Friday, October 4, 2013

When not to negotiate

Mediators tend to believe practically every conflict can be resolved through negotiation, and that settlement is almost always better than the alternatives of continued conflict or an adversarial form of conflict resolution like trial. Mediators like to quote Abraham Lincoln's admonition to discourage litigation and persuade neighbors to compromise, because lawyers do the most good as peacemakers. But Lincoln went on as president to wage war as fiercely as the country had ever seen. Did he forget his own advice to try to reach a negotiated resolution of conflict? Or was he compelled by circumstances to fight, offering the other side only the option of surrender?

My prior post about hostage-taking brings to mind situations where it is impossible, or inadvisable, to negotiate with the terrorists on the other side of a conflict. Currently we are in day 4 of a federal government shutdown. President Obama, famous for always being willing to compromise to make a deal, is this time refusing to offer any deal at all to end the shutdown. The administration is leaving the House Republicans with no alternatives but capitulation or extending the current crisis. I'm not going to opine as to whether the White House strategy is right or wrong, but the current stalemate does raise the question whether some guidelines can be developed for helping parties decide when it might be appropriate to refuse to negotiate.

Here are some situations that might call for walking out of negotiations:

1. When the other side's demands are unreasonable. Tea Party Republicans probably understood that the Obama administration was never going to negotiate their demand to de-fund its signature legislative accomplishment, the Affordable Care Act. They were merely making a last ditch, desperate stand against the measure taking effect. In the absence of the popular uprising they were hoping to start, they are never going to be able to achieve their objective. Similarly, when a party in a business deal or a lawsuit makes a demand that they should know the other side is never going to agree to, and can only be achieved, if at all, through a miraculous court ruling or similar event, there is nothing to negotiate. For negotiations to proceed, parties have to communicate in some fashion that they are only setting forth an opening demand that they are willing to modify, or that they are not serious about their position.

2.  When the other side's methods are intolerable. The Obama administration has been trying to communicate the message that it's not ok to mess with the full faith and credit of the United States of America. When the president in 2011 negotiated a budget deal under the opposition's threat of refusing to raise the debt ceiling, the Treasury got so close to default that the whole nation's credit rating was downgraded. This time, President Obama has announced loudly and repeatedly that there will be no negotiations over raising the debt ceiling. It is just something that Congress must do whenever it has authorized spending levels that require additional borrowing. Similarly, when adversaries demand ransom for hostage-taking, or threaten acts of terrorism if their demands are not met, it seems legitimate to refuse to negotiate. Sometimes companies will continue to defend a case even where continued litigation will cost more than meeting the demand. They do that to discourage new potential claims. Parties who refuse to give in to tactics that they perceive as illegitimate are taking the risk that the other side will carry out their dangerous threats, but refusing to negotiate might sometimes be the only way to communicate to the other side that their tactics are unacceptable.

3.  When there is a matter of principle at stake. This might be the most dangerous situation, and a recipe for perpetual conflict, because everyone has the right to define their own principles, and one side's cherished principles sometimes conflict with the non-negotiable demands of the other side. Both sides in the budget wars have invoked their principles, and that is one reason the conflict is so intractable. Parties in lawsuits will also sometimes say they cannot settle as a matter of principle, and then it is necessary to explore whether there is a way of resolving the dispute while keeping their principles intact, or whether there are higher values at stake that allow the compromise of certain principles.

Understand that these are not rules for when parties SHOULD refuse to negotiate. Parties will sometimes continue to negotiate in all of these situations. I am only trying to identify situations in which it might be understandable for parties to refuse to negotiate. Not all wars can be avoided, and not all lawsuits should be settled. Just the vast majority of them. But when the conflict cannot be resolved by negotiation, the reasons above are usually in play.

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