Being an essay of opinions and observations on sundry issues related to the practice of negotiation; politics and electioneering; dickering over debt in the nation’s capital; Otto von Bismarck’s admonition about watching laws and sausages being made; a budding theory on the effect of constant attention-mongering from MSNBC, FOX News, and other bloggers, pundits, and blabbermouths; the creation of statutes, ordinances, rules, policies, regulations, and standards; and the making of hot dogs, chorizos, kielbasas, and bratwursts.
There is a Yiddish proverb that says God made man because he loves stories. The world is made of stories and good stories make the world. So here is a good story about negotiation.
A woman anthropologist from New York was studying gender roles on the Navajo reservation and was driving back to Phoenix to catch her plane home. The professor saw an older Navajo woman walking along the road with a suitcase and stopped to give her a ride. The Navajo elder didn’t say anything but got in. There wasn’t much frivolous conversation, which is the Navajo custom, but about, 45-minutes into the journey, the elder noticed a long paper bag between the seats and finally asked the anthropologist: “What’s in the bag?” The professor said: “Oh, that’s a bottle of very good wine I got for my husband.” The Navajo woman grunted quietly. Then after a while she said “Good trade.”
The essence of negotiation is finding acceptable gives and takes, in effect, “good trades.” Viewed from a distance, the details of any particular negotiation sit in a field of forces created by the negotiating counterparts. As former football coach and commentator John Madden once said: “Every situation changes the situation.” The result that ensues is composed of a not-always predictable chemistry of each side’s rituals, strategies, tactics, and styles of communication. “Alchemy” and the search for gold may be a better metaphor than “chemistry.”
If a negotiation effort succeeds, a catalytic conversion takes places and all counterparts find their way into the trade zone where agreements potentially live. If they don’t find their way, future windows for negotiation, litigation or other methods of settling issues may or may not open. Perhaps the same is also true in politics. The financial and interpersonal costs of getting to the next window of open opportunity when resolution discussions may be ripe often increase.
We love negotiation and problem solving and are life long students of it. We apply it to the work we do as mediators and facilitators. We talk about it, read about it, and teach it. We view swap meets as clinical practice opportunities and automobile salesmen as subjects for human experimentation. A few years ago when a reporter in London asked a Somali named Abdirizak Elmi Abdullah why he had turned to piracy, Abdullah said: “Negotiation is our religion.” The three of us have a bit of that in us. Our loved ones tell us we are obsessed and that we should ‘get a life.’ We reply this actually is life. They respond: ‘go get better lives.’
For us, the real story is that we live in a world of increasingly stubborn conflicts and ever more challenging problems. Our list includes the need for smarter energy systems, more food production, less poverty, a more robust economy, a sustainable environment and improved governance. We are restless for solutions and we like seeing people break deadlocks, accomplish difficult tasks, and make productive decisions. We want to see artful negotiation come into greater currency and believe it can. In this essay, then, we focus on a notion we call the “limelight effect” and ask what impact negotiating in the relentless glare of public scrutiny may have on the process of negotiating and the quality of the results.
Dickering Over Debt in the Beltway
Given the rancorous state of public discourse in the U.S., this is an excellent time to be thinking about negotiation, especially if you didn’t avert your eyes from the dramas that unfolded on CNN, Fox and MSNBC as the government shut-down and fiscal cliff were haggled out against the stumbling complexities of the Affordable Care Act. If you watched all this as we did, you might, depending on your political predilections, have concluded this is the American political system at its absolute worst: an incapable, dysfunctional, self-absorbed beltway bubble of mutally-canceling do-nothing-ism.
Alternatively, you could have concluded this is our system at its very best, a transparent majoritarian democracy that is slow, messy and necessarily adversarial but one that eventually gets the job done when every other principled possibility has been exhausted. You might have, depending on your ideology, assumed this was all about an extremist minority holding everyone else hostage – “political terrorists” as one of our colleagues called them. Or, conversely, you might have seen this as a brave new Tea Party triumph bringing their stated principles to bear on the more stolid two-party politics of Republicans and Democrats.
Or you might have reached other conclusions. You could have decided this was an injured and fatally weakened Barack Obama struggling for control. Or, you might have assumed this was a principled and determined Obama holding the line and pressing his agenda forward in the face of continued racism from the old white guy’s club. Alternatively, you could have concluded this was a deeply idealistic Obama who doesn’t need to run for another term and was positioning himself for the history books.
Perhaps, as someone once said about Wagner’s music, it’s better than it sounds. In negotiation, as in art, most of what we assume is going on and the way we interpret current politics sits in the eyes of us beholders. There is, however, a progressively more sophisticated body of theory and research that informs what is happening in Washington DC no less than what all of us see and do every day. Some of it comes from the game theorists and mathematical quantoids; some from economists and psychologists; some from social and political researchers; and some from experienced mediators and diplomats.
Today, we have a growing body of negotiation concepts worthy of attention, robust ideas like strategic anchoring and target setting, “my side bias” and competitive irrationality, patterns of concession making, and the winner’s curse in which nominal competitive success may actually be a failure. Many of these notions might be applied to Washington DC, a city that combines, in John F. Kennedy’s words “northern charm and southern efficiency.” In Washington’s political realm, however, and contrary to some of what we know about negotiation, there is a peculiar and seemingly irresistible love for the short-term “win” when we know that repeat negotiations with the same players tend towards more cooperative bargaining.
Those of us who both “do” and “teach” negotiation think about these concepts and insights and try to apply them beyond the classroom and workshops to the actual challenge of assisting others with real world problem taming. In the raw calculus of American political behavior, however, none of these negotiation concepts either alone or in combination fully explain what was going on during the recent beltway ruckus. They do, however, give us the groundwork for thinking that goes beyond our personal politics.
The Transparency-Privacy Dilemma
Negotiation is full of dilemmas, difficult choices that will be made either intentionally or accidentally and under varying conditions of substantive, procedural and psychological complexity. Many decisions are situational. Do you place the first offer or demand on the table or wait for the other sides? Do you meet at their office, insist on meeting at yours, or find some alternative meeting ground? In setting and telegraphing the atmospheric tone, do you come on tough or friendly? Even more deliberately, do you try to do a fast deal or wait for a better one? Do you disclose critical information, keep it to yourself, or hold it for another moment? Do you accept and trust the other side’s information, insist on verification, trade informational disclosures, or try to signal key points without revealing specific bits and pieces? Do you reveal your real interests, telegraph them, hold them close, or obfuscate them?
Some of the negotiation behaviors we see in our work have deeper roots that we believe derive from underlying cultural, political, and social notions about conflict. One orientation seems to presuppose that all of us are fundamentally competitive. A second assumes we are all, at core, cooperative. A third takes for granted that all of us will seek to do what is morally and ethically correct. A fourth assumes we are all rational actors and will do what is logical and pragmatic.
These four impulses—pursuing your own fair share, uniting with others to achieve a common end, insisting on doing what is right, and using logic and reasoning to solve problems—may have evolutionary roots that date back to our origins on the African savannah. One quandary is an “axis” or dimension of tensions between the two poles of competition and cooperation. A second continuum has to do with the pull and push of ethical stances and pragmatic solutions. Here, the coordinates at one end center on negotiation as a moral proposition and at the other, anchor in a viewpoint based on expediency and utility.
By themselves, each of these four imperatives may have certain clarity in the moment. They represent deep “values” but as mystery writer James Lee Burke suggests, people are ultimately what they “do.” Not what they say, not what they feel, and not what they think or profess. In the crucible of actual negotiation, values-in-action are usually more important than general high-tone philosophical value propositions. Any number of explanations might account for situations where a negotiator’s beliefs and actions part company. The emotional elements of any bargaining situation may cause negotiators to be less than true to their own compass. One mediator colleague of ours ruefully acknowledges how the principles of negotiation he so ably imparts to others sometimes desert him during times of personal conflict.
Each of the four imperatives above – cooperation, competition, morality and utility – has a certain simplicity and clarity but taken to excess or transformed into orthodoxy, each can run the risk of fostering instability and destructiveness. Competitors can become predatory and turn their counterparts into retaliators. Cooperators can become appeasers or get duped by “free riders.” Moralists can become self-righteous and bigoted. Unchecked rationality can overwhelm our humanity and make us cold leading otherwise smart people to absurd ends such as those mid-twentieth game theorists like Bertrand Russell and John von Neumann who urged “preventative war” in the form of a first nuclear strike against the Soviet Union in the name of being “aggressors for peace.”
These four pressures intertwine and play out repeatedly in negotiations over public issues when law making, standard setting or the creation and application of regulations are at stake But we observe one additional polarity that needs to be mapped as it applies to governance matters no less than private transactions that acquire a public face.
Some argue that negotiated decisions affecting others not at the table should be perfectly transparent in terms of substantive trades, the process used to achieve trades, and the relationships at play and being served. As the argument goes, the public wants, and may be entitled to, fuller access, scrutiny, and transparency. The counter argument is that the real-politick of negotiation requires moments of privacy and confidentiality, a time when parties can set aside formalities and niceties, talk “turkey”, try to meet each other’s personal and political needs, and create the tertium quid, or new third story, that is often needed to save face after reaching hard bargains.
We assume that both views are correct and create yet another negotiatory tension that needs to be disentangled and managed. We also assume that the issues of secrecy and openness will gain increased importance under the advent of both greater information accumulation (“Big Data”) and the scrutiny of a powerful new news cycle (“24-7-365”) that is connected, electronic, and instantaneous. Huge amounts of fast moving information are now stored and mined. No sooner has something happened in DC or state capitol, in a high stakes lawsuit, or at a Fortune 500 company, then the news ricochets through the public domain via wire services, tweets, and RIS feeds. Uptake, magnification, and amplification happen as the story moves into the hands of bloggers, talk show pundits, and media commentators. In the rush to be the first to break a story, media outlets often unwittingly sacrifice nuance and sometimes the very accuracy of the stories they report.
Negotiating in the Limelight
What would prompt experienced institutional negotiators like Barrack Obama, Harry Reid, Mitch McConnell, John Boehner, Nancy Pelosi, Ted Cruz, Eric Cantor, Paul Ryan and other players to deploy escalated media tactics in the midst of delicate negotiations? What, in fact, might be the motivations for any negotiator to “posture” some or all of their case in the limelight in the midst of an accelerating negotiation crisis and what might they gain or lose by doing so?
High stakes negotiators sometimes seek the limelight; sometimes the limelight seeks them. The logic of using the limelight, whether sought or not, can in part be explained by the way corporations and other large organizations undertake “crisis communication” during some immediate or impending calamity: an industrial accident, a nasty confrontation with a community, a government investigation, a CEO reshuffle, a scandal, or an internal fight among board members. Depending on the specific context, crisis communication relies on experts who can help manage strategic goal setting, tactical positioning, legal exposure, timely responses, well-crafted “messages,” and active media outreach. Either proactively or reactively, an organization seeks to make statements that will modulate the effects of a crisis in its own favor
In sensitive negotiations, especially high-stakes disputes amongst public figures like Obama, Reid, McConnell, Boehner, and Pelosi, or between private actors that have taken their fights public, we see at least five recurring limelight tactics:
- Preemptive Strike. Getting ones own version of the “facts” out early to win public opinion in the hopes of spiking an unfavorable negotiation or at least forestalling it until the window for a more favorable deal is in sight. For example, a company seeking regulatory approval for a product that has been challenged or criticized may choose to craft a series of press releases in advance assuring the product’s safety. Grabbing the limelight first is a way of framing the issues in a way most favorable (e.g., “prochoice” vs. “sanctity of life”) and anchoring the debate within a more favored context.
- Building Leverage. Marshaling general public support by casting favorable publicity on oneself and embarrassment on one’s counterparts. Political figures who have been accused of personal or public wrong doing may sometimes seek to respond, not just with denials, but by appeals to their “base” supporters denigrating their critics or reaffirming their credibility. Alternatively, many crisis experts deal with clients who have done something wrong and often urge them to admit it quickly in hopes of squelching an incipient uproar.
- Currying Specific Favor. Targeting communication to a narrow audience has a certain logic, for example an insurer who is angling for support from an insurance commissioner in the face of calls to reduce its fees or profits for underwriting specific high-volume products like house and auto policies.
- Upping or Lowering the Ante. Using messages to bargain in public by mobilizing specific support for a position. A public employee union, for example, may take its last offer or demand public in the hopes of making government negotiators look unreasonable and thus create negative publicity for the other side.
- Smoothing Over Differences. Negotiators may -- unilaterally or bilaterally – seek to send out public messages that one or both sides are working hard and are moving closer to an agreement. This paves the way for resolution, builds support from a base after mobilizing them, and may actually create the momentum needed to finish a negotiation. Using the limelight to convey optimism or reciprocal praise seems more common in diplomatic circumstances than national politics, something commonly braided together with electioneering.
In the public and high stakes negotiations we have worked on which include peace talks between Arabs and Jews, major compensation claims for mine contamination in Papua New Guinea, and coal mining and forestry issues in the American southeast, we have seen these tactics used successfully from one side’s point of view but just as often with unanticipated backfires or “revenge effects.” Sometimes, actions have unexpected consequences that bite back.
Taking a dispute public always carries risks. It can further inflame a conflict and create new tensions that didn’t exist before. It can mobilize more actors. It can lead to “media wars” and it can encourage dueling press agents or technical experts. Negotiating in public also increase the risks of gridlock, i.e., the difficulty of accomplishing anything), polarization (sharply dichotomous views), and incivility (people behaving badly), all spiced with a healthy dose of caricature of the other camp.
H.L Menken once suggested that the whole aim of politics might be nothing more than to keep the populace constantly alarmed and hungry for safety. Perhaps the hidden messages in most limelight negotiations are “trust me” and vote that other guy out of office! Politics, limelight and negotiation twine together in ways we students of negotiation are just starting to comprehend.