Saturday, November 30, 2013

House of Cards

I've finally been catching up on the first season of the TV series House of Cards. The hero, House Majority Whip Frank Underwood, played by Kevin Spacey, is a ruthless and cynical politician interested in obtaining power and using it. He repeatedly gets the better of his adversaries by his willingness to resort to lies and tricks, implying that such unscrupulousness is necessary to get ahead in politics, and that those who are unwilling to resort to underhanded tactics are going to be left behind.

It's a popular view of negotiation in general, that successful negotiators need to use trickery and deception to get the better of their adversaries on the other side of the table. The trouble is that the more we buy into this view, the more there is going to be resistance to resolving conflict through negotiation. After all, why should parties in conflict choose a process of resolution in which the outcome is determined by lies, tricks or games? Unless they think they are masters of negotiation themselves, or that they can hire experts to help put one over on the other side, it would seem more natural for litigants instead to prefer a system with procedural safeguards designed to provide transparency and fairness. We can't take pride in suggesting that parties resolve conflicts by means of sleazy, backroom deals.

What we should take away from popular depictions of the ruthless master negotiator is that this style of negotiation is not only distasteful, it also carries serious costs and risks. And it doesn't always even work. When Congressman Underwood gets the better of the teachers' union in negotiations by lying to them about what is going to be contained in the final Education Bill, they retaliate by causing a devastating nationwide teachers' strike. When he causes scandals to derail the ambitions of political adversaries, he creates enemies. The real message of a show like House of Cards should be that cheating, lying and other underhanded tactics do not necessarily lead to good results at all, and these methods also cost their practitioners their souls. And to some extent the show does communicate this message, though as with other anti-hero dramas like The Godfather, the show still ends up glorifying the despicable lifestyles it is condemning at the same time.

We don't see much on House of Cards about whether the underlying interests of these politicians are being satisfied by their games, or whether they are accomplishing anything of substance at all on a policy level. All we see are empty power struggles. As the title of the show suggests, this is the kind of game that can only lead to collapse.

People need to understand that the way negotiation actually works is by a process of communication and understanding that allows each side to appreciate both their own and the other side's points of view and interests, and to design solutions that best serve both side's interests.  A process that is about winning at any cost is not designed to satisfy either side's interests, and should also never be accepted as a legitimate form of conflict resolution.

Monday, November 25, 2013

Judging success in negotiations

Over the weekend, negotiators in Geneva achieved what many are calling an historic agreement with the Iranian government. What was achieved is an interim agreement, effective for the next six months, that essentially freezes Iranian nuclear development and allows for the lifting of some international sanctions against Iran. During that time, the parties will attempt to negotiate a more comprehensive agreement that satisfies the world community's demand that Iran be precluded from developing nuclear weapons while moving toward normalized economic and political relations with Iran.

Before the ink is even dry on this agreement, we are hearing a wide variety of reactions, most of which are predictable. Some are already heralding the agreement as President Obama's greatest foreign policy achievement, even though it seems a bit early to make that judgment. Others are condemning the agreement as a threat to peace. It's not just that the critics have not taken the time to study the agreement and give a thoughtful, measured response, or that more time is needed to determine whether this agreement will be successful or not. The real problem is that most critics are judging this agreement by the wrong criteria. They are complaining that it does not do enough to restrain or dismantle Iran's nuclear program; or that it relies too much on trust of an untrustworthy adversary; or that it lets our guard down by dismantling the sanctions program without getting enough in return. All of these criticisms measure the agreement against a hypothetical, better agreement. The correct way to judge the fairness of an agreement, however, is not to compare it to the deal we wish we could make, but instead to compare it to the alternative of no agreement. Are we better off with this agreement, or without any agreement? That is the relevant question.

Criticizing an agreement because it does not achieve as much as one side hoped it would achieve is usually a pointless exercise. What critics are doing in that situation is simply attacking the negotiating skills of our own side's representatives, or arguing that we could have achieved more by force or sanctions than by diplomacy. Now it could be true that our side could have made a better deal (though I haven't seen anyone make a convincing case for that yet). But that is a judgment best left to historians. Right now we are stuck the agreement that our chosen representatives actually made. We have no reason to think they did not gain as much as was possible at the negotiating table. In any event, it is bad form to second guess them. Even worse is to suggest that we could have obtained better terms through some other means besides diplomacy. That is also a useless thing to tell our diplomatic team on their way back from the table. Why did we send them off to Geneva in the first place?

If there are valid criticisms of the deal to be made, they must be based on showing that we would be better off with no deal at all with Iran, than with an imperfect deal. But without any deal, the Iranians could engage in whatever nuclear development they want. Without a deal the Iranian government is treated as an outlaw nation instead of being given incentives to abide by international norms. With a deal, on the other hand, Iran is being forced to make some changes, albeit not as many as the critics would want. With a deal, Iran will be hindered for at least some period of time from developing nuclear weapons. By these criteria, most people would agree that we are better off with a deal than without a deal.

Parties in conflict should not compare what they have gained through negotiations with what they wish they had, or what they think they should have in an ideal world. They should only compare what they have obtained by agreement as opposed to the most likely available alternatives. By that measure, it seems that diplomacy has yielded success thus far.

 Fabrice Coffrini/AFP/Getty Images

Friday, November 22, 2013

Going nuclear

Next time somebody tells you they don't want to give an inch to the other side in a negotiation or litigation, it might help to suggest to them that they might want to be more practical than our Congress. You probably don't risk having an argument if your friend or client happens to be from the opposite political party as you. The one thing that most Americans seem able to agree on, no matter what their political persuasion, is that they hate Congress.

In the latest example of Congress's ineptitude, we saw this week the spectacle of Senate Democrats deciding to change the rules of that body by a simple majority vote in the middle of a session, something that had never before been done in history; a move that has infuriated the other side and that invites retaliation in the future. How did we get to that point?

Last June, President Obama submitted the names of three appointees to the D.C. Circuit Court of Appeals, probably the federal judiciary's most powerful court after the Supreme Court. Submitting three names at once could have been seen as an offer to negotiate. Perhaps the Democrats would have settled for having one or two of those appointees blocked. Instead the Republican Senate minority blocked all three. At that point there was no more half a loaf that either side could accept in this battle. It was going to be all three judges or nothing. Republicans might have figured they could get away with blocking all three because the Democrats' only option was to set the dangerous precedent of blowing up Senate rules and tradition to get these nominees confirmed--the so-called "nuclear" option. And Democrats must have figured they had been pushed so far that they had no choice but to accept the costs and risks of exercising that option.

Politics is supposed to represent the art of the possible; it is supposed to encourage compromise. But at times in history, one or both factions in government instead see their perpetual ideological struggle as a matter of principle that does not allow for compromise. They would rather risk getting nothing than settle for half a loaf. We appear to be living at one of those times in our history.

At this point, the consequences of going nuclear are hard to predict. In the long run, the result might be judged a clear victory for one side or the other. The limitation or elimination of the filibuster might turn out to represent a valuable reform. Maybe this change will even encourage Americans to like Congress a little more. But at least in the short run, there can be no doubt that the refusal to work out a negotiated resolution of the dispute over presidential appointments has caused serious strains in the relationship between the two political parties, and has resulted in an "all or nothing" approach to governing that probably could have been avoided. Even the most ardent proponents of the Democrats' decision to drop the nuclear bomb recognize that they have destroyed a tool that they might wish they still had at their disposal the next time they find themselves in the minority.

For parties involved in perhaps less momentous conflicts, ask yourselves if this conflict is really a matter of principle. Is it really a power struggle that you must win or lose? Are you willing to risk total failure? Or can your goals be better realized through an agreement with the other side that promises practical benefits and does not risk destroying a relationship that may be useful or necessary in the future?

Friday, November 15, 2013

Mediator certification in California

Over the past year, I participated in a committee formed by the Southern California Mediation Association, and chaired by SCMA past president Barbara Brown, to study the question of mediator certification or regulation. We started our work without any preconceived agenda, knowing only that our organization had opposed a proposal to have mediators regulated by the California State Bar. We were against that, but we did not yet know what we were for. We knew that there were a wide range of views on this topic within our own organization, and also learned that this issue had stymied bigger organizations that ours, with the ABA Dispute Resolution Section as well as the Association for Conflict Resolution both unable to reach consensus. Here's how we summarized the split in the ADR community, from the introduction to the report our committee issued last month:
On the one hand, many practitioners see no compelling need for regulation or certification, as there has been no public outcry for it.  They see the advantages to keeping the field open as to mediators’ styles and backgrounds.  On the other hand, many mediators desire a credential that would be of benefit to themselves and the public. They are unhappy that persons with minimal or no training can hold themselves out as mediators, in some cases giving parties who attend mediations an unfavorable view of the field.  These mediators favor some sort of credentialing out of interest in promoting and supporting the highest standards for our field and, for some, out of fear that unless we mediators regulate or certify ourselves, someone else will do it for us.
I'm proud to say that in contrast to attempts by other groups to solve this problem, our committee was able to reach a consensus. What we ended up supporting, a position that we believe also has substantial support within our own organization, is a system of voluntary certification, which we hope will be endorsed by a broad swath of mediation organizations in the state. By making certification voluntary, rather than mandatory, we hope to keep pathways open for volunteer community mediators, who would oppose attempts to create any sort of guild. But by supporting a broadly-recognized voluntary certification program, we hope to serve the interests of professional mediators who desire the development of standards and practices, and the imprimatur of a credential that will assure the public that a certified mediator has at least met certain recognized standards of competence.

Our proposal would raise the bar for mediators above the typical 30 hour course required for membership on court mediation panels and community mediation programs. In addition to taking a set number of hours of coursework, including an ethics component, a certified mediator would also have to demonstrate practical experience, by for example conducting a number of hours of volunteer mediations, and also engage in some professional activity.

Thus, the factors we deemed crucial to the success of this project are first, that the standards for certification be rigorous enough that they serve the purpose of identifying well-qualified mediators. Second, that these standards be recognized across a spectrum of organizations so as to make the credential well-known, meaningful and uniform, in contrast to the hodge-podge of credentialing indicators that exist in the field today.

Our next task is to circulate the committee’s report to the larger mediation community--educational institutions, mediation provider organizations, and organizations statewide that serve the mediation community--to form a consortium of organizations that agree to participate in implementing a new certification program in California.

The full report, including appendices, footnotes and other materials, can be found on SCMA's fall conference journal page, under the heading workshop 3 in the first set of workshops.