Saturday, April 28, 2012

Does intransigence work?

According to a new book by Robert Draper, a group of Republican leaders got together on Barack Obama's inauguration day 2009 and hatched a plan to oppose and obstruct anything the new administration would put forward. Republican House member Kevin McCarthy supposedly said, "We've gotta challenge them on every single bill and challenge them on every single campaign." At the end of this meeting, Newt Gingrich told the group they would remember this day. "You’ll remember this as the day the seeds of 2012 were sown."

Some reports have said the revelations about this secret meeting are not exactly news. No matter. It's still important to keep in mind what lots of other evidence tells us: before the details of a single plan by the new president were known, leading Republicans had already decided it was in their strategic interest to try to block anything the administration proposed. President Obama never had an opposition that was willing to work with him at all. Their game plan all along was to portray anything he suggested as radical and unacceptable. And this is exactly what we have seen unfold in the last three years. Even if President Obama suggested something that a substantial number of Republicans had favored the previous week, they were all against it as soon as he supported it. Vociferously and unalterably and nearly unanimously against it.

The president's opponents can claim a fair amount of success from this strategy. For one thing, they succeeded, among a substantial part of the electorate, in portraying the Obama administration as radical and extremist. They were also able to blame the president for creating a more divisive, partisan atmosphere in Washington, even though he had promised to reduce partisanship and divisiveness. The president's opponents obtained tangible results from this strategy in the 2010 elections, which ushered in a wave of even more intransigent Republican members of Congress. In business negotiations, we also sometimes see the intransigent party getting more of what they want than the party that is eager to negotiate. On the other hand, parties who take positions that are too unreasonable also risk not getting any deal at all, and those failures may cost them more.

The president's critics from the left argue that it was a mistake for the Obama administration to go to as much trouble as it did to tailor its economic and other proposals to try to attract support from across the aisle. Since the Republicans were never going to work with this president anyway, he should have tried to push forward a more progressive agenda, instead of continuing to portray himself as willing to find common ground with the opposition, goes this theory.

So how does one deal with an opponent who has adopted a strategy of complete intransigence? Following the critics on the left, President Obama could have adopted an equally intransigent attitude himself. Had he done that, however, Obama would have made the Republican opposition look justified. The administration also might have gotten less of its agenda through Congress. Instead, the Obama team tried to make the case, especially since the midterm elections, that they were the reasonable party, and thereby exposed the opposition's game. The Republicans in Congress were embarrassed into opposing some pretty popular ideas, like cutting payroll tax cuts, closing tax advantages enjoyed by the rich, and providing access to contraception, and were several times forced to cave altogether when they refused to make a deal.

Negotiation theory, such as the work by Fisher and Ury, tells us that even if we are dealing with an adversary who is not willing to negotiate in good faith, or at all, that does not necessarily mean we should give up on negotiating altogether and declare war on that adversary. There are still techniques available to persuade even the most unreasonable opponent that reaching a negotiated agreement that serves their interests better than no agreement. The Obama administration employed many of those techniques, particularly in the budget negotiations of 2011, and wound up with an agreement, albeit one that cost the administration some support from the left, and that the Republicans are now trying to walk away from. Those negotiations showed, however, that when parties must make a deal, as the parties needed to do in order to prevent a national default, even a party that has announced in advance its intention never to agree to anything the other side suggests, still ends up having to accept some of their proposals.

The 2012 election will provide the ultimate test for whether the Republican strategy of obstruction has succeeded or failed. President Obama has stated publicly his hope that if he is re-elected, enough Republicans will decide to work with him that his second term will go smoother. And Governor Romney must hope that if he wins, he will not face the kind of intransigence from the Democrats that his party employed the last four years.

Monday, April 23, 2012

War and (Metta World) Peace

Even though we may aspire to hold only peaceful intentions, we still have trouble controlling our violent natures. That was proven in last night's Lakers game against Oklahoma City, a game marred by the shocking act by the recently-minted  Metta World Peace (formerly known as Ron Artest), of sharply elbowing opposing player James Harden in the head. Harden may have suffered serious injury, and World Peace will no doubt be suspended for a period of time.

World Peace has a history of aggressive tendencies, but showed a genuine desire to change his nature by changing his name. That may prove a more difficult task than he might have anticipated. First, we're dealing with human nature, which is not so easy to change. And second, we're dealing with human nature in a competitive environment. An environment that rewards aggressive play within the rules, and sometimes rewards overstepping the rules.

The legal world also rewards aggressive play within the rules, or even overstepping the rules when you can get away with it. (I'm not advocating overstepping the rules; just noting that you don't always get caught for crossing the line.) The legal system is based as much on controlled violence as basketball is. It evolved from violent beginnings, as I've discussed in previous posts, from the ancient cycle of revenge killings, to the medieval trial by battle and trial by ordeal, to our current adversarial system of non-violent combat on the floor of the courtroom. Those of us who are interested in alternative dispute resolution sometimes think we can change the fundamental nature of the process. But our competitive natures, the competing desires of the participants, and the competitive stakes of the conflicts we are involved in, often get the better of us.

Hardly anyone involved in mediation has fully bought into the idea that we are all supposed to work together with the other side in a collaborative effort to solve a destructive problem in a mutually beneficial way. More often, the participants are just trying to win by negotiation as much or more as they can gain in the courtroom, which is only natural. And they know that if they can't achieve their goals in mediation, they retain the right to go back to slugging it out in court with their adversaries. We have all encountered parties in mediation who view every part of the process as a sport. They view mediation as merely a continuation of the conflict by other means. If fighting is natural to you, if you see the world as hostile and competitive, and if you're already engaged in an adversarial process, it is extremely difficult to adopt the mantle of peace. Remember what the president says near the end of Dr. Strangelove when a scuffle breaks out involving the Russian ambassador? "Gentlemen, you can't fight here. This is the war room!" Well, even if you call it the peace room, a fight might still break out once in a while.

Friday, April 13, 2012

Values

Oftentimes, all we need to do to resolve a dispute is arrive at an agreed-upon value for the subject of the dispute--whether that is a lawsuit, or a company, or a piece of property. It therefore behooves the parties to come to mediation armed with as much objective information as they can get that would support the value they are seeking. In the case of property, that might be an appraisal. In the case of a lawsuit, that might be legal authority or jury verdict information. I mediated a case recently where the parties were on the verge of signing a deal, based on a shared understanding of an item's potential value. In reviewing their file before making this commitment, however, one side discovered some new information that changed their opinion, and walked out. Better preparation might have avoided this outcome.

I was involved in another situation where one of the parties might have been overly focused on obtaining objective information about the value of the subject of the dispute, wanting more and more detailed information about how a judge might rule on some issues, and how the item in dispute might be appraised, before even commencing a negotiation. I say "overly focused" because it is often impossible to arrive at an objective evaluation of the value of what is at stake in a dispute. A range of outcomes is possible in every case, based on how different judges or juries might decide certain issues, or how the evidence might be presented. Those decisions are not always based on objective or rational factors.

Parties are often uncomfortable with that inherent uncertainty. Sometimes even more importantly, parties lose sight of the fact that their continued litigation over the value of whatever is in dispute could wholly destroy any value to be gained. In other words, it may cost more to fight over something than the thing is worth. That means the parties need to trust themselves to arrive at an evaluation of a reasonable price at which a dispute can be settled.

Sometimes parties come to mediation expecting the neutral to provide the objective valuation they are looking for. They might be shortchanging themselves if they do that. Even an expert in the field, or an experienced judge, can only arrive at one possible independent valuation of the problem, which may not be any more accurate than another. A neutral's recommendation may well be skewed toward one end or the other of the range of possible valuations of the subject of the dispute. Accepting that recommendation may not lead to a better result than the parties could have obtained themselves. I'll let people in on a mediator's trade secret: The fact is that most mediators' recommendations are not entirely based on a true objective determination of the value of the item, but rather on what the mediator thinks both sides are likely to be able to agree on. In other words, when you ask for a neutral evaluation, you might just be getting the neutral's evaluation of what you yourself are thinking.

The true value of the subject of a dispute is the value that the parties arrive at themselves, just as the true value of any piece of property in a commercial transaction is the amount that a willing buyer would pay a willing seller for it. Today, our local bankruptcy court approved the acquisition of the LA Dodgers by a group led by Magic Johnson, for more than $2 billion. Many experts seem to think the buyers paid too much, based on objective measures of future business projections. But nobody can say that for sure. The buyers and the seller both seem happy with the deal. The buyers had many reasons, not wholly based on an objective appraisal of team's value, for wanting to pay whatever it took to acquire this unique asset. Maximizing their return on investment may not be their only goal. The only way we can measure whether the buyers  made a wise decision, will be to check back and see if Magic is still smiling in a couple of years.

I like to ask parties at the conclusion of a negotiation how they think they will feel about their decision the next morning, or perhaps a year from the date of settlement. Most likely the amount they paid, or accepted, to resolve the dispute, will recede in significance, and they will be glad they put the dispute behind them.

(AP photo)