Monday, January 30, 2017

"Soft" and "Hard" Negotiating Styles

When you look at the literature on negotiating, you tend to find (at least) two schools of thought. One, exemplified by Fisher and Ury's Getting to Yes and its progeny, is a "win-win" approach that emphasizes communication and exploration of parties' underlying interests. The other is more of a "win-lose" philosophy that emphasizes getting the upper hand in negotiations and gaining profits for one side at the expense of the other. Some have labeled these as "soft" or "hard" approaches to negotiation.

Before trying to evaluate which approach to negotiation has more validity, I should note that there is some overlap between the two camps. An interest-based bargainer might say that being mindful of the other side's interests does not require you to sacrifice your own for the sake of a deal. Thus, it is not inconsistent with interest-based bargaining to make efforts to get the best deal you can.  On the other side, even the hardest of hard-boiled negotiators tend to recognize that the deal has to have some value for the other side, otherwise they will not enter into it, or they will not be able to perform it down the road. Lots of negotiators favor combinations of the two methods, following the time-honored "good cop-bad cop" technique.

One of the claims to fame of our new president is that he is an expert negotiator. He brags about his deal-making prowess, he has written books on the topic of negotiation; and his campaign was based in large part on promises to negotiate better deals for this country, especially on trade. President Trump's ideas about negotiating decidedly fall into the second camp. Admiring his tough talk, Trump's supporters believe he will get better terms from our trading partners, and dissuade companies from moving factories overseas, while Trump's detractors see him as a bully who will exacerbate rather than resolve conflict. Trump himself talks a lot about "winning."

President Obama, on the other hand, obviously exemplifies the "softer" approach that tends to be favored by mediators. He talks about finding consensus, and working together with people of different views to create constructive solutions. I have always thought of Obama as a mediator or conciliator himself, not as someone attempting to impose his will on others. I believe his style accounted for a lot of his successes, but he faced criticism from both supporters and opponents for not being "tough" enough. (At times, however, when Obama's opponents weren't complaining about how weak he was, they were attacking him for being dictatorial.)

This highly-charged election season can be seen in part as a referendum on negotiating philosophy. We are obviously deeply divided on this question, but it might be comforting to know that it is an issue more of style than substance. (Not that there aren't issues of substance that also divide us, but I'm not talking about those right now.) The country has now been jolted into an abrupt shift from one style to another, and the transition has been far from smooth. It remains to be seen, of course, how successful the "tough" approach to negotiating will prove.

Trump can already point to signs of success in getting companies to back down from plans to shift operations to other countries. He has hit some bumps, on the other hand, in negotiating with Mexico on who will pay for the planned border wall. Trump's speeches boasting that he would make Mexico pay may have gone down well with supporters, but this kind of talk was probably humiliating to Mexico, and has only intensified their opposition to the idea. To save face, Mexico's president has already canceled a meeting with the new president. And President Trump has somewhat softened his tone, now arguing that building the wall would be in Mexico's interests as much as ours. (Imagine Donald Trump, acting considerate of the opposing party's interests!) Trump says that he believes that torture works, but he also said he will defer to the new Secretary of Defense, who thinks he can get more out of a detainee with a couple of beers and a pack of cigarettes than by resorting to water torture. So stay tuned, and we'll find out how tough the tough talk really is, and how well it is working.

Thursday, January 19, 2017

Attitude

Parties in conflict may face a choice among various processes for conflict resolution--litigation, arbitration, mediation, or some other formal or informal process. Attorneys are accustomed to presenting their clients with this array of options, and explaining the pros and cons of each. But the choice of process may turn out to be less important in many cases than the choice of approach to resolving the conflict.

Parties choosing litigation, for example, are likely to enter that process with an adversarial mindset, filing every possible motion, and disputing every assertion made by the other side. This is the way many of us--including myself--were trained to litigate. But litigation can also be conducted with a more cooperative attitude, and nowadays courts tend to encourage parties to work out disputes over pleadings, discovery and other pre-trial issues in a more collaborative manner. In many cases, parties forego a lot of permitted discovery and motion practice in the hope of resolving the case without incurring unnecessary costs. Litigation allows room for collaboration and negotiation.

Parties entering into mediation may understand that the process is supposed to encourage sharing of information and proposals for constructive solutions. Frequently, however, they arrive at mediation with the same adversarial attitude that we associate with litigation, determined to argue their case vociferously, and give in only grudgingly to their adversary's demands. Sometimes that kind of belligerent attitude can even be effective in achieving a more favorable settlement. And some mediators conduct mediation in a quasi-judicial manner, offering their evaluations of the parties' respective positions on the merits as if they were being presented in court. Mediation allows for strident advocacy and adversarial tactics.

I'm not suggesting that a cooperative approach is always better than an adversarial one. Sometimes you have to fight. What I am suggesting is that parties consider their approach to conflict as carefully as they consider the process for resolving their conflict. And most of the time, they will probably find that they can achieve more of their goals when they adopt a more cooperative attitude, whether they find themselves in court or in a more informal setting.