Everyone Knows About Them

Someone mentioned to me that I tend to use a lot of scenarios from international relations for starting points for my Negotiation 101 lessons. It's true.

I do that because they are situations most discerning people know about, even if they have no idea what they would do if they were personally involved. (Heck, I don't know what I would do, if I had a grasp on all the subtle details.) They are also high stakes, and generate some emotion.

The emotion, high stakes, and complexity are what I find make for lessons people will remember, and that is why I use them as takeoff points. They are negotiation situations of the highest water, and worth discussing.

Still, if you have a situation you'd like to use as a starting point - perhaps a situation you really have or expect you might get into - by all means please send it to me at NP(at)NegotiationPro.com and I will try to add a posting.

Thanks very much and Happy Holidays.

Phil Marcus, the Negotiation Pro

That SOB Has To Give Up His Ace Before I’ll Talk With Him.

The recent Iraq Study Group report and the various reactions to it shine a light on a frequent problem in all kinds of negotiation and dispute resolution.

The Study Group recommended that the US and Israel, with slightly different interests, both begin talks with Iran and Syria. The idea for the US is to find a way to extricate itself from Iraq. From what I can tell, Pres. Bush refuses to speak with Iran until and unless Iran in advance gives up its apparent vision of having nuclear weapons.

I am not going to tell the world’s leaders how to solve the Iraq and Israel/Palestine problems. I don’t have all the facts. Still, as I have said, this position shines light on a stance people sometimes take in negotiating. Simply stated, “I will not sit down with that SOB unless he first [gives up his strongest negotiating card, his ace].” Well, you know he is not going to, and things will remain at impasse, likely with continual provocation back and forth.

What’s going on? Some folks think that a negotiating position that strong will pressure the other person to give up his ace and back down. Not likely.

For some folks it isn’t a tactic. They really are that stubborn, and don’t care whether the other person gives up his ace, as long as they don’t have to change their stated position that demands that the other person does give up his ace. That is, it is pure stubbornness, a/k/a “principal.” Things will remain at an impasse with escalating hostility a long time. Just the same as if it were just a negotiating tactic.

How does that impasse get broken down and a deal get done? Maybe it can’t be. Maybe both sides have to be so bloodied they can no longer stand, and the people who eventually take over for them are more reasonable.

There is another way. The person with the unmeetable demand can permit someone to negotiate for him (or her) without apparent authority. This ‘back channel’ can open a door. True, at the start there will be little if any trust on either side. So, why negotiate with someone you don’t trust?

The short answer is if you don’t you will never resolve the issues, and may spend years in hostile disagreement, with each side taking various types of hits. Or break a deal that might be good for both sides.

The longer answer is trust can be built up with a series of small concessions, sometimes as little as the shape of the bargaining table. (Don’t laugh. The negotiations that ended the Viet Nam War took several years and in the beginning focused on that subject.)

The gradual process can help each side understand the other and learn what makes the other tick, partly based on carrying through with promises and on operating in apparent good faith. Note that good faith is not the same as caving in. It means honesty and a degree of candor.

Why negotiate with your enemy? Because, again, if you don’t you will remain at war. That may be as small as continuing exchanges of neighborhood nastiness like throwing garbage over the fence at 2 a.m. or making unnecessary noise. Of course, it can be as large as confrontations of thousands or millions of heavily armed troops. Or something in between. It always means no-one wins. In other words, the alternative to talking with your enemy stinks.

Negotiation 101: Consider sitting down to talk with your sworn enemy or someone you don’t trust a danged bit, because if you don’t the alternative stinks.

Speak reasonably and don't brandish a unilateral

In a recent article, an Israeli foreign policy expert named Gidi Grinstein speaks in favor of negotiation while carrying a big stick to the bargaining table. I do not agree and I will tell you why.

Grinstein’s context is admittedly very specific, namely the Mideast. His primary contentions are that both Israel and Palestine have two problems in common. One is for different internal reasons their governments are weak and instable. Both, although he only mentions Palestine, are subject also to pressures from their internal extremists not to bargain at all, not make peace, coupled with a will to violence. Somehow, he believes these are a reason to always come to the bargaining table brandishing a willingness to resort, if bargaining busts, to doing something unilateral.

That may not necessarily be violent, but not bargained for. As an example, he cites Israel giving up its decades old control over the West Bank. Without making clear why, he says this would be a blow to the Palestine government. I suppose it would deprive them of something to complain about bitterly.

Why not do something unilateral or carry the possibility with you to the table? Imagine yourself across the table from someone with a unilateral he or she displays, such as “I might do this. I might file suit while we are in these talks.” And your reaction? I’d bet something like, “Go ahead and file your effing suit, I’m ready.” Notice that your opponent is not saying “If these talks fail I will be forced to file suit.” That is understood, and your opposite will not see this as intended to break the talks.

Therefore, the key is not whether one has a unilateral available but whether it is brandished, or kept invisible and in quiet reserve. Quiet reserve is consistent with a sincere effort to have useful talks and to create trust. Brandishing … well, that’s obvious.

Negotiation 101: In negotiating any deal you almost always have something you can do unilaterally, like stop selling to or buying from the other side, but refrain from flaunting this unless you want to end serious bargaining.

Drop the "Devil" shit and you will understand your enemy

Like many of us, I have been focused a great deal on the horrific fighting in southern Lebanon and Northern Israel, and how these are part of a much larger drama that also features Iran, Syria, Russia and the US and others. Anyone can see that all this violence needs to stop and the differences—and they are real—be settled at the bargaining table. But how?

For most of us, we cannot even understand what is going on, largely because we see the whole travail through the eyes of a side we feel has been dealt injustice by the other. Actually, it is not so hard to see what is going on and what is going to go on soon in international affairs.

Still, the first step is a very important and difficult one.

Back in the days of the cold war, each side's military and most of their political backers — US and USSR — saw the other as devils. In many case the metaphor was taken quite literally. The "Communists" were "Godless Communists." The demonization was complete.

You cannot understand your enemy's thinking unless you cease thinking of him as the devil. Yes, he remains the enemy, but while he is conspiring with his friends, he does so because he believes YOU are the devil, and are conspiring with YOUR friends to crush him. And you are, because while you are not the devil you believe he is and is plotting to crush you. Which he is. Not because he is the devil, but because he believes you are planning to crush him. Which you are. Because ...

Your enemy's generals are for the most part not diabolical but are charged with protecting their homeland, just as yours are, and they take that seriously, as they are trained and sworn to.

Negotiation 101: Drop the "devil" shit, and you will be able to understand your enemy and negotiate with him to de-escalate violence, and stop or prevent war.

Copyright Comeuppance

It’s not nice to re-use what someone else creates—in fact, it’s illegal. That applies to writings, songs and their performance, artwork, a broad range. Without going into a lot of technical, legal stuff, the basic idea is that creativity is protected by copyright law, and bad guys have to pay.

Even if you cannot prove the bad guy’s profits or your own losses, when someone copies your work the damages are still from $750 to $30,000 plus possible attorney’s fees. If you can prove your losses, the damages may be much higher.

Some interesting recent cases from the world of popular music illustrate. A song called The Lion Sleeps Tonight was written by a fellow in South Africa about 1940. It was sung on recording by a large number of singers and bands, including in the US, but he never got a dime. He is now gone, but his daughters recently signed a settlement by which they will get unspecified millions of dollars in damages and future royalties, and that is only for copyright infringement in Africa. http://www.npr.org/templates/story/story.php?storyId=5300359.

A 1990 NWA song “100 Miles and Runnin’” sampled a three-note guitar riff from a 1975 Funkadelics song called “Get Off Your Ass and Jam.” A federal appeals court headquartered in Cincinnati and covering the Midwest said the law protects even such small samples. http://www.ivanhoffman.com/fairusemusic.html

The Ohio Players 1971 song "Singing In the Morning" was illegally sampled in Notorious B.I.G.’s first album, “Ready to Die,” according to a March 2006 jury verdict. http://en.wikipedia.org/wiki/Ready_to_Die

In January a court decided that the 1950s doo-wop band The Flamingos’ recording, "I Only Have Eyes For You" was used in a commercial without permission. A jury issued a $250,000 verdict against PepsiCo, Inc. http://www.wqad.com/Global/story.asp?S=4434930&nav=menu132_7_1_1

Given this recent trend, and the excitement it will be generating among bands, former band members, and their attorneys, it seems likely potential defendants will be starting to negotiate settlements instead of risking court trials and the expense of defending them.

Negotiating through Media

In a totally connected world governments and others frequently negotiate by public statements they expect to get into newspapers and on TV, and from there to their opposite entities. For example, In January the Israeli government made a public statement through its acting prime minister that it would not talk further toward peace with the Palestinian Authority, now lead by HAMAS, until HAMAS renounces violence.

On its face that looks like a cutoff of talks, but it is not. It is just negotiating publicly. HAMAS is not likely to comply literally, but if it wants to move toward peace, it will make a counter-offer. Perhaps it will agree not to use violence so long as the Israeli government is willing to talk about HAMAS’s ‘just grievances.’ (The latter is my hypothetical, not a HAMAS statement.)

Labor and management, Republicans and Democrats, and other pairings frequently use this channel to negotiate. Why? Two reasons. First, they want to de-escalate but their clients or supporters are in such high dudgeon the representatives cannot be seen in the same room as their counterparts, or they will be seen as selling out their principles. So the idea is to have some talks via the media, spiral down the confrontation, and get to a point where their clientele will accept their talking directly. “We will not talk until they renounce violence” is more peaceful than “We will not talk.”

Alternatively, the point is to intimidate the other side. Then it usually comes with an “or else,” such as “or else Tuesday we will renounce the current contract and start firing union employees.” Either way, however, there are risks.

The big risk is bollixed messages. The media may well change the exact words or thoughts. Mostly that happens by truncation—passing part of the message. Whether by garbling or truncating, if the other side hears it wrong, and it was intended to keep a door open, they may actually raise their rhetoric and make things worse. So the message has to be wordsmithed to be as simple as possible.

The other risk is that the media don’t find the message interesting or controversial—newsworthy—enough and just don’t carry it. What do you do then?

If the message via media was to intimidate, and it does not go through, then the strategy of intimidation may fail. One might then have to deliver a direct message such as a letter, and that usually does not have the ‘ballsy’ quality of a threat via media.

Negotiation 101: You can negotiate via the press or TV/radio/Web, but make sure your message is simple, unambiguous and newsworthy, whether you are trying to de-escalate or intimidate.

Mickey Mouse Makes Deal for Playmates

Mickey Mouse has bought some electronic playmates for $7.5 billion, as Disney buys Pixar. Three months earlier it would not have been possible. Why could a deal be made now?

In January 2004 Pixar broke off talks with Disney to extend their distribution deal past spring ‘06: Pixar made ‘em and Disney marketed ‘em. Why, since they had a very mutually profitable deal? Apparently Disney’s Mike Eisner grated on Pixar’s Steve Jobs. Pixar was and is of Emeryville, CA near San Francisco, while Disney is of Burbank near L.A. The principal’s personalities fit their locations.

Eisner may have grated on the Disney Board because they kicked him out and put in one Robert A. Iger as CEO in the fall of ‘05. Evidently Iger and Jobs jelled, and the deal came out of the dish. Little else changed beside who was dealing with whom.

Negotiation 101: Often whether a deal happens at all or not will depend very much on the personalities of the people dealing, while the terms of the deal will depend on things favored by accountants.

Does Secret NSA Wire-tapping Break a Deal With Congress?

I am not aiming to get into the political thicket surrounding the Program authorized by Pres. Bush. This Program, implemented by the National Security Agency (NSA) is for intercepting communications involving Americans and legal immigrants without warrants. There has already been plenty of talk about whether it is good or bad policy and there will be more.

Instead, I am concerned with the negotiation aspect of the Program. In 1978 Congress passed the Foreign Intelligence Surveillance Act or FISA. It is clear FISA was a result of a negotiation between Congress and the Executive branch. That deal was about what was workable, what objectives would be served, how the judiciary would be involved, and a host of other details. It was certainly not Congress making rules in a vacuum.

So we come forward from 1978 to the horrific events of 9/11/2001. From what we know, soon after that the President, Justice Department and NSA put together a plan of interceptions without applying to the special secret court for warrants. (Its operations are secret, but its existence is not) That is not the negotiated arrangement. Whether the President has authority under Article II of the Constitution to do this anyway is, again, for others to debate. So is the argument that the statute about invading Afghanistan implicitly authorized the Program.

So the Program may be fine and necessary, but it leaves questions about the negotiations leading to FISA in 1978. If an entity (here, the Executive branch) makes a deal with another entity (here, Congress), and over 20 or more years the individuals change, is the deal still in effect? Is it in effect until it is changed or one or the other tells the other it will no longer follow the deal?

Here, the President had his people brief eight members of Congress about the new Program. But those eight were barred by law (possible felony prosecution) from telling even other members of Congress that the deal was off.

Many members of Congress have expressed problems with the fact that FISA was apparently ignored (the deal was broken). I think there are more of those than have expressed concerns with alleged constitutional usurpation by the Executive Branch or general civil liberties issues. This could affect the President’s ability to negotiate with Congress the rest of his term.

Negotiation 101: What happens after the deal is made—whether people carry it out in good faith—may be more important than the terms of the deal itself.

Negotiation 101: When a deal is made between two organizations and it is intended to run a long time, people in both expect it to last after the negotiators leave.

Can We Negotiate the World's Way Out of the Iran Nuke Mess?

For many months, if you watch TV news, you have seen Iran go forward toward making nuclear weapons. There have been talks, on and off, between European powers and the US on one side and the Iranian government on the other. Europe and the US made dire threats of economic blockades and so forth. Iran then elected an even more stubborn nut case as Prime Minister.

This new guy, whose name westerners can’t pronounce or remember, claims the Holocaust never happened and preaches Israel should be pushed into the sea. Meanwhile, at home in Iran the Islamists push a repressive regime of closing newspapers, blocking western music and thought, etc. Western threats of blockades have not worked, and produced a worse situation. Can a deal still be struck?

I think so. Still, Western negotiation strategy must change. Thus far the goal has been to threaten Iran into submission, and the strategy has been threats. Forget it. Iran is Persia. It has been around thousands of years, and its people are proud of their successful history. Surrounded by Arab nations and mostly Muslim, they maintain their own language of Farsi (Persian). They are tough and they know what they want.

Instead of ever more nightmarish Western threats, none believable, the West needs to work on discovering what Iran really needs. I suspect that nuclear weapons, which will cost billions of dollars to develop or buy parts of, are not the real need. The closer they get to having nukes, the broker Iran gets, and the closer to Israel making a first nuclear strike. Bad stuff.

We found out after the Cold War that what Russia really wanted was not world conquest but to believe the West (US, et al.) no longer was planning to invade. I don’t know whether we were planning this, but they thought so and had reason to believe it.

My guess is Iranians in the street have similar fears of invasion. After all, whether for reasons you may approve or not, nearby Afghanistan and Iraq have been invaded . We need to find their real fears and fearlessly address them, without compromising our own security.

Negotiation 101: Learn the real needs of your negotiating partner, forget pounding the table, and address the needs.

If we apply this, we can defuse the Iran Nuke situation.

The Marble Deal

"I don't care if it's a '4 Panel End of Day 15/16" Onionskin.' It's still just a marble, and I won’t give you a hundred bucks for it. 75 bucks, my final offer, take it or leave it."

"Look, it’s worth every nickel, but I need the cash, so I’ll throw in this china-grade hand painted clay marble from the 1800s. In fact I’ll give you three of them, all different, for the next five minutes or forget it."

This little negotiation started off as a traditional negotiation, "position based". Many negotiations never get more sophisticated, and may end in no deal. If one party switches to a “needs-based” bargaining model, things can go forward.

That can happen by one asking the other what his or her real needs are. Almost every deal is really based on multiple dimensions—if nothing else, the terms of payment. A buyer, like this one, may need quick cash, but willing to throw in something extra "to boot." On the other hand, a buyer may need time to complete payment, and be willing to come up in price to get the time.

Negotiation 101: needs-based negotiation seeks to discover this information to smooth the way to a deal. For more, see my article at A Better Way to Negotiate .

Is It Ever Wrong To Negotiate?

A couple comes home from a party to find their million-dollar Dali painting gone from the wall. A day or so later their insurance company says it has gotten a message through “channels” that the Dali can be bought back at a reasonable price. Does the couple say they “never negotiate with burglars?” I doubt they would say that and never see Dali again.

Change the story: now it is their 5 year old, taken away from the custody of the babysitter while they were at a party. Do they “never deal with abductors?” I can't imagine parents saying that.

What if the abduction is instead an ‘abduction in place’ at, say, a bank being robbed? Is it appropriate for the police to say they “never deal with hostage takers?” Do the stakes belong to the police, so they may make that decision? Is it good policy? After all, it's an abduction, like the 5 year old.

What if there is an abduction in, say, Baghdad, of a journalist, or a worker for an NGO or a non-Iraqi civilian contractor. Should the abductee’s foreign ministry or state department say it “never deals with terrorists?” Is that always a good policy? Are they “terrorists” only because they do not have their own land? If they did, would they then be “the enemy?” Does one ever negotiate with the enemy?

I am not asking political but rather moral and practical questions. What do you think are the best answers? Negotiation 101: Think long and hard before refusing to negotiate a solution.