Tuesday, June 28, 2011

Negotiating with terrorists (2)

"Terrorists" is probably too strong a word for the subject of this post, but what else do you call people who threaten to do something incredibly destructive if they do not get their way? I'll use as an example the Republican leaders like Senator Mitch McConnell who are taking advantage of the fact that the government is at the limit of its borrowing capacity as a lever to try to get their way in ongoing budget negotiations. These leaders know that allowing the United States to default on its obligations would not only raise interest rates, which would cost all of us many billions of dollars, but would send such shock waves around the world that we would potentially cause another credit crisis and a severe global economic downturn. They know that this is a trigger they must never pull, yet they will not agree to extend the government's borrowing authority unless they get more concessions in budget talks.

My point here is not to argue the merits of each side's budget proposals. Whether we should balance the federal budget by raising taxes or cutting spending or some combination, or whether we should even worry about balancing the budget at all, are not my concerns here. Even though I have a point of view on those questions, and enjoy debating them, I respect all other points of view, and I don't want the merits of the controversy to distract from a discussion of negotiating tactics. (I save the political argument for my political blog, where I posted a more partisan version of this post.) So let's put the merits of the dispute to one side, and let's also put aside any questions about the legitimacy of the tactics the Republicans are using to press their point of view. (For the sake of argument, we can even assume the Republicans' use of this tactic is highly commendable.) Let's just take as a given that people often seem ready, even eager, to drive both sides to ruin if they cannot prevail in negotiations. Not only in politics, but also in labor negotiations or international diplomacy, or in the conduct of lawsuits, we frequently encounter adversaries who are quick to threaten a strike or a war or a lawsuit, even though carrying out the threat will probably hurt both sides. The focus of this post is limited to trying to figure out how the opposing party--in the case of the budget negotiations, the Democrats--can deal with those threats.

First, you might try to re-frame the debate. In the example of the budget negotiations, Democrats do not want to be perceived as advocates for borrowing more money, at a time when people are concerned about budget deficits, and allow Republicans to portray themselves as trying to rein in excessive government spending. They will not win that debate. Instead, Democrats might want to talk even more about the importance of honoring the government's financial obligations. Today for example, Senate Majority Leader Harry Reid put out a statement that goes a long way toward re-framing the debate. In it, Reid talks about the "catastrophic" consequences of defaulting the nation's debts, and chastises the Republicans for being willing to risk default so as to preserve tax breaks and give-aways for the most privileged individuals and businesses. He also tries to make clear that the Republican plans call for borrowing as much as the Democrats.

In a business or labor negotiation, especially where the opinions of others must be taken into consideration, it is often helpful to re-characterize the concerns of one side so they become more understandable to the other side. The company might try to convey to the union that they are really the ones trying to save jobs, or the union might try to convey to the company that they are the ones who are trying to make the company operate more efficiently.

Second, you can try to persuade your adversary of the adverse consequences to them of the threats they are making. In the budget negotiations, Democrats might try to persuade the Republicans that they will suffer just as much from the failure to make a deal as Democrats would. Natural Republican constituencies such as business owners do not want to see their costs of borrowing increased. They do not want to see the economy tanked for Republican political gain. Refusing to raise the debt ceiling is not just a gun being held to the Democrats' heads. It is a gun Republicans are holding to their own heads as well.

Showing the other side how self-destructive their threats might prove is a useful device in resolving private disputes as well.  In attempting to settle a litigated dispute, it is helpful to get both sides to understand just how expensive it will be to continue to battle it out in court.

Third, you might need to develop a Plan B. In budget negotiations, Republicans seem to have more leverage because they are more willing to risk the consequences of a failure to make a  deal than the Democrats. They even perceive some political gain from holding the line. In this year's budget negotiations, the Treasury and Congressional Democrats might consider formulating a plan for dealing with a failure to raise the debt limit, a plan that would not cause an immediate default, but might cause such delays in government payments to contractors, soldiers, federal employees, and senior citizens that it would cost the Republican side politically if it were allowed to happen. Nobody should want to put Plan B into effect, but Democrats might try to make the Republicans understand that they can live with the consequences of  a failure to make a deal, and that failure might be more costly to the Republicans than they realize.

Similarly, in a negotiation over the re-payment of a debt, it can be very useful to let the other side know that you are thinking about filing bankruptcy. Even if that is an alternative you don't even want to consider, it can serve as a persuasive argument to induce the lender to reduce the payments. It is a paradox of negotiation that in order to make your best deal you might have to show that you are not afraid to walk away from the table. At the same time you want your adversary to become sufficiently invested in the negotiation process that they will be the ones worrying about what would happen to them if they don't make a deal.

(Cleavon Little in Blazing Saddles)

Sunday, June 19, 2011

Peace / Negotiation

Can negotiations hinder conflict resolution? Think about the stalled peace process between Israelis and Palestinians, and how many proposals keep getting floated on an almost-daily basis to attempt to resolve the conflict. Somebody comes up with a new formula for peace, and somebody else immediately denounces the idea. One side holds out what they describe as an olive branch, and the other side responds that the proposal just proves they are not serious. Third parties urge the parties to resume negotiations, but the conditions never quite seem right for a breakthrough. All of this suggests that negotiations are not the only the path to peace, and might even create obstacles to reaching an agreement.

Recognizing that the disputes that I deal with are not even a tiny fraction as complicated as the Middle East conflict that has been going on now for more than 60 years, I will still try to draw an analogy from my own experiences. Often in mediation parties get to the point where they understand that the deal being offered by the other side is probably never going to get much better. And the deal is still unacceptable. It doesn't even approximate fairness. There are all kinds of things wrong with it. At that point in the process, I might try to find a way to suggest that people stop trying to negotiate. Stop trying to improve the deal. Stop finding fault with the deal. Instead just think about whether the deal being offered is better than the alternative of continued conflict. And it always is better in at least one respect. It offers the hope of ending the conflict. At some point the only choice people have to make is whether they want to continue to fight, or whether they want to stop fighting. I'm not saying they should always choose peace. All I'm saying is that continuing to work on improving the deal sometimes prevents parties from facing the ultimate choice that must be made.

To take an even more trivial analogy to compare to something as weighty as peace in the Middle East, think about buying a car. Like it or not, there is a certain amount of negotiation involved in buying a car, and people always worry about how to negotiate with car dealers, and whether they are making the best deal they can. At some point, however, they have to put that concern aside and ask themselves, do they want the car or not? Maybe you're paying a little too much for it. In the long run, that doesn't matter so much. Just decide if you want the car or not. 

I think a lot of people understand what is needed to solve the Middle East conflict, and it has nothing to do with how the parties resolve the issues of borders, or dividing Jerusalem, or refugees, or settlements, or any of the other issues that the parties are talking (or not talking) about. Only two things are required. The first is that enough people on both sides must want peace. Not necessarily a majority (although there might already be a majority), just a large enough critical mass that is demanding peace. Right now polls seem to show a sizable number of people on both sides of the conflict want peace, along the lines of a two state solution. But there are also a lot of people on both sides, perhaps the more vocal part, who prefer the status quo. I don't know whether a critical mass demanding peace exists. The second thing that is needed is enough courage on the part of the leaders on both sides to make a deal. And that is no small thing to ask, because history shows that any leaders on either side who are willing to sign a peace agreement face a substantial risk of assassination. That means we need leaders on both sides who want peace so much that they are willing to die for it. Which we don't seem to have at the moment.

Sunday, June 12, 2011


At a recent seminar, the lecturer was telling us that the Kubler-Ross model of the five stages that people go through when they are dying--denial, anger, bargaining, depression and acceptance--has applicability to many other processes, including mediation. I had not really thought about mediation in those terms before, and I wasn't sure how that insight might apply to conducting a mediation.

Then recently, I actually watched a mediation participant go through most of these stages in a relatively short period of time.  Starting with denial: a failure to recognize his predicament. Next, expressing anger at the other side for causing it. This took the form of blaming the other side's attorney, as well as anger at the other side for lying or inflaming the situation. Bargaining: we see this in every mediation of course, but I think the kind of bargaining we might be talking about as an intermediate psychological stage takes the form of trying to obtain an approximation of what each side feels it is entitled to, rather than a realistic assessment of the costs and risks that each side is facing.  Depression: The person I am thinking of actually started expressing feelings of hopelessness and despair. And finally, acceptance: A recognition that settlement represents the only way, and the best way out.

Somewhere between depression and acceptance, I was in a caucus session with the other side, who were going through the stages also, but in a less dramatic fashion.  They suggested that I tell the other side some information they had previously wanted to keep confidential about the strength of their case. We're past that point now, I told them. We don't really need to talk about the case anymore. If we bring that up, we might be going backward. Instead, we just need to help both sides accept the need to settle it. And we did.

(graph from Changing Minds)

Wednesday, June 8, 2011

Mediation Styles

When I meet people attending a mediation for the first time, I'm always interested in finding out what they expect will happen. Often they don't know much about the process, and sometimes they come in expecting something quite different from what I have in mind. For those people, and even for those who have participated in mediations previously, I sometimes outline various approaches to conducting mediations, because I try to start off being open-minded about what will work. We usually use a combination of all these styles, depending on the needs of the case and the preferences of the parties. But I am going to list them in order of my preference, from my least to most favorite:

1. Mini-Trial

The parties sit on opposite sides of the table, and the mediator sits at the head. Each side takes their turn presenting a summary of their legal and factual positions. The lawyers do most of the talking. The mediator asks questions and might present the parties with his or her own evaluation of the case. I usually tell parties up front that I prefer not to conduct the mediation this way. It is too much like court, and I want mediation to be seen as the anti-court. But mediations sometimes devolve into this format anyway, because after all, the parties have been preparing for their day in court, they may be accustomed to and expecting this format, and the mediation might be the best approximation they are going to get of their day in court.

2. Caucus

The parties tell me up front that they do not even want to sit in the same room with the sons of bitches from the other side, not even for a minute. They do not think that will be productive. What they want to do is sit comfortably in their separate rooms, brainstorm among themselves, and explain their view of the case to the mediator. The mediator's role is first of all to act as a sounding board, and then to coach each side in turn in their negotiations, and to transmit information, demands and offers back and forth between the parties. I usually tell parties seeking this approach at least to try a joint session for as long as it seems to work, because it is more efficient to communicate information directly, than to use the mediator as a conduit to transmit information. The advantages of caucus include confidentiality--people really let their hair down in caucus--as well as comfort and safety. The disadvantages include inefficiency--there tends to be a lot of down time in caucus--as well as the lack of an opportunity to confront and possibly reconcile with the other side.


Instead of sitting on opposite sides and directing their presentations at the mediator, as in the mini-trial model, I try to create the appearance of sitting around a table and brainstorming about how to solve a common problem. Instead of asking lawyers to present their case, I prefer to ask them to predict their chances of prevailing at trial. I try to involve the parties as much as possible, and get them to understand the costs and risks of trial, as well as the advantages of settlement. By the end of the mediation, I explain, the parties are at least going to have a clearer picture of their options, and should in most cases be able to arrive at a more advantageous result through settlement than by continuing to litigate. We also discuss the toll that the dispute is taking on the parties, and try to imagine what life would be like if the dispute could be removed from people's lives. The object is to arrive at an objective, cost-benefit analysis of both parties' positions and options, so they can make an intelligent, dispassionate decision about how to resolve their dispute. Getting the parties into problem-solving mode, and helping them view their conflict in a more objective way is usually as much as a mediator can hope to achieve. The disadvantage is that we might be ignoring some deeper problems that are really driving the conflict.

4. Encounter Group

Sometimes I tell mediation participants that it might be best if we don't talk about the case at all. Let's talk about anything else. Talk about your hobbies, your families, how business is going, your hopes, your dreams, what is working, what difficulties you are having, whatever. Then the harder part. Talk about the relationship between the parties, where it started, what it meant, what caused it to break down, whether it can be repaired. I encourage parties to tell the other side things they agree on, things they disagree on, things they appreciate about each other, things they resent about the other. Listen carefully to what the other side is saying. Show that you understand where they are coming from. When this approach works, it can be magical. The parties are able to lay bare the problems that are really driving their dispute. Once they confront those problems, which is difficult, they often find out that the thing they thought they were fighting about turns about to be relatively easy to solve. Not everybody wants to go through this experience, and it is not appropriate for all cases, but it can be the most satisfying kind of mediation for all participants.

 As I said, I generally use a combination of all these styles. The trial lawyer in me enjoys hearing attorneys practicing their closing arguments, and trying out their cross-examinations on the other side. In caucuses, where most mediation sessions tend to head, I act as shuttle diplomat, negotiation coach and advocate for each side's position in turn. When I can get the parties into problem-solving mode, it can be a challenging exercise to try to predict how a case might be viewed by a judge or jury. And the most challenging and rewarding is to adopt the role of group leader, and try to help people understand one another and perhaps repair their broken relationships.

Photos: (1) IAMADRC, Australia; (2) Archzine; (3) focus; (4) mar_nyc

Friday, June 3, 2011

Hot Air

Last night I had the chance to hear Adam Hochschild talking about his new book To End All Wars, which is mainly about the conflicts between pro and anti-war leaders in Great Britain during World War I. The first World War is a particularly hard war to justify or glamorize, since it cost so many millions of lives, in such pointless slaughter. Part of the reason for that was the state of technology of the time. Offensive charges led by cavalry, the formula for success for hundreds of years, were rendered useless by machine guns and barbed wire. Until the invention of the tank, armies could no longer mount an effective offense. But the warring parties persisted in the attempt, spurred on by their outmoded ideas of how to fight, leading only to the sacrifice of millions of lives in exchange for no territorial gain. Another part of the reason that the First World War seems so pointless is that we have trouble discerning its causes and purposes.  Hochschild pointed out that before World War I, the countries and heads of state of Europe were getting along remarkably well. Then suddenly, they were engaged in existential conflict. Perhaps because the causes of the war are so elusive, and because victory on the battlefield was so difficult, the outcome could not produce any real resolution. At the conclusion of World War I, the participants were all left worse off in every conceivable way, and the war mainly resulted in sowing the seeds for World War II.

Hochschild focuses on the war resisters, mentioning how torn some of them were between their belief that the war was wrong, and the pressure they faced to support the cause. In response to a question about the kinds of rhetoric that we all hear during international conflicts, Hochschild talked about how inflamed both sides became in demonizing the other, and the extent they used some of the new media of the time to disseminate propaganda. Both sides equated their cause with the need to preserve civilization as they knew it, or national honor, or numerous other justifications for fighting. The war itself then became its own justification, as deaths of soldiers inspired others to make sure they had not died in vain. Many of them died in vain also. In order to understand the real issues involved in the conflict, Hochschild said, you need to cut through all of the hot air being spewed by both sides that was used to justify continued conflict. Once you do that, it becomes apparent that to the extent there were real conflicts between the participants, they involved territory and conflicting colonial ambitions, probably not the kind of stuff that would have inspired so many to lay down their lives.