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<xTITLE>A Tale of Two Negotiators</xTITLE>

A Tale of Two Negotiators

by John Lande
August 2021

Indisputably

When President Trump was in office, I wrote a series of posts about his negotiation habits based on contemporary news accounts.  Despite having Republican majorities in both houses of Congress for his first two years in office, he generally was unable to negotiate for enactment of his policy objectives, most notably to “repeal and replace” Obamacare.  Although he allegedly wrote The Art of the Deal, which touted his supposed superlative negotiating skills, he didn’t seem to have the interest, patience, or skill to pull off successful legislative negotiations as president.

For contrast, check out a Washington Post article about the behind-the-scenes negotiations that President Biden is leading to enact his infrastructure proposals.  It portrays Mr. Biden as being personally engaged in the negotiations, often calling Republican senators to work out issues.  He also directed cabinet officials and high-level staffers to actively engage in the negotiations.

This is an especially difficult negotiation because of the narrow margins of Democratic majorities in the House and Senate, Mr. Biden’s preference for a bipartisan bill, the threat of Republican filibuster, and divisions within the Democratic caucus in both houses.  Despite difficulties and setbacks, the process is moving forward.  To most people’s surprise, they got 67 votes in a Senate test vote (including from Republican Leader Mitch McConnell!), far more than needed to overcome a filibuster.

Here’s an excerpt of the article, describing the negotiation process:

Red lines were made explicit: The GOP refused to reverse any of the tax cuts enacted under Trump.  Biden would not hike taxes on those making less than $400,000 a year, which ruled out raising the gas tax.  Spending from Biden’s coronavirus relief package would go untouched.

But both sides took those limitations as a starting point, not an end.

“You can tell the difference between an adversarial negotiation and a collaborative one,” said Sen. Mitt Romney (R-Utah).  “In this case, when one side had a problem, the other side tried to solve the problem, rather than to walk away from the table.”

While [Mr. Biden’s aides] Ricchetti, Deese and Terrell were furiously negotiating details at the Capitol, Biden was briefed multiple times a day at the White House and repeatedly hopping on the telephone, according to a second senior White House official.

[H]ow the White House nurtured trust with a group of pivotal Republicans offers some instructive clues on how it could lean on those relationships for other efforts.

“The president and his team have to be willing to invest the time and say no to the left — the far left — and Republicans have got to be willing to say no to the far right,” [Republican Senator Susan] Collins said.  “This really was built center-out.”

There are many steps to go before the legislation would be enacted and there is no guarantee that this will happen.  But I have a hunch that some version of the proposals will be enacted.  I think that too many legislators have invested too much time and credibility to let this opportunity pass.  Despite differences within the Democratic caucus, there must be tremendous pressure to approve something, even if it is only through a reconciliation bill passed with only Democratic votes.

Stay tuned, especially for the negotiation process.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



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