Producers and Networks Worked From Faulty Script

The Fall 2007 strike by the Writers Guild against producers and the TV networks illustrates exactly the wrong way to bargain if you want a deal. I am not privy to the bargaining tables, so I can’t assign blame for certain. But I know the management side expressed some faulty reasoning in their public statements.

Experts say there are four basic principles for successful negotiation at all levels. One is to leave all the personal stuff at the door. Instead, this seems to be a contest to show who has a bigger something. Score: 0-0. Second basic: both sides should be focused on inventing possible solutions rather than repeating their opening positions as mantras. I don’t know how detailed the Guild ideas were about dealing with electronic media—which are the crux of the dispute. But Management initially refused to even mention these media in any deal. Score: Writers 1 – Management 0.

Another principle is to express clearly and candidly to the other side what you see your interests and needs for the final outcome to be. Because I am not privy to the bargaining I cannot score this. The Writers were pretty candid publicly, not as far as I know the Management side.

Let me expand on this a moment. The root purpose of any contract is to allocate risk. More precisely, it is to lay out a bunch of what-ifs (conditional events) and say what each side must do or receive in each case. Example: ‘If Harry Homebuyer comes up with the finance to buy 123 Main St. by such and such date then Oscar Owner must deliver to him good title and vacate promptly, else Oscar keeps Harry’s deposit.’ It is almost like programming, in a computer sense, a relationship between people or entities. The focus is on conditionalal or uncertain events. Sometimes the ‘program’ is a ‘regardless.’ For example, ‘Regardless whether corn prices go up or down between now and ninety days from now, A must deliver to B on that date 1000 bushels at a dollar a bushel.’ (B risks the price might go down, and A that it might go up.)

Everyone agrees it is uncertain even months later what will end up the success or shape of the economics of electronic media. This is exactly when you start building what-ifs, dividing the risks so each side has some risks and some possibilities of reward. The Writers seemed ready to do this, but Management initially said they would not bargain in this area at all as long as there is uncertainty.

This seemed more a cheap excuse or cover for using cash in bank to wait out the writers and break their Guild than anything else. The producers were stalking horses for huge corporations. Those three really big dogs could live off their various enterprises and cash probably much longer than can the writers off their personal savings.

What the big dogs do not have is public support, both in terms of American support for underdogs, and American demand for new comedy and drama. The underdog support touches another basic principle of negotiation, that almost everyone likes to be seen as a fair-dealer, although self-evaluation in this area varies.

So what we saw mostly was not negotiation but a kind of cold war. It is likely to continue. Will there be winners? The Canadians have developed a facility for producing TV and artsy movies. The big dogs cranked movies into cans in anticipation, and were slowly letting them out of cans. They could eventually start buying TV ‘product’ from Canada. Non-US movie studios might increasingly make product for movie theatres, although probably not the large-scale movies only Hollywood can mount. One could also expect sports to become bigger on TV, and for 2008 presidential politics, another sport, a really big one as it turned out. Senator George J. Mitchell, who settled the conflict in Northern Ireland, famously said “Conflicts are created and sustained by human beings. They can be ended by human beings."