Negotiating in the Political Context –

A Skills Workshop for Legislative Directors October 23, 2009

 Legislative Directors negotiate every day – with their Members, with their own staff, other offices, constituency groups, and across the aisle. Many could benefit from a clear framework and practical skill set to gain meaningful results. This two hour hands-on workshop will strengthen your understanding key negotiation steps, best practice, and useful strategies to improve your outcomes. We will also explore how specific negotiation approaches could improve the working environment in which Legislative staff operate. Instructors: Merrick Hoben, Director, Consensus Building Institute --Washington DC Office; Rob Fersh, President, Convergence; Randy Brandt, Senior Fellow, Convergence

AGENDA 2:00 Welcome and workshop overview 2:10 Table Exercise: Surfacing what you know 2:30 Presentation: The Mutual Gain Negotiation Framework 3:00 Clinic: Applying key MGA techniques to LD challenges 3:30 Lessons learned Negotiating on the Hill 4A 

:00 djourn

Negotiating in the Political Context:A skills-based workshop for LDs

Instructors: Merrick Hoben, CBI;

Rob Fersh and Randy Brandt, Convergence

Capitol Hill, Washington, D.C., October 23, 2009

Who we are

• CBI – working to improving the way leaders, advocates, experts and communities manage conflict and build agreements; Boston and DC offices, global network of affiliates.

• Convergence – DC-based organization dedicated to conducting policy consensus processes on issues of national importance.

1

What makes your negotiations difficult?

No method to the madness

Other side doesn’t negotiate in ‘good faith’

Partisan and acrimonious atmospherics

Polarizing media narrowing the middle

New faces, weaker relationships

Bigger, more complex constituencies

Challenges not just across the aisle, but in the office too

Never enough time!

Workshop Objective & Agenda

Strengthening your negotiation toolbox by…

Surfacing what you already do

Presenting a practical framework for improving strategy and tactics

Applying key concepts and techniques to your most difficult challenges

Sharing lessons learned

2

Suggested Groundrules

• Build on your experience, don’t replace it

• Stick to key ideas, not details

• Don’t make it personal

• Speak freely (it won’t leave the room)

Other?

Typical negotiation scenario

What’s your best advice?

3

Negotiation: a Definition

The process by which…

• two or more parties

• with conflicting and compatible goals

• seek to reach agreement

• on a decision or transaction.

Conventional ‘Wisdom’ About Negotiation

• Tactics:

– Haggle for gains based on exaggerated starting points– Don’t tell them what you really want or need – Wear a mask; show no empathy – Seek to undermine the legitimacy of their claims– Use dirty tricks to gain psychological advantages

• Assumptions:– Their gain is my loss– Negotiation is a test of will– Giving them information will put you at a disadvantage– The toughest, sneakiest person wins

4

Problems with This Approach

• Erodes trust:

– You make yourself a liar from the beginning; what you say you need isn’t what you actually need

• Prevents information exchange that could lead to more valuable outcomes

• Risks unnecessary impasses

• Jeopardizes stability of agreements over time

• Harms relationships!

5

Sad But True: 30+ years of Research1. Negotiators tend to assume a “fixed pie” even when there is

value to create…– By assuming a single issue when there are many– By assuming that interests are in direct conflict

… and then behave in ways that elicit value-claiming behaviors from their counterparts

2. Egocentrism: Not enough time spent imagining counterparts’ alternatives, interests, criteria, stakeholders

3. Fundamental Attribution Error: Misplaced emphasis on the power of personality and attitude– It matters much less than aspiration levels, alternatives, problem-

solving capability, and how the situation is construed

4. Misplaced faith in power and rationality– People will actually reject “superior” deals that violate their

fundamental sense of fairness

Introducing Mutual Gains Agreement Building

• The big idea: You can often achieve more of what you want by helping other parties address their underlying concerns.

• Maintaining or enhancing relationships during a negotiation increases the chances of successful implementation

• This requires a structured approach to negotiations

6

The Mutual Gains Approach(the foundation of agreement building)

The Mutual Gains Negotiation Framework

– PreparationImportance of Effective Preparation

– Value CreationCreate Value First to Expand the Pie

– Value DistributionDetermining who gets what in ways that are

perceived as fair- Follow-Through

Think about implementation challenges in advance to create Sustainable Agreements

7

MGA Key Concepts in the political context

• Working to get beyond positions

• Knowing your power to influence, and theirs

• Mapping the full range stakeholders upfront

• Jointly generating options with shared value, before locking in

• Predicting upfront what might go wrong

MGA Key Questions

– Why? (and why not?)Uncovering Interests: Why is that important to you?Understanding your power to influence, and theirs.

– What If…?Creating Value: Inventing without Committing

– What Makes That Fair?Distributing Value: The Power of a Rationale

– What Might Go Wrong?Implementation: Anticipating Predictable Surprises

8

Asking ‘Why?’-- to get beyond just positions…• Position = what they want

• Interests = WHY they want it

• How to discover interests? Ask!

– “What issues concern you most?”

– “Why are they important to you?”

– “What else would you like to see addressed?”

– “Would we be moving in the right direction if...?”

Your Key Negotiation Prep QuestionsWhat’s the end-state we’re

aiming for - and theirs?

What are our interests - and theirs?

What are our alternatives –and theirs?

What options could be great for us - and good for them?

What obstacles may we encounter, and ways to deal with them?

9

Asking “why not” (come to the table) – to estimate your power of influence, and theirs

• Key question: what are stakeholders likely to get if they can’t negotiate agreement at the table? (Best Alternative to a Negotiated Agreement or ‘BATNA’)

• BATNA = source of negotiation power

• Key idea: estimating your best alternatives, and theirs, helps you to understand the viable negotiation space (or zone of possible agreement). Without considering this, you run the risk of giving up value, or leaving it on the table (i.e. ‘buyers regret’)

Best Alternative to a Negotiated Agreement (BATNA)

10

Negotiation Power is not just about alternatives

• Negotiation Power comes from:– The power of a good alternative– The power to affect their outcomes

AND– The power of knowledge– The power of persuasive skill– The power of compelling criteria– The power of a good relationship– The power of an elegant solution– The power of a good analytical theory of negotiation

How to gauge your negotiation power, and theirs?– Ask yourself (and your team): “What’s likely to

happen if no agreement is reached?”

– Estimate / Test the other side’s alternatives. How viable are they? I.e. is the time, cost, and effort away from the table really worth it to them?

– Remember, the more stakeholders can get of what’s important to them away from the table, the less likely they are to negotiate!

11

Asking “What if?” – to create value before rushing to claim it

• Creating value means inventing solutions that are advantageous to both sides so as to expand the scope of mutually beneficial options available to the negotiating parties.

• A.K.A. “Enlarging the Pie”

You can create value by…

• Exploring– Explore interests on both sides– Ask ‘Why…?’– Understand priorities and differences

• Inventing– Suspend criticism– Invent without committing– Generate options that “make the pie bigger”– Play “What if…?”

• Packaging and Trading– Find and exploit differences - Trade across priorities– Make packages that give you more of what’s most important to you.

• Improving Communication (and relationships)– Choosing the right coalitions, and messengers

12

The Tension of Making Trade-offs

A

B

C

D

E

Gains to Party B

Gains toParty A

A’s BATNA

B’s BATNA

The Tension between Creating and Claiming Value

F

G

What it sounds like…

• “What are the key things you need from an agreement?”

• “Why is that important to you / a problem for you?”

– (Listen for interests, principles and assumptions)

• “What else is important to you?”

• “Would you prefer [X] or [Y]?”

• “Could you live equally with [option X] and [option Y]?”

• “You’ve mentioned [X] and [Y] and [Z] as things that matter to

you… among these, which is most important?”

• “Would we be moving in the right direction if…?”

13

What makes it hard…but worth it.

• People value losses greater than gains

• Players anchor too early & often on the wrong things

• Reactive devaluation reduces the perceived value of offers

• Claiming value tends to swamp creating value

Case example –

U.S. Army Stryker teams asking ‘what if’:

• How could a security presence in your market place help you? (core interests)

• What if a town elder had oversight of checkpoint x? How would that be helpful, or not? (autonomy, control)

• Where would you like check pts established to best secure your town? (influence)

• Do you prefer if those pts are managed by American forces or local?

14

Asking “what makes that fair” -- to claim value constructively

• Build Trust

– Behave in ways that build trust, enhance credibility

• Objective Criteria

– Discuss standards or criteria for dividing the pie (cost, time, expertise)

– Think about what criteria will be most persuasive

• Contingent Agreements (if x, then y)

– Don’t Argue about the future: Bet on it.

– Mitigate Risk

• Third parties

– If helpful, use mutually credible actors to discuss possible criteria and

distributions

“What might go wrong?”: the key follow through question…• What are the predictable surprises? (e.g. the “hold”)

• How can you plan for them?

• What organizational incentives can you put in place?

• What useful contingent agreements can you think of?

• What’s your plan for addressing outstanding concerns, disputes?

15

4. Follow Through

• Make Compliance Attractive– Develop incentives and ‘nearly self-enforcing agreements’

• Monitor– Agree on monitoring arrangements– Involve relevant parties; Allocate necessary resources

• Anticipate– Identify and address “predictable surprises”– Align organizational incentives and controls

• Communication– Keep working to improve relationships– Agree to use third party to resolve disagreements

Is negotiation appropriate?

The check list…o Is the issue or problem well defined? (clear scope)o Do I know my interests? Have I considered theirs?o What are my options ‘away’ from table? And theirs? (BATNAs)o Are a quorum of representatives identifiable and represented,

and committed?o Are there any unreasonable constraints on the decision

(technical, financial, legal or political)?o Is there sufficient time?

Don’t assume negotiation will be helpful or necessary in every situation!

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If Yes…

• Goals: Clarify objectives (what’s the end state your looking for?)• Scope: Specify issues to be discussed (or not)• Convener: Who can legitimately and effectively bring the parties

together• Representation:

• Determine who should participate • Determine how representatives are selected

• Information: Identify information needs and processes

• Decision-making: Link to formal or informal decision-making

• Process resources: jointly credible technical help, neutral facilitation?

Inadequate negotiation design can sink the best of intentions!

LD challenges

• The other side won’t play ‘fair’

• No time to prepare!

• An ever widening circle of stakeholders

• We don’t have enough /credible information

17

Mapping stakeholders viewpoints

Positions Interests Options Alternatives/ Incentives

SH 1

SH 2

SH 3

Reaching beyond the first circle of “stakeholders” (and knowing what’s enough)

• Stakeholder defined:

Any person or an organization that:

– Has an interest or concern in the conflict, situation, or issue

– May be needed to implement any outcome or solution

– May try to undermine the process if not meaningfully involved

18

Managing Coalitions

• Who are your friends and why?– Natural coalitions:

common history, common identities, common values, common interests, or common enemies

– Winning coalitions

– Blocking coalitions

• Watch your back (and your future)

• Strategically sequence parties as well as issues

• The Principles-Agent Problem Grows

Negotiations as learning opportunities

Strategy

Negotiation

Negotiation

Negotiation

19

Stories from the trenches, and lessons

Building agreement on…

Heath care for the uninsured

US Muslim Engagement

20

 

 

VALUE CREATION CHECKLIST  

What issues do we value differently?  

What difference in resources or capabilities might we leverage?  

Does one of us have a higher tolerance for risk (on a particular issue)? 

Do we have different preferences or priorities around timing? 

What other things might they value that we could provide at relatively low cost?  

If we disagree about future scenarios, or don’t yet have all the data, what contingent agreements (“if _____ then _____”) might we propose?  

What issues are likely to produce positional bargaining, and how can we unbundle them into multiple issues (e.g., pricing becomes total price, timing, currency, etc)  

What other issues could we link to this deal? How might we broaden or narrow the deal to increase chances for mutual gain?  

 What options are we prepared to propose?      What are at least two packages (bundles of options) we can propose that will elp us to avoid “anchoring” and “issue­by­issue” dynamics?  h     How will success be measured on our side?  Do we need to address expectations or align incentives in order to achieve our most important goals?  

  FORMS VALUE CAN TAKE  

Cost Reduction Reputation Future cost / profits / savings Quality Risk management Improved relationships (more information, better problem solving) Other: ______________ IN­NE  GOTIATION BEHAVIOR CHECKLIST  

o Am I listening? [70% of the time at outset]  

o Have I probed for interests by asking why? What am I learning about their interests?  

o Have I explained why I need the things I need?  

o Are we spending time early in the negotiations on inventing without commitment?  

 

IMPLEMENTATION CHECKLIST  

What deadlines or milestones for reconsidering or reconfirming our commitments will we build into the agreement?  

How will our incentives and capacities need to change in order to implement this agreement well? How will each of us demonstrate that we’re changing?  

What relationship building commitments can we make to build trust and make it easier to deal with “surprises”?  

What dispute resolution mechanisms will we rely on if problems emerge during implementation? Who will activate these?  

Evaluating Your Negotiation Strategy and Outcomes Key changes to existing agreements (if applicable): How you did, relative to your best alternative (explain): Moves made that exploited differences: Arguments/moves made to successfully claim value: Terms to manage ‘predictable surprises’ (“what could go wrong?”): What you learned about your side: What you learned about their side: Process and relationship comments:

© 2009 The Consensus Building Institute

238 Main Street, Suite 400 • Cambridge, MA 02142 • Tel 617.492.1414 • Fax 617.492.1919 • www.cbuilding.org

THE MUTUAL GAINS APPROACH to negotiation (MGA) is a process model, based on experimental findings and hundreds of real-world cases, that lays out four steps for negotiating better outcomes while protecting relation-ships and reputation. A central tenet of the model, and the robust theory that underlies it, is that a vast majority of negotiations in the real world involve parties who have more than one goal or concern in mind and more than one issue that can be addressed in the agreement they reach. !e model allows parties to improve their chances of creating an agreement superior to existing alternatives.

MGA is not the same as “Win-Win” (the idea that all parties must, or will, feel delighted at the end of the ne-gotiation) and does not focus on “being nice” or “finding common ground.” Rather, it emphasizes careful analy-sis and good process management. !e four steps in the model are:

PreparationPrepare by understanding interests and alternatives.

More specifically, estimate your BATNA and how other parties see theirs (BATNA stands for “Best Alternative to a Negotiated Agreement”). Having a good alternative to agreement increases your power at the table. At the same time, work to understand your own side’s interests as well as the interests of the other parties. Interests are the kinds of things that a person or organization cares about, in ranked order.

Good negotiators listen for the interests behind posi-tions or the demands that are made. For instance, “I won’t pay more than ninety thousand” is a position; the inter-ests behind the position might include limiting the size of the down payment; a fear that the product or service might prove unreliable; and assumptions about the inter-est rates attached to future payments. !e party might also be failing to articulate other non-financial interests that are nonetheless important.

Value CreationCreate value by inventing without committing. Based

on the interests uncovered or shared, parties should de-clare a period of “inventing without committing” dur-ing which they advance options by asking “what if…?” By floating di"erent options and “packages”—bundles of options across issues—parties can discover additional in-

terests, create options that had not previously been imag-ined, and generate opportunities for joint gain by trading across issues they value di"erently. Value Distribution

At some point in a negotiation, parties have to decide on a final agreement. !e more value they have created, the easier this will be, but research suggests that parties default very easily into positional bargaining when they try to finalize details of agreements. Parties should divide value by finding objective criteria that all parties can use to justify their “fair share” of the value created.

By identifying criteria or principles that support or guide di#cult allocation decisions, parties at the nego-tiating table can help the groups or organizations they represent to understand why the final package is not only supportable, but fundamentally “fair.” !is improves the stability of agreements, increases the chances of e"ective implementation, and protects relationships. Follow Through

Follow through by imagining future challenges and their solutions. Parties near the end of di#cult negotia-tions—or those who will “hand o"” the agreement to oth-ers for implementation—often forget to strengthen the agreement by imagining the kinds of things that could derail it or produce future conflicts or uncertainty.

While it is di#cult to focus on potential future chal-lenges, it is wise to include specific provisions in the final document that focus on monitoring the status of com-mitments; communicating regularly; resolving conflicts or confusions that arise; aligning incentives and resources with the commitments required; and helping other par-ties who may become a de facto part of implementing the agreement. Including these provisions makes the agree-ment more robust and greatly assists the parties who will have to live with it and by it.

!e Consensus Building Institute is a not-for-profit organi-zation created by leading practitioners and theory builders in the fields of negotiation and dispute resolution. CBI works with leaders, advocates, experts, and communities to promote e"ective negotiations, build consensus, and resolve conflicts.

Copyright © 2007 Consensus Building Institute

The Mutual Gains Approach to Negotiation

© 2009 The Consensus Building Institute

READINGS ON NEGOTIATION, BARGAINING AND CONSENSUS BUILDING

Axelrod, Robert. (1984). The Evolution of Cooperation. New York. Basic Books. Fisher, R. (1993). “Negotiating Power: Getting and Using Influence.” American Behavioral

Scientist, 27(2), pp. 149-166.

Fisher, R. and Shapiro, D. (2006). Beyond reason: using emotions as you negotiate. Viking Adult

Fisher, R., W. Ury, and B. Patton. (1991). Getting to Yes. New York, NY: Penguin Books.

Lax, D. and J. Sebenius (2006). 3D Negotiation. Cambridge, MA: Harvard Business Press

Malhotra, D. and Bazerman, M. (2007). Negotiation Genius. New York: Bantam. McKearnan, S. and D. Fairman (1999). “Chapter 8, Producing Consensus.” In Susskind, L.; S.

McKearnan, & J. Thomas-Larmer, eds. (1999). The Consensus Building Handbook. Thousand Oaks, CA: Sage Publications.

Mnookin, R. and L. Susskind, eds. (1999). Negotiating on Behalf of Others: Advice to Lawyers,

Business Executives, Sports Agents, Diplomats, Politicians, and Everybody Else. Thousand Oaks, CA: Sage Publications.

Movius, H., Matsuura, M., Yan, J., and Kim, D-Y. “Tailoring the Mutual Gains Approach to

Negotiation for Use with Partners in Japan, China and Korea.” Negotiation Journal, Oct 2006

Movius, H. and Susskind, L.E. (2009) Built to Win: Creating a World Class Negotiating

Organization. Cambridge, MA: Harvard Business Press.

Potapchuk, W. & J. Crocker (1999). “Chapter 14, Implementing Consensus-Based Agreements.” In Susskind, L.; S. McKearnan, & J. Thomas-Larmer, eds, (1999). The Consensus Building Handbook. Thousand Oaks, CA: Sage Publications.

Sebenius, J. (2001). “Six Habits of Merely Effective Negotiators. Harvard Business Review.

Susskind, L. and P. Field (1996). Dealing with An Angry Public: The Mutual Gains Approach to

Resolving Disputes. San Francisco, CA: Jossey-Bass.

Thompson, L. (1998). The heart and mind of the negotiator. NJ: Prentice-Hall, Inc. Ury, W. (1993). Getting Past No: Negotiating Your Way from Confrontation to Cooperation.

New York: Bantam Books.

Negotiating on Capitol Hill – Lessons from the Trenches1 • Passion and principles do not preclude agreements • Positions are not interests • Be creative to expand the pie and create value • Have integrity (your reputation matters- it’s a small world after all) • Map out a strategy • Assess points of leverage • Prioritize • Timing is almost everything • Do your homework (or have someone do it ☺) • Media matters (have a media and coalitions strategy upfront which can be

adjusted as needed) • Consensus is not a dirty word- it’s how most bills pass the Senate ☺ • Know your objective and your bottom line • Silence (or quorum calls) can be golden ☺ • Consider who can best deliver the message or make the ask • Make them an advocate for your interests by showing them how it is in their

interest • Building trust is mutually beneficial • Know who the real stakeholders are • Teach and empower others and you can get more accomplished • Use your boss’ time wisely • Learn how much information he or she wants • Be a mentor and look for mentors • Find partners who are invested in your issue: serious over seniority • Don’t promise what you can’t deliver • Screwing people is a one shot deal • Success doesn’t always require a signing ceremony • Follow-up- make sure the new law is implemented properly • Don’t trust one- sided information • Be persistent • Respect the House ☺ • If in the minority, be thankful you are in the Senate ☺ • Treat people as if they were human beings and you will be more effective • Politics is downstream from culture and consensus

1 Randall J. Brandt was a Senate leadership staffer serving as Deputy Staff Director and Counsel for the U.S. Senate Republican Conference in 2005 and 2006.   From 1999 to 2005, he served as counsel for Sen. Rick Santorum, and earlier worked in the U.S. House of Representatives for Rep. Phil English and Rep. Mark Souder from 1996 to 1999.  He is currently a Senior Fellow with Convergence, a DC‐based non‐profit that organizes and conducts policy consensus processes on issues of national importance.

NEGOTIATIONS PREPARATION CHECKLIST  

1. goWho am I representing in this ne

tiation?  

2. How will we prepare together?  

ion?  3. What are our interests (in order of importance) in the upcoming negotiat

4. What are the interests of the individuals/groups we’re negotiating with? 

5. What’s our best alternative (where we would stand) if the deal falls through? 

6. How should we value our best alternative in view of the costs and benefits, short‐and long‐term?  

7. How can we improve our alternative(s)?  

8. What’s their best alternative? How could we raise doubts about it?  

9. What information should I try to get early in the discussion? From whom?   0. What proposals can I make that meet their interests well and my interests very 1

well?   11. What criteria can I use to persuade them that these proposals are fair?   12.  What implementation problems are likely to arise if they accept my proposal and 

how might these be overcome?