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.