Top Negotiations Stories of 2011

2011 was a year of deals made, deals broken, and new theories about human decision-making that provide lessons for all negotiators as they strategize to reach their goals:

-"The Human Swap: How a single Israeli came to be worth 1,027 Palestinians," Reporter Ronen Bergman provided a riveting account of how Israel's historical policy of refusing to negotiate with terrorists was overcome by a confluence of unusual factors leading to the negotiated release of Israel IDF soldier Gilad Shalit who had been held by Hamas since 2006: (1) Gilad's parents mounted an unprecedented public relations campaign, galvanizing the nation to keep Gilad in the national consciousness; (2) that all Israeli children must serve in the military carries with it a national commitment, some say based in the Hebrew bible, "to return hostages or their bodies, and this exceeds all the limits or reason;" (3) with various entities serving as mediators, Gershon Baskin, a Jewish peace activist, capitalized on a relationship he made with a professor from an Islamic university whom he met at an academic conference -- both unlikely intermediaries, with no political stake, who were able to introduce alternative negotiators from both sides; (4) eschewing e-mail or other technological modes of communication, messages were passed in hard-copy from one side to the other; (5) the Arab Spring influenced Hamas to change positions and convinced Israel to release an unprecedented number of Palestinian prisoners.

- "Negotiator in the N.B.A. Talks Has the Respect of Many" NYT Labor Reporter Steven Greenhouse described George H. Cohen as "the federal mediator who is seeking to coax, cajole and occasionally strong-arm the National Basketball Association and its players into ending" their showdown with the Players' Association. But despite his credibility and understanding both sides, Cohen was not able to bring the players to a deal until there was a change in negotiations spokespersons and a change of venue for the negotiations. That, and the specter of no basketball season, led to a last-minute bargain. According to the Hollywood Reporter, Hollywood Reporter, "The sides met just twice in the first two months of the lockout before stepping up the pace in September, when it was already too late to open camps on time. The sides tried meeting in small groups, large groups and even mediation, but nothing sparked compromise. Things changed this week with the entrance of Jim Quinn, a former NBPA counsel who had good relationships on both sides. The meeting Friday was held at the office of his law firm, though he did not take part."

- "Alliance Formed Secretly To Win Deal for Campus," NYT Reporter Richard Perez-Pena details the ability of the Presidents of Cornell University, David Skorton and Peretz Lavie of Technion University in Israel to form a personal relationship based on shared hobbies and interests, resulting in a unique alliance in negotiating a deal with the City of New York to build a new joint-graduate school of technology on Roosevelt Island. In addition to the personal relationship, dubbed an "unsuspected marriage," Cornell generated thousands of alumni signatures demonstrating wide support for the project and solicited a huge alumni financial contribution of $350 million that far exceeded any other bid causing the strongest competitor, Stanford University, to drop out of the deal.

- "The Surety of Fools," is a must-read summary by Nobel Prize-Winner Daniel Kahneman, who with his academic partner, Amos Tversky, put behavioral economics in the mainstream of science exploring how humans make decisions. Kahneman's new book, "Thinking Fast and Slow," raises significant questions about human's ability to predict future performance and theorizes that humans are overly confident about their ability to make good decisions. Kahneman calls this "illusion of validity" because most humans make decisions that are unrelated to statistical truth.

- For women negotiators, here are some must-see and must-read options: Facebook COO Sheryl Sandberg's presentation for TedTalks (12/13/11) discusses 3 tips for women juggling career and family: 1. Sit at the table, 2. Make your partner a real partner, and 3. Don't leave before you leave. You'll just have to watch the video to get the full picture! Two women who seem to have learned these negotiating lessons are Gloria Allred who decided to built a legal career representing victims of sexual harassment and gender discrimination after she was raped at gunpoint while vacationing in Mexico ("Lawyer to the Brokenhearted," NYT Talk, 12/11/11) and Mika Brzezinski, MSNBC talk show co-host, whose 2011 book, "Knowing Your Value: Women, Money and Getting What You're Worth," helps women understand how to create and claim value to negotiate better employment contract terms.

Negotiations: impediments faced by the “not-so-special” Congressional deficit-cutting committee precluded a deal

News that the Congressional special deficit cutting committee concluded negotiations without coming to a compromise was not unexpected, but still disappointing. Negotiations experts can spot the symptoms of a failed negotiation.

First, they failed to have the right people at the negotiating table. Apparently, the members of the Committee, including co-chairs Senators Patty Murray and Jeb Hensarling, did not know each other that well. Few had the long-time relationship of negotiators like former Senators Ted Kennedy and Trent Lott, who though ideologically opposed, were able to cut deals due to the high degree of trust they had built up over the years by sharing social occasions as well as conducting Senate business together. Further, leaders from both parties (including President Obama) were either unable or unwilling to exert pressure to move the process to an agreement.

Second, they did not make the best use of allotted time, thereby bumping up against the deadline. The Committee wasted several weeks during which they failed to meet and got off to a slow start. When the job became more complicated than originally thought, the lack of time made the negotiations seem futile. If resolution seems unrealistic, negotiators pull back and are less likely to commit the time necessary to go back and persevere.

Third, the BATNAs were more attractive than committing to positions. The knowledge that automatic spending cuts were already in place may have deterred the negotiators from coming up with a new comprehensive agreement. Failing to agree also gave both political parties the alternative of entering the election cycle uncommitted to a particular deal. As the Wall Street Journal reported, in view of these alternatives to a negotiated agreement: “the fear of failure seemed to dim.”

As a result, no deal.

Decade ending promises big changes for workplace in the future

The decade ending 12/31/2009 gave birth to totally changed workplaces along with signs that the future workplace will continue to evolve. The "army of the unemployed" referenced by business tycoons in the 1920s led to vast legislative changes in the 1930s and 1940s: rights for unionized workers, social security, fair labor standards. The 50s and 60s saw the spread of equal employment opportunity legislation on racial and gender bases, followed by rights for older workers, disabled employees, and family leave. The 80s and 90s yielded piecemeal state and local non-discrimination legislation aimed at protecting gays, sexual orientation, transgendered, victims of domestic violence, and nursing mothers. The recession of 2008-2009 leaves high rates of unemployment among all sectors of society but unprecedented lack of private sector job growth, disproportionately high unemployment among black males and Hispanics, and the new "flexible" worker who seeks part-time, contingent, project work or work-from-home. At the same time, the EEOC and state and federal courts are facing unprecedented spikes in new case filings, which will lead to delays, longer time to trial or disposition, uncertainty and disappointment. These conditions should lead individuals and corporations to seek alternative dispute resolution processes to resolve workplace disputes in less expensive and more expeditious forums.

The Beer Summit: Will the 'teachable moment' be more than momentary?

The dispute resolution community is delighted that Obama, the Mediator in Chief, employed a common dispute resolution tool when he hosted Professor Gates and Officer Crowley to a beer in the garden. Changing the venue, taking the disputants to the balcony, discussing problems over a meal, making a toast --this approach to peace-making is as old as the hills, as the saying goes. Calling this attempt at dialogue, a 'teachable moment,' is a good, neutral method of turning the page and getting the disputants and the audience to move forward. Whether this 'teachable moment' becomes a sustainable opportunity for better race relations and inter-group and interpersonal cooperation depends on individuals and the media. In my town, a suburb just 30 minutes from New York City, known for its quick commute and high-income earners, I am struck by the responses to a survey conducted by Todd Sliss of The Scarsdale Inquirer newspaper: Sliss asked passers-by in the village, "What can we learn from the incident between the Harvard professor and the police officer in Cambridge?" each of the six interviewees stressed the importance of 'letting cooler heads prevail,' 'look for positives in one another' rather than differences, 'people should take a step back for a second and think,' etc. In this world of instant messaging and the 24-7 news cycle, if each of us can pause even slightly, choose our words more carefully, and consider the perspective of the other, we will have benefited from a 'teachable moment' and move into 'wiser century.'

Older employee with loud clothing makes age discrimination history but his case still goes on

The United States Supreme Court issued another 5-4 decision in an employment discrimination case today, Gross v. FBL Financial Services, Inc. (June 18, 2009). In the majority opinion, Justice Clarence Thomas ruled that a plaintiff in an age discrimination case must prove by direct evidence "that age was the 'but for' cause of the challenged adverse employment action." In the two dissenting opinions, one by Justice Stevens and one by Justice Breyer, the minority of justices opined that earlier Supreme Court precedent required the employee aggrieved by an employment decision to present a preponderance of evidence that age was a factor or played some role in the challenged employment decision, for the burden of proof to shift to the employer to show it would have made the same decision even without considering the employee's age. So a demoted older worker who also wore loud clothes gets his federal case considered (but not finally decided) by the Supreme Court, leaving a fractured decision, more litigation, more time and effort by more lawyers, courts, and citizens -- all of whom will continue to wonder whether Gross really was a victim of age discrimination. Since answers to these questions are so complex in the first place, and so difficult to determine at the end of the day, one can only suggest that a better way to resolve the issues surrounding difficult employment decisions would be in a mature, civilized discussion, also known as . . . mediation.

Ken Feinberg, not a Czar, but a Mediator

Kenneth R. Feinberg, recently named by the Obama administration as Special Master of Executive Compensation of corporations receiving TARP money, is being called the "Pay Czar." But as the New York Times reports today, "If there is one thing Kenneth R. Feinberg does not like to be called, it is a czar." In the dispute resolution community, Feinberg is known for being a master mediator -- one who helps disputants resolve conflict voluntarily -- by using persistence, patience, and subject matter knowledge to resolve complex problems without litigation. For insights into Feinberg's mediation style, read his book about presiding over the September 11 Victim's Compensation Fund, "What is Life Worth?: The Inside Story of the 9/11 Victims Compensation Fund" (2006)[http://www.amazon.com/s/ref=nb_ss_gw?url=search-alias%3Dstripbooks&field-keywords=What+is+Life+Worth%3F&x=8&y=14]. Feinberg uses empathy (apparently a dirty word in some legal circles) and doggedness to help people sort out the complex emotional and economic issues attendant to some of the most difficult personal and business problems they face. Know any Czars famous for that?

Obama, the Mediator, In the Mid-East

President Obama's remarks in Cairo reflect his consensus-building orientation to resolving deeply divisive world problems. Mediators are trained to reframe conflicting opinions and reorient disputants toward the future and away from the contentious past. Mr. Obama stated: "So whatever we think of the past, we must not be prisoners of it. Our problems must be dealt with through partnership; progress must be shared." The Obama administration also understands the importance of preparing the parties for negotiations in advance of the negotiating table: before finalizing his Cairo remarks he tested the waters with pro-Israeli advocates in the United States and with other constituent groups whose support will be needed to bridge differences; following his remarks and visit abroad, he will dispatch Special Envoy George Mitchell to the Middle East, who is already highly-regarded for his skills as an honest broker. All those interested in alternative dispute resolution should examine President Obama's words, demeanor and conduct for mediation role-modeling.