Trump & Congress Conduct Crash Course In Bad Mediation Practices.

March 7, 2019By Bill RatliffUncategorized

Justice Potter Stewart is the author of a quote we’ve probably all heard. Wrestling to define what constituted pornography, he said, “I know it when I see it.” The same thing might be said for bad negotiating tactics. Sadly, we’ve all had front row seats to recent negotiations conducted so poorly, they’re likely one day to inspire full-length textbooks and college courses.

I recently read an article on the latest DC debacle by Joshua M. Javits, a labor law mediator and arbitrator. The article pointed out the numerous basic negotiating principles violated by both parties over the border wall. I find all this particularly surprising — given the deep pride President Trump takes in claiming to be an expert dealmaker and negotiator.

Javits lists the following tenets of bargaining that Trump and Congress have both ignored:

Don’t exercise leverage or take “final” positions at the start of negotiations.
Trump has essentially said “It’s my way or the highway” by demanding $5.7 billion for the wall. Similarly, congressional leaders took the extreme position by declaring $0 in appropriations for the wall — “Take it or leave it.” Both sides dug in and refused to consider the other’s “interest.”

Don’t go backwards.
It’s rarely (if ever) helpful to back-up from prior negotiations. It’s been said that President Trump had agreed to a $1.6 billion appropriation until he was criticized, then he went back to his original demand for $5.7 billion. Which is why I’ll add to Javits’ commentary here with this advice: Be a gracious “winner.” If for no other reason, because it’s the right thing to do — but at least be gracious until after the deal is signed.

Expand the pie.
The parties were stuck at $5.7 billion versus $0. And yet, numerous other issues were clearly in play — including DACA and immigration reform — to produce a win-win negotiation for both sides.

Seek incremental change.
Trump wanted all or nothing. Had he gotten a first installment for the wall, he could have begun the project — and would probably have an easier time getting future installments funded.

Find common ground and build from there.
Both sides have expressed interest in, and concern for, “border security.” No doubt, there are many ways to address that interest. Creativity and flexibility in negotiations would have allowed this common interest to be addressed.

Choose a key player to act as a mediator.
Trump and Pelosi do not need to be conducting negotiations face to face. Surely, they each have trusted representatives who aren’t as emotionally invested in this issue, and who could meet outside the presence of cameras — with or without a neutral third party — and craft a compromise.

As I discussed in an earlier post, we all have the need to be right. When we allow pride to interfere with our better judgment, we’re asking for trouble. If both sides on the wall issue would take the time to consider each other’s interests and, more importantly, the greater good, they could easily craft a win/win compromise.

Consider, in relative terms, what the two sides are fighting over: Given its projected $4.407 trillion budget for 2019, shutting down the US Government for 35 days over a $5.7 billion project is like a $100,000 wage-earner conducting a month-long strike over a $129 expense item.

The issue between Trump and Pelosi has now shifted to whether the wall is a “National Emergency.” Hopefully, someday soon, we’ll see a return to sensible negotiations on this issue — but this latest development is hardly cause for optimism.

As we sit on the sidelines shaking our heads, let’s use this occasion to remind ourselves that the basic tenets of good negotiation remain the same — whether you’re negotiating a real estate contract, a car wreck settlement or a border wall.

And as always, enjoy your journey!

 

Please Click Here if you’d like to review my calendar of available dates and schedule a mediation with me. And thank you!
—Bill Ratliff

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