BATNA:The Negotiator’s Mistress

The genesis of this article was spawned when speaking with a participant in a negotiation regarding his perceived BATNA that basically prevented him from closing a quality deal because he was convinced he had a better option.  So what is BATNA and how does it serve the negotiator?  This concept was first introduced to negotiators in the popular book by Fisher & Ury entitled “Getting to Yes”.  BATNA is an acronym for Best Alternative To  A Negotiated Agreement. When implementing BATNA properly it requires the negotiator to examine what are the alternatives if the current deal in progress is not successful. BATNA is designed to protect the negotiator from accepting an agreement that should be rejected—basically serving as a measuring device. It allows the negotiator to be creative and make the most of the assets the negotiator has to work with to ensure that their needs are satisfied. Fisher & Ury designed BATNA with good intentions to help negotiators create higher quality deals. From their perspective without a BATNA there is a great danger to the negotiator to be overly committed to reaching an agreement because the negotiator has not developed any alternatives. As a result the negotiator may be inclined to accept a subpar deal because they have no other options.

However, with every new drug, there are side effects that could be harmful to the user. Intrinsically, during the negotiation process the negotiator can overestimate the BATNA which potentially could cause death to a quality deal. One of the unintended consequences of BATNA is the emotional stubbornness of the “cock sure” negotiator that thinks they possess an exceptional BATNA. Consequently, the negotiator’s style changes or is altered by the perceived strength of the BATNA that ultimately interferes with the natural outcome of the process. As professor Guhan Subramanian simply states you need to be careful “that you are not giving up a good deal in hand for a BATNA in the bush!”   The alternative is so well developed that it becomes appealing—interfering with the actual negotiation because the negotiator has convinced themselves that the alternative is so good that if the other party does not give them everything that they want a quick trigger is pulled and the initiation of the BATNA is in full execution. Unfortunately, quickly the negotiator discovers that the BATNA is not as good when it is the actual option that is why it is a BATNA in the first place. Therefore, if you fall in love with the BATNA she will always look better than the deal in front of you until you attempt to count on her. Yes BATNA serving as the negotiator’s mistress has ruined plenty of quality deals and will continue to do so if the negotiator does not exercise the discipline that it takes to create a quality deal.

 Application: The U.S. and the Vietnamese Mistress I wanted to examine one of the major events of the 20^th Century where the BATNA served as the negotiator’s mistress and prevented the U.S. negotiators from reaching a functional agreement on the issue of Vietnam at the Geneva Conference of 1954.

The 1954 Geneva Accords: The Geneva Conference was held from April 26^th – July 20^th 1954 to resolve issues from the Korean War and bring an end to the First Indochina War between France and the Viet Minh (DRV). With the conference underway the final and decisive battle of Dien Bien Phu was coming to a close. On May 7^th the day before the Geneva Conference turned its focus to Indochina, the French had fallen to the Democratic Republic of Vietnam (DRV) at Dien Bien Phu. This event provided leverage at the negotiating table for the DRV or so it seemed. With pressure from their allies (Russia & China) the DRV was encouraged to accept a short-term panacea to the issues in Indochina rather than a decisive permanent resolution. As a result, the Conference Final Declaration that became known as the Geneva Accords called for the following: 1) separating Vietnam at the 17^th parallel with a Northern & Southern region; 2) cease fire agreements covering Cambodia, Laos and Vietnam and 3) General Elections would be held within 2 years (by July 1956) to unify Vietnam. These elections would be internationally supervised by India, Poland and Canada. This final aspect of the Geneva Accords posed a significant complication. Cambodia, United Kingdom, DRV, France, Laos, Soviet Union and the People’s Republic of China all accepted these elements of the agreement. However, the State of Vietnam (South Vietnam) and The United States refused to accept or sign the agreement but only acknowledge it. The Geneva Accords did not produce a durable solution to the Indochina Conflict but only a military truce which allowed the French and DRV to cease hostilities. After the convention John Foster Dulles came to view the French with distain. The United States spent over 2 billion dollars to support the French fight against communism and he believed that they simply quit and went home to create diplomatic relations with the DRV and leave the U.S. twisting in the breeze. So why didn’t the U.S. take a more active role to reach a more permanent agreement on the issue of Vietnam while all of the parties involved were at the table?

Creation of the BATNA: John Foster Dulles’s Mistress There are two contributing factors that led to the BATNA that the United States applied to the situation in South East Asia. First of all, the mindset that produced the BATNA was a combination of philosophies & beliefs that were not entirely accurate. This fatal flaw led to a very defective decision by the United States.  The 1950”s cold war mentality had a severe grip on President Eisenhower and members of his cabinet in particular John Foster Dulles. The U.S. adhered to a “containment” policy when it came to communism and viewed communism as a monolithic block bent on world domination.  In conjunction with this policy, was the belief in the “Domino Theory” that purported if the small country of Vietnam fell to communism then all of the other little countries in Southeast Asia would also fall like dominoes. These beliefs became the foundation upon which the BATNA at the Geneva Convention of 1954 was built.

The second major contributing factor in the creation of the U.S. BATNA was the assessment of the players involved in the situation. Two of the significant players were Ho Chi Minh (he had at least 17 names during the course of his life) and Ngo Dinh Diem.

Ho Chi Minh was a very complicated figure that had been fighting for Vietnam’s independence his entire life.  The United States first encountered him at the Paris Peace Conference in Versailles following the Great War. Going by the name of Nguyen Ai Quoc (Nguyen the Patriot) he lobbied for Vietnam’s independence but like most other smaller nations at Versailles was kicked to the curb by the Big 4. In 1945 toward the end of the Second World War the United States crossed paths with the now Ho Chi Minh (“He who enlightens”) again. Archimedes Patty an OSS officer was in the process of funding and training Ho Chi Minh’s Viet Minh to fight against the Japanese in Indo China on behalf of the U.S. Government when the war ended abruptly. Patty got to know Ho pretty well during this time. His assessment of Ho was that he was a nationalist first and communist second. Meaning Ho Chi Minh wanted a united independent Vietnam with a communist form of government. This assessment was supported by Abbot Low Moffat Head of the South East Asia Division of the U.S. State Department until 1947.  However, John Foster Dulles painted Ho Chi Minh with a Big Red Communist Brush which was not accurate. Moreover, Uncle Ho was very popular among the people and if an election were to be held in the near future in accordance with the Geneva Accords to decide the future of Vietnam he would probably win. This outcome would be a complete disaster in the eyes of John Foster Dulles. Therefore the evolving BATNA for the U.S. was to establish a Democratic South Vietnam to compete with Ho Chi Minh and prevent Vietnam from falling victim to the big red communist wave. Nation building as we know it today.

Enter another significant player in this event Ngo Dinh Diem. In June of 1954 during the Geneva Conference Bao Dai the last Emperor of Vietnam appointed Diem Prime Minister of South Vietnam in an effort to attract more U.S. support. John Foster Dulles took the bait and hit the trifecta with Diem. He was anticommunist, opposed the French and was against holding free elections in Vietnam within two years. Diệm quickly deposed Bảo Đại in a fraudulent referendum on October 23, 1955, and declared himself president of the newly-proclaimed Republic of Vietnam three days later. By 1955 he became Dulles’s walking ex post facto BATNA. The beautiful mistress had stolen the eye of United States. Now America’s mandarin was billed by the U.S. as the “miracle man of Asia.” Dulles along with President Eisenhower believed that with American political, financial & military support Diem would become the alternative to the free elections and that would allow Vietnamese citizens to live in the democratic South Vietnam free of communism. This very flawed BATNA prevented the United States from negotiating in earnest at the Geneva Conference and became the gateway to the tragedy known as the American Vietnam War. As a very costly lesson learned, a mistress always looks better until you have to count on her!

 

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The Negotiator and the Lizard King:

 

For years I have used the concept of the reptilian brain as it relates to behavior in the context of a negotiation. I can honest say, the participants have had a lot of fun with it as they learned valuable lessons of the negotiation craft. In fact, I had one class purchase me a 2-foot long plastic lizard to use as a visual in my future classes. However, recently I had a client that just could not understand the role that the reptilian brain plays in a negotiation, frustrating them to the point that they did not even want to use the word. Consequently, I thought there may be a need to revisit our very distinguished guest the “reptilian brain.” For those of you who have completed The Smart Negotiator!® course, this will be a refresher. For those who have just discovered our blog, this may be new material or simply putting a name to what you have already discovered as a practitioner.

First of all, what is the reptilian brain? The reptilian brain is the back part of the brain, or as some argue, our first of three brains. This brain is the most primitive of the three and concerns itself with basic functions. When the reptilian brain becomes the dominant part of the brain, it is known as the R-Complex. Manifested in behavioral characteristics, such as tribal hierarchies, group think, anxiety, fear, aggression and competition. How then does the reptilian brain affect the behavior of the negotiator?

“Riders On The Storm….”

The first way is fairly easy. Negotiation is a ritual–a dance if you will, that takes time. How much time we don’t know. There is no formula for how long a negotiation should last. There are a number of variables that contribute to the actual length of the negotiation. However, the reptile is not a very patient creature and will attempt to urge the negotiator to truncate the process every chance it gets. This anxious urge that you have felt during the course of a negotiation is produced by our ole pal the reptilian brain. Now, the source of this feeling has a face and a name. More specifically, you may find yourself in a negotiation and it has been dragging on. Then, the other party makes a concession and the reptile starts to give you advice that is not conducive to the negotiation process. This impatient little voice says: “quick hurry up! Take it before they change their mind. You don’t want to go home empty handed. Do you?” So you succumb to this reptilian urge and say “yes” accepting the offer from the other party and the reward is you are done. NOT I have completed the negotiation done but finished stick a fork in me done. Yes, life is good for all of the lizards in your head.

To combat this impatient urge, I suggest that the negotiator reject the offer on the table and step back, creating intellectual distance and slowing down the process. At this point, ask yourself, “does the deal on the table satisfy all my needs?”. If yes, then you are ready to accept and move on. However, if it does not, you need to continue the negotiation until it does. If you succumb to the lizard and accept a deal prematurely because of this urge, your final agreement will lack the quality that is typically found in deals made by fundamentally sound negotiators.

“This Is The End…”

The second way that the reptilian brain affects the behavior of a negotiator is more complex. The reptilian brain serves multiple functions. One of these unique functions is to serve as a protectorate from the ugliness of the world around us. In the context of a negotiation, there is a certain amount of stress and psychological discomfort that is ever present. Let’s face it, even in a negotiation that is going well, there is more rejection than acceptance. Rejection causes stress and is naturally present in every negotiation. Stress can also be manufactured by the other party deliberately using “strategic tactics” to transform common stress into lethal forms of psychological discomfort that become the dog whistle for the summoning of the reptile.

So, when does the lizard show up to protect us and save the day? Everyone has a threshold as to how much psychological discomfort that they can tolerate. Once you have reached your maximum level of psychological discomfort, a state of psychological imbalance occurs. Fritz Heider created the “balance theory” during the 1950’s. He argued that when the human mind gets out of psychological balance for whatever reason, it strives to re-establish stasis as a corrective measure. Consequently, when a negotiator has reached their personal maximum level of psychological discomfort, a state of imbalance exists and the reptilian brain is activated. The lizards are released to rescue the negotiator and attempt to create stasis at any cost. Since the reptile is primitive, the solutions offered are not very complex, but can be very damaging to the negotiation. The lizard will focus on the source or root cause of the psychological discomfort and provide solutions that offer immediate relief. In the context of a negotiation, it is usually the other party across the table that has caused the imbalance, for a variety of reasons. Consequently, the reptile’s advice is typically appeasement: “do you want this guy to go away?” “then give it to him and the problem will be resolved”. Yielding to create stasis or caving is the quickest and easiest way to reach agreement. However, it can have a very devastating effect on the final outcome.

On a personal level, the negotiator may have an IQ of 196 and 30 years of experience and none of this will matter, because these assets reside in the neo-cortex of the brain. When the reptilian brain becomes the dominant part of the brain it serves as a gate keeper and the items in the neo-cortex can’t be accessed, because the reptilian brain is busy protecting you. As a negotiator, when you are in a state of acute psychological discomfort, the most primitive part of the brain is now in the command chair and good things are not going to happen to you.

“People Are Strange…”

The type of negotiators who are the most susceptible to reptilian behavior are ones who are a bit on the introverted side or have a low tolerance for psychological discomfort. More specifically, if you have completed the Meyers Briggs psychological profile, it would be individuals who are designated as an “I”. Consequently, when an offer is placed on the table, this type of negotiator does not evaluate the offer on its merit, but rather on how much psychological discomfort it is going to cause them, personally, to accept or reject it. This is simply the wrong criteria. In this case, the other party has managed to shift the focus of the negotiation from the particulars of the deal to the personal well being of the other negotiator. When this situation occurs, as we say in the business, “game over.”

Other negotiators are also affected by the lizard. Negotiators possessing a type-A personality are also susceptible to the R-Complex. However, it affects them differently. The type-A negotiator is hyper- competitive and has a tendency to privilege winning over the quality of the deal. When the level of psychological discomfort rises in a type-A negotiator, the lizard does not use appeasement to establish stasis as with the introverts. Instead, the lizard feeds the beast and promotes aggression to destroy the negotiator across the table that is denying you your bounty. When the frustration of not getting what you want from such an inferior party reaches critical mass, the lizard is activated to restore stasis. The guidance from the reptilian brain is clear: “you want this guy to go away? Crush him!” Anger, threats, yelling, profanity, physically pounding a shoe or fist on the table is typical behavior of a type-A negotiator with the lizard at the wheel. This may be fun and even exciting momentarily. However, this behavior will not produce a quality deal on a consistent basis. If the other party realizes that you have voluntarily taken your eye off of the prize to engage in histrionics as a strategy you risk becoming their entertainment for the day. Again as we say in the business, “game over.”

“Break On Through…”

Now that we have explained what the reptilian brain is, who it affects and how it can interfere with the negotiation process, we need to address corrective measures. First of all, know the difference between general garden variety stress and psychological discomfort. Once you begin to have feelings of uneasiness, this is psychological discomfort and the Lizard King has just paid you a visit. Awareness is key here. Secondly, the psychological discomfort needs to be monitored. How strong is it? How much more can I take and still function as a professional negotiator? Is that Mr. Mojo Risin making a house call? Thirdly, on a personal level, know where your limit is. If you miscalculate and the lizard assumes command, the effect on the negotiation can be disastrous. In the distance you can hear the lizard king singing his favorite song: “This is the end my only friend the end of our elaborate plans the end.” Lastly, manage it. When you feel like the psychological discomfort is increasing to the level of impairment, take corrective measures. Call a caucus to stop the negotiation and rest psychologically. This disengagement allows for the psychological discomfort to subside. Once you feel it has dissipated, you can reengage the other party in the negotiation process and continue to create a quality deal. Once you have neutralized the effect of the reptilian brain on you as a negotiator through awareness and corrective measures, your chance of success has been significantly increased. The Smart Negotiator! ® learns to keep the Lizard King in his place. However, if you are unaware of the concept and misinterpret psychological discomfort as simple stress the situation will become a playground for the lizard. Let me leave you with a thought, if The Doors of perception were cleansed, the concept of the reptilian brain would be perfectly clear.

On a cultural literacy note, James Douglas Morrison from The Doors is the Lizard King. The anagram of Mr Mojo Risin is Jim Morrison.

The Many Faces of the Negotiator

This post explores the different types of negotiators. Attached is the power point from a short presentation that I deliver on The Many Faces of the Negotiator which illustrates the different types of negotiators who participate in the negotiation process. Unfortunately some of these people give the professional negotiator a bad name. At the end of the day the Reptile, Shopper and Tuff Guy are people who masquerade as negotiators and cloak their fatal flaws through their style. Even though they may experience occasional success it is merely coincidental. Only a negotiator acting in a professional manner with a clear “eye on the prize” will experience success on a regular basis. I hope that this presentation will be of help to the reader as it shines a bright light on bad behavior that in some social circles passes for skill. Enjoy The Many Faces of the Negotiator.

Strategy As Deodorant For Unethical Behavior

I was ending a session of The Smart Negotiator® with an exercise entitled: Ethical Questions for Negotiators. It is always interesting to conduct this exercise because ethical behavior is so subjective by nature. The discussions are usually spirited but in the end the audience usually arrives at a sound conclusion.  However, this particular group wandered into some interesting territory. For the first time a group didn’t make the clear distinction between ethical behavior and unethical behavior. They split hairs instead and made the distinction between what was “unprofessional” v. “unethical.” The audience believed that a negotiator’s usage of a variety of questionable methods (tricks) to achieve a deal was the employment of “strategy” rather than simply a negotiator acting in an “unethical” manner.  They didn’t buy into the notion that when a negotiator uses questionable methods strategically to gain an advantage it is unethical. They were more comfortable with the hybrid concept of “unprofessional” to describe this type of negotiator. For example I posed the question “is it acceptable to manipulate deadlines to put the other party at a disadvantage?”  The audience concluded that  it was a clear strategy and there was the possibility that it could be unprofessional but would not go as far as identifying this behavior as unethical. In the 21^st Century have we just grown used to bad behavior in the negotiation process to the point that the color of the unethical has turned completely grey? Or can this whole discussion be summed up in the words of a half-dead folk singer: “the times they are a changing.”  

I will leave you to ponder the quandary for yourself:  if a negotiator  genuinely believes in the concepts of partnership, relationship building, diversity and win-win how could you split the hair of ethical behavior? Consequently, it is the opinion of this author that in many cases the concept of strategy is being used as deodorant in order to rationalize unethical behavior. When does it stop being strategic and become unethical? I think if you have to ask this question you are probably already in some precarious territory. It reminded me of the moment of clarity that came over me when presidential candidate Bill Clinton was asked about drug use. He claimed that he “tried marijuana but didn’t inhale” (ba da bing ba da boom!). 

I have listed some of the Ethical Questions for Negotiators from the exercise for your personal use. Read through each one and draw your own conclusions based on your personal ethical compass. I look forward to your responses.

1. Is it acceptable to use coercion (power, threats or brand) in a negotiation to get the other party to concede?
2. Is there a difference between truth-honesty-full disclosure?
3. Is it acceptable to manipulate deadlines to put the other party at a disadvantage?
4. Is it ethical to play “good guy” – “bad guy” in a negotiation?
5. To deliberately ask for something that you really don’t want just to create tension and show concession behavior?
6. As a prime is it acceptable to tell a subcontractor that “you need to take a 12% challenge or you are off of the program”?
7. To make the other party travel a great distance, then hold the negotiation at 7:00AM?
8. Is it acceptable to say “this is the best that I can do” when it isn’t the truth?
9. If you are a good person is it ok to lie to the other party in a negotiation?

Appeasement and the Infamous Munich Agreement

I was in a class one fall day with a group of perfectly nice people and somehow we got onto the subject of Neville Chamberlin which naturally led to the comment that “the United States doesn’t negotiate with terrorists.”  I asked:  “why to this day do we so strongly condemn Neville Chamberlain instead of Herr Hitler the party that breached the Munich Agreement?”  It seemed like a legitimate question at the time. Suddenly the worm had turned! I could see it in their eyes as they turned on me like a pack of wild jackals coming to pick my bones clean. The room literally erupted with uncontrolled passionate dialogue regarding how he should have known better and perhaps implying it was a cowardly act at best.    I eventually put this fire out and moved on to try and salvage the rest of the day.  However, as a result of this incident my curiosity had been peaked and I decided to look into the Munich Agreement because I was not so quick to make Neville Chamberlain out to be a fool or a coward as he is conveniently portrayed by many.  It is easy from the vantage point of the 21^st Century to articulate with such conviction and clarity what should have happened in 1938. If you listen closely you can hear the echo of every armchair historian screaming “it’s a bad deal turn back don’t sign it or bad things will happen.” To be fair to Neville Chamberlain let’s take a closer look at the Munich Agreement to examine what really happened and place it into proper context.

The Munich Agreement was signed on September 29^th 1938 by Neville Chamberlain (England), Edouard Daladier (France), Benito Mussolini (Italy) and Adolph Hitler (Germany).  The agreement transferred the Sudetenland of Czechoslovakia to Germany in exchange Hitler agreed that Germany would not make any further territorial demands in Europe.  Neville Chamberlain and Edouard Daladier employed the diplomatic philosophy of “appeasement” which is a last ditch effort aimed at avoiding war by making concessions to the aggressor.

Furthermore, the Munich Agreement was signed approximately 20 years after the end of the First World War that left France with 1.3 million dead and Great Britain with 908,000 dead.  These figures don’t include the missing, POW s or wounded.  By contrast the United States lost approximately 126,000 lives in the Great War.  Additionally, Belgium and France had their countries physically devastated by the Great War.  Consequently, their appetite for another European war on the heels of the last one was not very large.  In fact prior to the Munich agreement a public poll in March of 1938 asked the English people “should Britain promise assistance to Czechoslovakia if Germany acts as it did towards Austria?”  43% said no and 24% had no opinion.  Even as late as February 1939 after the signing of the agreement, the British people saw some value in Chamberlain’s strategy.  When asked “which of these views comes closest to your view of Chamberlain’s policy of appeasement?”  28% said  it will lead to lasting peace in Europe while 46% believed that it will keep them out of war long enough to rearm.  

Historical voyeurs want to ignore the psychological impact the carnage and destruction left behind by the Great War had on the participants of the day and examine the Munich Agreement in a vacuum.  This is a luxury that Mr. Chamberlain didn’t have.   It is easy today to cherry pick the facts and conclude that this was a bad idea on the part of England & France.  However, had Hitler fulfilled his end of the agreement this would have been a great agreement.  Knowing what we know now, in essence Chamberlain was trading the Sudetenland for the lives of 60 million people.  It has been estimated that 2% of the world’s population was killed in the Second World War or the equivalent of 60 million people.  If you are judging from the 21^st Century you might want to include these facts to provide proper context.   Would you make that trade? What did Chamberlain loose by signing this agreement? Why not make Hitler responsible for breaching the agreement rather than Neville Chamberlain the culprit for trying to avoid another world war on the Continent? Have we become that casual with human life that an attempt to save the lives of 60 million people is viewed as a bad idea? These are questions that deserve honest answers before we can condemn P.M. Chamberlain.

Legacy – What has Neville Chamberlain left us?

The actions of Neville Chamberlain had a very profound effect on Geo-Political diplomacy moving forward.  The legacy of the Munich Agreement reared its head in 1962 and almost led the United States to a nuclear war during the Cuban Missile Crisis by clouding the vision of the players.  President Kennedy was being accused of being an “appeaser” by the military leadership because he wanted to try diplomacy to avert a nuclear exchange with the Soviet Union. With Neville Chamberlain clearly on their mind the military advisors manufactured immense pressure on President Kennedy to take military action against Cuba because they didn’t want another “Munich.” However, we can say with certainty had President Kennedy not chosen to negotiate with Nikita Khrushchev a nuclear exchange would have occurred taking the lives of millions of people both American & Russian.

In the United States the Munich Agreement has gone through the complete evolution process and now has morphed into “we don’t negotiate with terrorists.”  In the 21^st century any world leader or group we have a conflict with we compare to Hitler and of course any attempt to negotiate with Hitler-types would only produce another Munich Agreement.  This description establishes a perfectly constructed enthymeme which allows the average person the ability to quickly make the right judgment in a complex geo-political situation.

The final step in the complete maturation of the Munich Agreement occurred on September 11^th 2001 when suicide hijackers who were labeled “terrorists” flew their aircraft into the World Trade Center and Pentagon buildings killing approximately 2500 US citizens.  Almost immediately the name Hitler was replaced in the American lexicon with “terrorist” that broadens the scope of possibilities for inclusion into the “non-negotiable” club.  Consequently, any American official not wanting to be accused of “appeasement” can conveniently skip the diplomacy stage altogether and move directly to the use of WMD as a front line acceptable option to resolve geo-political conflict by claiming “we don’t negotiate with terrorists.”    On that September day in 1938 Neville Chamberlain had no idea the lasting effects that his actions would have on future governments.  It has completely changed the way we talk about geo-political events.   Today we use words like negotiation, compromise and appeasement interchangeably collapsing them into synonyms complete with all of the negative connotations associated with Munich.  So what has Neville Chamberlain left us?  He has left every world leader a “hall pass” for their actions that can be rationalized by claiming they want to avoid another Munich.  It is the gift that keeps on giving.  Consequently we conveniently have Neville Chamberlain to blame for ALL of our geo-political actions otherwise we might have to take responsibility ourselves!

“I Can See Clearly Now…”

In The Smart Negotiator!® course I am constantly stressing that participants need to improve their “vision” if they truly want to be a high quality negotiator.  Hence, the question:  what does a skilled negotiator “see” that other people who are engaged in the same situation simply miss?  One of the many aspects of vision, is the ability to distinguish between obstacles and challenges.  Negotiators see challenges to be overcome or worked around to keep the process moving.  Shoppers, on the other hand, see obstacles, which truncate the negotiation process and block the development of the deal. 

This point is often illustrated during a labor/management exercise presented during The Smart Negotiator!® course.  This case has a distinct degree of difficulty, due to the complexity of union contracts.   Inevitably, the lesson of “vision” is on full display as the parties try to navigate through the exercise.  As part of the negotiation context, a hypothetical company owns a tourism business in the nation’s capitol.  For a number of reasons, its drivers are not required to possess a CDL (commercial driver’s license) to operate the buses.  On its face, this issue appears to benefit the employees by providing people without a CDL who have the appropriate skill set to be gainfully employed.  However, drivers working at any of their competitors that are required to possess a valid CDL, earn 30% more in wages.  Moreover, as part of the situation, the company can get a $300,000 rebate in their insurance premiums if they get all (35) of their drivers a CDL.  If the company paid for the training and the employees were “on the clock”, the total one-time spend would be $277,900.  However, there’s a problem:  30% of the drivers are functional illiterates. 

Let’s apply the “vision test” to determine how participants view this situation. A shopper, seeing obstacles, will claim with conviction, that if the company pays for the training, then the employees will leave to get a job with a competitor for 30% more pay.  This shopper sees an obstacle that is framed as an intellectual dead-end forcing the negotiation to take a different direction.  However, the negotiator responds by recognizing the challenge in the situation, claiming that if the company pays for the training of the CDL, the employee must agree to stay for 2-years or pay back the prorated amount of training cost if they leave. 

What about the functional illiterates that are driving for this company?  How is this fact going to be handled by the participants?  As you might guess, the shopper is fatalistic in their assessment (vision).  “These people will never be able to pass the classroom part of the CDL requirement because they can’t read”.  Another manufactured dead-end, requiring a change of direction in the negotiation.  The negotiator understands that these drivers are skillful enough to pass the road and range portion of the CDL blindfolded.  The challenge that the negotiator sees is getting them to pass the written portion of the test.  Many states allow someone to read the written portion of the driver’s test to people who can’t read.  Remember this is a knowledge test not a reading test. This option could be one of the many ways to work around this challenge.  There are other ways to mitigate this challenge–if you are looking!

In this case, as a result of the negotiator seeing challenges, instead of obstacles, they are able to negotiate an agreement that will allow the company to reduce its insurance premiums by $300,000 annually. If you are the owner, this savings is worth the effort.  And if you are the negotiator, it is your professional responsibility.  

Is that a shopper I hear?  Or just Johnny Nash singing “I can see clearly now, the rain has gone.  I can see all obstacles in my way”?   Ah, but through the eyes of The Smart Negotiator, “Gone are the dark clouds that had me blind.  It’s gonna be a bright, bright sun-shiny day”.

Attica: A Deal Not Made

A Smart Negotiator clearly identifies the needs and wants of all parties involved in the deal, while staying true to the distinction between the two entities throughout the entire negotiation process.  By establishing the needs of all parties, the negotiator creates the foundation on which the deal is constructed.  Forty years ago, the line between needs and wants became blurred during negotiations to resolve a crisis at New York’s Attica Correctional Facility, contributing to a stalemate between the prisoners and the state that would eventually leave 39 people dead.

On September 9^th, 1971 approximately 1200 inmates overran “Times Square”, the central intersection at the heart of the state prison in Attica and took control of D-Block.  38 guards and civilian employees were taken hostage. Three guards were beaten in the initial fracas, one of which would die of his wounds 2 days later. 

The root causes of the uprising were overcrowding, racism and poor living conditions.  Attica was designed to handle a maximum of 1600 inmates.  At the time of the uprising, however, Attica was home to over 2200 prisoners.  Approximately 75% of the inmate population was African-American or Hispanic, while 100% of the guards were white males. The prisoners wanted a more culturally diverse guard population to reduce the overt racism within the prison.  Living conditions were better at the Buffalo Zoo.  For instance, prisoners were only allowed one shower per week, one roll of toilet paper per month, pork was part of every meal and Muslim inmates were not allowed to hold religious services.

On the first day of the takeover, inmates created a council to negotiate a settlement with prison officials. Because of a credibility gap between prison officials and inmates, the prisoners also called upon a select group to “oversee” the negotiations and “verify” events.  This group included members of Congress, the New York State legislature, the Black Panther Party, the media and lawyers.  William Kunstler, “Brother Bill” as he was known to the inmates, was asked to represent the prisoners regarding legal issues and began serving as a mediator to try to broker an agreement. The inmates created a list of 31 demands to be addressed to resolve this crisis.  The Corrections Commissioner, Russell G. Oswald agreed to 28 of the 31 demands, most of which were already supported by state and federal law, but had been ignored by unofficial prison policy.   The initial 28 demands dealt primarily with living conditions. The 29^th demand for “transportation to a non-imperialistic country for everyone in D-yard” was quickly dismissed by both parties.   The last two demands were more difficult. 

Demand #30 called for Superintendent Mancusi to be removed from his position immediately.  The prisoners wanted Mancusi replaced immediately with someone who would treat them like people, not animals.  The prisoners personalized this issue, which clouded their vision and left no flexibility to resolving it.  With the other 28 demands that dealt with living conditions having already been met, the prisoners’ needs in this area had been addressed.  The Mancusi issue, a want, could have been treated administratively by promotion or retirement at a later date. However, the shelf-life on any promise or agreement to satisfy this want needed to be longer than the immediacy of the moment. Since it was clearly a want, it didn’t warrant the significance that it was given.  As a result, this want was treated like a need and became a manufactured obstacle to reaching a final agreement.

Demand #31 demanded complete amnesty for everyone in D-yard.  The inmates knew the law. Once one of the guards died from wounds suffered in the initial takeover, it was clear that everyone in D-yard could be charged with felony murder.  Moreover, anyone in D-yard already serving a life sentence could now be subjected to the death penalty.  Realizing that someone would have to be prosecuted, the inmates didn’t want everyone in D-yard to be charged with felony murder.  From a negotiator’s standpoint, the inmates needed some protection from blanket prosecution for the prisoners. Concurrently, the state had a need to prosecute those responsible for the guard’s death.  In this case, the inmates lacked the sophisticated vision of a negotiator. They took a very myopic view and didn’t explore any other options except the binary position of complete amnesty for everyone.  This inflexible position became problematic, as again, it was a want, not a need.  Ironically, William Kunstler “saw” what was transpiring inside D-yard regarding this issue.  However, his vision also became clouded, either by his idealism or the drama of the situation, creating a disconnection from the reality of potential consequences.  This momentary lapse of discipline caused him to take his eye off of the prize, leaving this demand frozen in time as an obstacle to the deal.

Another level of complexity contributing to this situation is recognizing ALL parties involved in the negotiation, even if they are not physically present.  In this case, the absentee Governor of New York State, Nelson Rockefeller, was a major player.  Although the Governor was party to the negotiations from a distance, he had needs that had to be fulfilled as well. From a negotiator’s perspective, extending the deadline would have been very beneficial to all and may have produced workarounds for demands 30 and 31.  However, the Governor controlled the deadline and there was no flexibility. Nelson Rockefeller had a need to protect his political image. He was in the process of putting together his campaign for the 1972 Presidential election and had been criticized by the right wing of the Republican Party for being on the “liberal” side.  Therefore, anything short of an immediate end to the situation would be devastating to his political image.  Consequently, re-taking the prison in a timely manner, even if it turned into a bloodbath, was a political need.  The Governor could not risk being seen as soft on crime.  A brutal re-taking of the prison may not necessarily be viewed as a negative and may even enhance his image in the eyes of the electorate. William Kunstler didn’t recognize the selfishness of the Governor’s needs and was surprised on Monday morning September 13^th, 1971 when New York State Troopers took control of D-yard firing over 2000 rounds of ammunition and killing 39 people (29 inmates and 10 guards). As many as 83 other prisoners were injured seriously enough to require surgery.  After the shooting stopped, Governor Rockefeller publicly praised the State Police for a “superb job.” 

There are many lessons to be learned from Attica on a variety of levels.  From a negotiations perspective, negotiators must demonstrate a genuine commitment to a deal that satisfies the needs of all parties. In this case, the negotiation process broke down when wants were confused with needs and the needs of one party were privileged over all others. The tragic situation at Attica State Prison was certainly not caused by negotiators, but could have been resolved peacefully, if everyone involved had acted like one!

The “F” Word in Negotiation

What is the negotiation “F-word”? It is the word “fair”. Who can say that they haven’t heard “this is a fair deal,” or “this is fair and reasonable.”–or better yet, “I believe that this deal is fair for both of us”? When someone tells you that their offer is fair, you should instinctively reach to protect your wallet. Hopefully, your hand will get there before they do!

The continual use of the “F-word” relative to negotiations provides an interesting perspective, as it is frequently and improperly imposed as the ultimate criteria to gauge success. A successful deal must be functional, not necessarily fair. A functional deal is where both parties have their needs satisfied. Yes, I realize that both functional and fair begin with the letter “F”, but please do not confuse the two. If you put together a fair deal and offer it to the other party and they reject it, what happens then? Here’s what happens: you find yourself selling the deal through persuasion rather than continuing to negotiate.

The persuasive approach tends to lead to arguments that are not germane to the deal-making process and create obstacles to closure. At some point, you become fatigued from this persuasive exercise in futility and your reptilian brain encourages you to offer your bottom line, usually heading for a marginal deal (perhaps fair, but marginal).

Moreover, I am not so sure there is such a thing as a fair deal. I have seen good deals and bad deals, but can’t really say that I have seen a fair deal. Any negotiator can make the case that their position or offer is fair, no matter how far off of the grid it really is. Those who are most vulnerable to a “fair” deal are introverts. Let’s face it, negotiation is a communication nightmare for most people. It ranks right up there with public speaking and snakes in terms of what causes the most psychological discomfort. Even in the most successful deals, there are more statements of rejection than those of acceptance. Consequently, agreeing to “fair” makes perfect sense to introverts and/or linear thinkers, because it causes them the least amount of psychological pain. When psychological discomfort becomes the determining factor in whether to accept or reject an offer, your ability to achieve a quality outcome is diluted. Unfortunately, this gives the other party a ripe opportunity to game you.

This is not to say that introverts or people without an “E” in their Myers-Briggs rating cannot be successful negotiators. On the contrary, some of best negotiators that I have met are classic introverts. They may be very good at it, but they will never like it. Nowhere does it say that you must enjoy the process of negotiation in order to do it well and create quality deals. Consequently, The Smart Negotiator uses “Q” for quality as the word of the day (and the ultimate criteria to gauge success), rather than the “F-word”.