As Negotiator-in-Chief, Obama needs to better Manage his Batna


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I am delighted to post  this  guest post  courtesy of Brian Pappas:

The summer of 2012 was an interesting one for our negotiator-in-chief.  On July 13th, a Politico article (“President Obama abruptly walks out of debt ceiling talks “) describes a president willing to use both integrative (collaborative) and distributive (competitive) negotiation tactics.  On the distributive side, an official at the meeting describes Obama giving Majority Leader Eric Cantor an earful:  “Obama lit him up. Cantor sat in stunned silence.” Before walking out the president also reportedly stated, “Eric, don’t call my bluff,” warning him that he would take his case to the American people.  Cantor has accused the president of low-balling the savings that could be achieved from deficit reduction proposals.  Using a more collaborative approach, Obama reportedly wants everyone to “start to think about things we can do rather than things we can’t.”

Apparently Obama took that last piece of advice to heart.  On July 31st, NY Times columnist Paul Krugman declared (“The President Surrenders”) the deal an abject surrender on the part of the president.  Citing both the debt deal and the extension of the Bush tax cuts, Krugman believes Republicans will be emboldened by the way Obama keeps folding in the face of their threats.  

So which is it?  Is Obama the hardscrabble negotiator walking out of meetings or the surrenderer-in-chief?  Of course all negotiations involve both competitive and collaborative aspects requiring that at some times we claim value and at others we create it.  These may simply be battles within a much larger war, but if we believe what we read Obama capitulates too easily, lacks clear negotiation objectives, or as Emory University Psychology Professor Drew Westen argues (What Happened to Obama?”  NY Times 8/6/11) the president simply fails to effectively manage his BATNA (Best Alternative to a Negotiated Agreement). 

That’s not exactly Westen’s argument.  Westen argues that the President fails to provide the stories that would galvanize political support and create a compelling alternative to the dominant narrative of the right.  Specifically, Westen wants Obama to label the villains responsible for our country’s problems.  He cites both Teddy Roosevelt and FDR as examples of presidents who utilized strong narratives to counterbalance times of great inequity and concentrations of wealth. Why is Obama unable to do this?  Westen blames Obama’s aversion to conflict and lack of temperament for tolerating the hatred that would come from making forceful stands.  But what if the president is able to develop strong narratives labeling the bad guys, but chooses not to?  If Obama is more comfortable choosing the message of bipartisanship over the message of confrontation, is that such a bad thing? 

Lost in the question is another:  Do effective narratives need to label an enemy?  Westen sees the villain as a key aspect to framing messages in ways that galvanize political support for policy changes.  From a negotiation standpoint, he sees distributive (competitive) language as important to help the president improve his BATNA, and weaken his opponent’s BATNA.  Clearly, if you know your opponent has a stronger alternative, it will lower your asking point and make you more likely to settle.   The reverse is also true when you have a stronger alternative.  When both bargainers know of one side’s strong BATNA, that person tends to achieve a more favorable outcome.  In any public policy negotiation, the existence of constituencies and audiences has a profound effect on the negotiation process.  In politics, public opinion plays an essential role in determining the BATNA and so it is important that each side attempts to manage public opinion when negotiating.  

In the debt ceiling debate the worse case alternative for both sides was a potentially catastrophic blow to our already trembling economic recovery and serious political consequences in the 2012 election.  The best alternative for both sides was likely the public blaming the fallout on the other side and voting accordingly.  Obama waited until the spring to push the debt ceiling question onto the agenda, assuming there would be continued bi-partisan support.  With time in their favor, the Republicans anchored strongly on the issue and on some level convinced the president that they were willing to go down with the ship.  Perhaps he believed that the political fallout from no deal would favor his opponents?  Or maybe Obama weighed the options and saw an increase in the debt ceiling as more valuable than maintaining his stance on “revenue enhancements” (a clever reframe describing increasing taxes on the wealthy).  Perhaps he chose collaboration over confrontation for the good of the country. 

One of the key themes from Robert Penn Warren’s All the King’s Meninvolved the ethical question of how much hardball versus dirtyball should our politicians play in order to enact positive change (and where is the line between the two?).  Many American liberals are wondering when does Obama’s softball end and his hardball begin?  Whether labeling the villain is hardball or dirtyball, Obama is uncomfortable with public displays of confrontation.  That is not necessarily a bad thing.  An aide who witnessed the Obama walk out noted, “It was incredible.  If the public saw Obama he would win in a landslide.” If passion alone won elections, yes Obama could stand to show more passion.  But there is a fine line between passion and divisiveness.  I agree with Westen that compelling narratives are essential, but I question whether or not it would be good for our country to label the villain.  We already see so many negative ads during campaign season.  To bring the same into policy negotiations could be detrimental to the public debate.  Many would argue this already occurs.

There can be clear benefits to compromise. Over time perhaps the Republicans will see Obama’s willingness to compromise and join him in the center.  Maybe moderates will value this “high road” tactic and appreciate (or even demand) that the parties work together for the country’s benefit.  It is possible that Obama ascribes to Gandhi’s advice to “Be the change you want to see in the world.”  If his goal is bi-partisanship, then he feels he must act in a bi-partisan manner.   This reminds me of the “divide a dollar” negotiation exercise in which two students will receive a dollar if they can agree on how the dollar is to be divided.  In silence one student writes an offer on a slip of paper and hands it to the other student, who may only write, “accept” or “reject.”  Often a foreign (LL.M.) student will offer more than 50 cents to their partner in an effort to show good faith for future negotiations (even though there is no promise of future rounds in the exercise).  

Just as the students in my class scratch their heads and marvel at the idea of offering more than half a dollar, so too American liberals are scratching their heads at the president’s preference for compromise.  As a matter of simple political calculation, Obama may see public comments of a distributive nature as counterproductive and hurtful to his efforts to appeal to the moderate center.  After all, it is unlikely that his liberal base will abandon him in the next election.  Perhaps Obama is more competitive than it seems and his desire for “revenue enhancements” was a bargaining chip utilized to force agreement on raising the debt ceiling? There is so much we can never know.  Even without a villain, the president must communicate his vision to the American people.  In doing so he can improve his BATNA, his negotiation position, and his effectiveness at the negotiation table. 

Brian Pappas, LL.M., J.D. is an Assistant Clinical Professor, and Associate Director of the Alternative Dispute Resolution Program at Michigan State University’s College of Law.

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Andrea Schneider
Andrea Schneider is a professor at Marquette Law School teaching ADR, Negotiation, Ethics, International Law, International Conflict Resolution and Art Law. She is the author or co-author of numerous books and book chapters in the field of dispute resolution. She serves as the editor of ADR Prof Blog.

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