Chair for the International Monetary Fund from 2007 to 2011. He was the President of the National Association of Railroad Referees (2014-16). He represented labor unions and management -- at different times -- in the past, and began his career as a trial attorney with the National Labor Relations Board.

Mr. Javits was an adjunct professor at the Georgetown University Law Center where he taught courses in arbitration, transportation labor law and alternative dispute resolution. He has been rated “AV” – the highest rating -- by Martindale Hubbell’s Best Lawyers in America since 2001.He is a graduate of Yale College and Georgetown University Law Center.

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