Negotiation Advice for the 112th Congress

by Robert C. Bordone and Tobias Berkman*

There will be many post-mortems in the wake of the historic changes brought about by the 2010 mid-term elections.  But no matter where you stand in American politics, it’s hard to disagree with Senator-Elect Rand Paul’s declaration Tuesday night that, “The American people are unhappy with what’s going on in Washington.”  It’s clear that the American people want Congress and the President to do something. Given the dire state of the economy, persisting unemployment, and ominous long-term deficit forecasts, inaction is a guarantee of stronger anti-incumbent sentiment in 2012.

With a divided government and the election of many legislators on platforms of “no compromise,” is there any hope that the next Congress will accomplish anything meaningful to address the multitude of challenges facing the nation?

We think there is.

We have devoted our professional lives to helping parties that are seemingly stuck in intractable, zero-sum conflict.  By expanding time horizons, encouraging parties to think more deeply about their interests, putting issues that the parties initially overlooked on the table, and working to improve communication and build trust, we can often uncover mutual gains that break the impasse.  Sometimes, we can even repair relationships and transform conflicts.

The atmosphere in today’s Washington feels far removed from any such rapprochement.  Nevertheless, neither party will be able to pursue a positive agenda over the next two years without the cooperation of the other.  As a result, this election presents an opportunity for members of Congress to change how they work with legislators from across the aisle.  To help them in this endeavor, we offer five basic pieces of negotiation advice for the 112^th Congress:

1. Identify win-win issues to make strategic trades. Even if voters want their representatives to fight on certain points, there are a host of other issues in which political divisions are less salient and the parties have a shared interest in progress, such as education reform, trade, national security, and long-term deficit reduction.  There are other sets of issues where one party might care a lot and the other party might be largely indifferent, such as tax cuts for clean energy companies and increased spending on infrastructure.  By trading on such issues, both parties gain.
2. Look beyond the 24/7 news cycle.  The media’s appetite for sound bites and scandal is often insatiable.  Nonetheless, legislators have a higher purpose than showboating for the media.  Winning in 2012 or 2016 matters, but for most members of Congress, so too does the possibility of earning a reputation as a great legislator by 2025.  Our country’s most renowned legislators, people like Ted Kennedy and Richard Lugar, have also been consummate dealmakers.  Over the long term, achieving such renown requires reaching across the aisle and forging strong relationships with one’s ideological foes.
3. Seek out low-risk venues for honest, open communication.  Contentious negotiations rarely succeed if they are held in public because the parties cannot explore sensitive trades without upsetting their constituencies.  Legislators should foster private, back-channel methods of communication that allow them to engage with the other side, not the TV cameras.  The challenge of fostering such methods has increased enormously in the age of C-SPAN and cable news.  It is nonetheless vital.
4. Sequence issues strategically to build trust. Complex, multi-stage negotiations are most successful when the parties build trust and momentum through early wins.  When parties cooperate on small issues early in a negotiation to generate positive momentum and tangible gains, they are less likely to defect later when the issues become more challenging.  Leaders from both political parties should work together to set a legislative agenda that increases the likelihood of early victories.
5. Engage genuine differences with vigor and principle. We are not naïve.  On at least some issues, such as tax cuts for the wealthy and healthcare, voters want their legislators to fight, not compromise.  On these issues, a spirited battle should ensue.  Keeping these differences from spilling over and poisoning progress in other domains, however, is a hallmark of a truly great negotiator.

Some believe that it is not possible for members of Congress to heed this advice in today’s political climate.  We think otherwise, and have direct evidence to inspire our hope.  In July, we worked with high-level Washington political officials, both Republicans and Democrats, to train them in creative problem solving.  Across the political spectrum, these officials demonstrated an ability to disagree with passion but also to identify shared interests and goals, to listen to each other, and to work together effectively.

There remain reasonable officials in Washington and we attribute good faith to the new members who will soon arrive in the nation’s capital.  With the right approach and incentives, the next Congress might actually accomplish something meaningful over the next two years.

*Robert C. Bordone is the Thaddeus R. Beal Clinical Professor of Law at Harvard Law School and Director of the Harvard Negotiation and Mediation Clinical Program.  Tobias Berkman is an Associate at the Harvard Negotiation and Mediation Clinical Program.