You may recall my recent post, Learning from Trump’s Negotiation Failure, which provided a post-mortem of the failure to enact the health care legislation he supported.  In our session on negotiation theory at the ABA SDR conference, TFOI Rebecca Hollander-Blumoff noted that she used this negotiation as a case study in her class.

SFOI Rishi Batra just pointed me to a useful article in Slate by Seth Stevenson, Donald Trump is a Terrible Negotiator, using negotiation theory to dissect President Trump’s negotiations since taking office.

The entire article is worth reading and I won’t repeat it all but I will note a recent illustration of President Trump’s negotiations.  He appeared to take a position insisting on funding for a wall on our border with Mexico and soon afterward reversed himself, indicating that he would sign a funding bill without funds for the wall.  The article noted that negotiation theory uses the term “anchoring” referring to the tactic of taking an extreme position to gain concessions and achieve a more favorable result than otherwise would occur.  The problem for President Trump is that he apparently didn’t gain any concessions in exchange for his willingness to sign the bill without funding for the wall.  The article points out that, in negotiation-speak, this is the dreaded negotiation against oneself, which negotiators generally avoid like the plague because it reflects their weakness.

Of course, it is premature to reach a definite conclusion about Mr. Trump’s negotiations as president.  There are some signs of resurrection of a health care bill in Congress and and he pledges to resume his efforts to fund the construction of a border wall.  Even if he succeeds in negotiations such as these, one should consider whether the successes would be because of his endeavors or despite them.

In addition to analyzing the results of these past negotiations, it is important to consider the effects on future negotiations due to the reputation President Trump is developing.   For example, during the election campaign, he promised to make Mexico pay for the border wall and to withdraw from the NAFTA agreement.   An article in today’s New York Times has the headline:  “A Calmer Mexico Sees Trump Anew: as a ‘Bluffer’ at the Poker Table.”  This is not the kind of reputation most negotiators want if they seek to extract concessions in negotiation.

Taking extreme positions and then backing away can produce double trouble.  It not only may fail to produce the desired concessions, but it may also embolden counterparts to take tougher positions without fear of retaliation.  For example, a Washington Post article reported, “Two cabinet-level officials in Mexico reached out to their U.S. counterparts to deliver a blunt message:  If Trump officially announced the U.S. intention to withdraw from NAFTA, Mexico would not return to the negotiating table.  Mexico would not, the officials warned, negotiate with “a gun to its head.””

John Lande is the Isidor Loeb Professor Emeritus and former director of the LLM Program in Dispute Resolution, at the University of Missouri, School of Law. He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison. He is also an avid writer and contributor to Indisputably.org