Monday, September 19, 2011

Robot Negotiators

With computers already able to replicate a number of routine tasks performed by lawyers (e.g., basic will drafting, document review in discovery), can negotiation be far behind?  A recent article in the Economist talks about how game theory can help design computer programs that, for example, can help couples negotiate divorce settlements. All the parties need do is secretly assign their own personal values to the assets that need to be distributed in a divorce, and the machine will spit out the solution for them, saving them the trouble of figuring out how to conduct the tricky back-and-forth negotiations that would otherwise be necessary.

There are also on-line programs available to assist parties in conducting various kinds of business negotiations as well as settlement of legal disputes. These programs enable each side to input their bottom line numbers without revealing them to the other side, allowing parties to find out relatively quickly and painlessly if an agreement can be reached.

Does this mean, as a post on ADR Prof Blog asked, that we don't need to teach negotiation skills to young lawyers anymore? Does it mean that mediators will soon be replaced by computers? Perhaps I should be worried about these innovations, but I'm not. In fact, I think it's probably a good thing that some of the game-playing aspects of negotiation can be emulated by computers. Those are the parts that make a lot of participants uncomfortable anyway, and lead some participants to question the legitimacy of mediation. Some people distrust mediation because the process has no rules, and because its results seem to depend too much on the negotiating skills of the participants and their attorneys. In contrast, the court system at least aspires to produce results that accord with the law, and protect litigants' rights. (Of course the results in court are also affected by the respective skills of each sides' attorneys, and a lot of other extraneous factors, but that's a whole other story.) What we're talking about here is whether the process of mediation itself can be made more predictable and fair. If the game-playing aspects of negotiation can be more regularized, for example by teaching everyone some basic negotiating skills, or by turning over some of the back-and-forth to a machine, participants might feel reassured that the playing field has somewhat leveled, and results made more routinized and fair.

If we decide that it would be a good thing to take some of the mystique out of negotiations, does that mean that mediators and parties' attorneys are soon going to be out of a job? I think not. Even if we could program machines to weigh all of the values that people assign to their interests, and produce a fair result, professionals are still needed to help the participants identify the goals that are most important to them in the first place, as well as to help parties evaluate the costs and risks in pursuing their claims through whatever means are appropriate. Discussing the Economist article, a post on Associate's Mind glosses over this problem, suggesting that it is inevitable that computers will simply take over the whole negotiation process:
What if parties could merely input points of data at the beginning of filing a law suit, and let a computer decide what is a fair outcome?  Would clients prefer that to years of discovery and legal bills, all purely for jockeying and better positioning during settlement negotiations? (emphasis supplied)
I'm sure many clients would prefer that a black box provide the answer to their conflict, rather than years of expensive litigation. But the rub is in that "merely." To suggest that inputting the "data" relevant to a conflict is a trivial task is like suggesting that all a baker needs to do to produce a perfect cake is merely to combine all the ingredients into the pan, and then leave it to the oven to produce the correct result. The oven's part in that process is important, of course, but it is purely mechanical. The part that needs human creativity and ingenuity lies in figuring out the right proportions and the right ingredients, before the baker even puts the cake in the oven. That part resembles the story that the client tells the lawyer at the beginning of the case, which the lawyer then has to form into the initial pleadings. The dispute resolution process is even more complicated than that, because it requires further rounds of re-analysis and re-processing as parties to a dispute and their attorneys learn more facts, and are compelled to take the other side's view of the dispute into account in trying to predict how the legal system might resolve it.

How are computers supposed to tell people what matters to them the most, or what is fair, or what is really bothering them about the other side's conduct, or how another group of human beings (the jury) is likely to evaluate their claims? Answer: they can't. Perhaps someday we will invent a computer that can do all that, but until then, human beings will still play the most important roles in the dispute resolution process. That is the role that lawyers and neutrals have always played and will continue to play: helping clients sort out what is important and what is relevant; helping them present their story in an effective way; and trying to predict how the legal system is likely to evaluate their claims. So it's fine with me if computers can be programmed to manage the game-playing aspects of negotiation. Because the more interesting parts, the parts that require human help, are the parts where people "merely" input all of the "data" that is important to them. And where more humans are needed to figure out what all that "data" might mean.

(photo: KAIST)

Sunday, September 18, 2011

All or nothing?

In contrast with previous dealings with Congress, President Obama's recent introduction of the American Jobs Act presented a bill already drafted by the administration, and demanded that Congress simply pass the president's whole bill, right away. Some have viewed this new approach as a recognition of the limitations of the administration's previous negotiating strategies, in which the President often let Congress take the lead, left the details of legislation up to Congress, and signaled his willingness to compromise in advance. I'm curious whether other mediators think that the administration has been deficient in negotiation skills previously, and whether this new approach is likely to be more effective.

I think the new "get tough" attitude might in part represent an attempt by the president to resuscitate his image with voters who think the president has been too weak or compromising in the past. But I also think that the administration can afford to take such an attitude with the jobs bill, whereas such as strategy might have been too risky in prior negotiations with Congress.  As I mentioned in a another post, the jobs bill is similar substantively to previous Obama initiatives (like those initiatives, it starts off incorporating a lot of Republican ideas). But there is a crucial difference between this jobs bill and previous efforts to pass important bills through Congress--I'm talking especially about the stimulus bill, the health insurance reform bill, the financial regulation bill, and the debt ceiling increase. And that difference may explain the change in negotiating strategy. In all of those previous cases, the administration felt it simply had to get something passed, and by necessity all those bills had to contain substantial compromises given the composition of Congress. The price of refusing to compromise in each of these cases was considered too high. In the case of the debt ceiling increase, the alternative to compromise would have been an unprecedented default which could have caused another recession. That was unacceptable. In the case of health care reform, the alternative was no reform, and maybe another 15 or 20 year wait before another attempt could be made. That was also considered unacceptable. As for the stimulus bill, given the dire state of the economy at the beginning of the Obama administration, their economic team felt they simply had to pass whatever stimulus they could get through Congress as quickly as possible. And financial regulation was also considered something the administration simply had to do, even if the bill were weakened to get it through Congress.

In the case of  the new jobs bill, however, President Obama may finally be in a no-lose situation. The jobs bill is being presented with a fierce urgency--the administration is demanding that it be passed right away--but they know it is not the end of the world if it doesn't pass in toto. If the bill passes, the administration can take credit for bold action, and it stands an excellent chance of achieving some positive economic results. If the bill does not pass, we just have to live with a continued sluggish economy, and the president can blame Congress for refusing to do anything to help reduce unemployment. Congress will then have to at least share responsibility for the continued bad economy. If Republicans in Congress accept only parts of the bill, it will be interesting to see if the Democrats in Congress allow only those parts to pass, and whether the president would veto a bill that only does part of what he is demanding (presumably the tax cut part without the infrastructure spending part). But regardless of how the Democrats in Congress and the administration handle those tactical questions, they can still claim a political win from a partial bill. Democrats running for election next year will in that case be able to blame Republicans for insufficient action.

Given that the jobs bill is not seen as a do or die piece of legislation, despite its importance to the economy, it makes perfect sense for the administration to adopt a no-compromise approach to it. This is basic Negotiation 101. If you MUST make a deal, you are going to have to compromise, because the other side knows you must make a deal. And therefore you probably won't get your best deal, but you will get something accomplished. On the other hand, if you can afford to walk away from a deal, you can also afford to be uncompromising, because you win either way. Either you make the deal you want, or you blame the other side for the failure to conclude the negotiation. I think it is the nature of the jobs bill, as much as any change in strategy to bolster the public's perception of the president, that explains President Obama's changes in tactics.

(AP Photo/Tony Dejak)

(adapted from a post on my political blog

Sunday, September 11, 2011

1000 tables

If you've been paying attention to the news from the Middle East lately, you've probably read about large peace demonstrations in Israel, as well as the violent attack earlier this week in Egypt against the Israeli embassy. You might not have heard about a more hopeful event in Israel this week organized by some of these peace movement leaders. I saw something about this on David Harris-Gershon's blog on conflict resolution in Israel and the Middle East. The event was called 1000 tables.  The organizers set up roundtables in town squares in about 30 different cities, each table holding 10 chairs, and each group led by a moderator who might be a coach, group leader or mediator.

Participants had the opportunity to meet strangers, express their views, and listen to a variety of other perspectives. The contents of the conversations will be published in various social media. Traditional media doesn't seem to know quite what to do with a story like this one, perhaps because it lacks a traditional narrative. It has no winner or loser. There is only . . . talking, and perhaps a little more understanding. That does not fit in with story-telling conventions that require heroes, villains, and dramatic conflict. So a story about a peace protest would be more likely to make the front pages if it inspires violence or confrontation of some kind. Note that the Jerusalem Post story about this event focused on a minor confrontation that occurred when the mayor of Tel Aviv dropped by, rather than on the content of the conversations. By looking for that type of incident, the paper might have missed the excitement inherent in the spectacle of hundreds of people, in a contentious society, just sitting around tables talking and listening to one another.

Think about this: Isn't the whole idea of a PEACE MARCH somewhat of an oxymoron?  Any march or demonstration is just a group of people inspired by a particular cause presenting their cause in a forceful, in your face way that is likely to inspire counter-marchers and confrontations with those of opposing views. Sometimes that might be the most effective way to promote a cause, even the cause of peace. But if people really want to promote the idea of peace, they need to organize more events like the 1000 tables event, that actually embody peace and are intended to inspire dialogue rather than confrontation.
(See also another report in Haaretz)

(cross-posted on my political site)