{"id":848,"date":"2010-11-17T08:34:38","date_gmt":"2010-11-17T15:34:38","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/hnlr\/?p=848"},"modified":"2013-11-23T18:29:22","modified_gmt":"2013-11-24T01:29:22","slug":"negotiation-advice-for-the-112th-congress","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/hnlr\/2010\/11\/negotiation-advice-for-the-112th-congress\/","title":{"rendered":"Negotiation Advice for the 112th Congress"},"content":{"rendered":"

by Robert C. Bordone and Tobias Berkman*<\/p>\n

\"\"<\/a>There will be many post-mortems in the wake of the historic changes brought about by the 2010 mid-term elections.\u00a0 But no matter where you stand in American politics, it\u2019s hard to disagree with Senator-Elect Rand Paul\u2019s declaration Tuesday night that, \u201cThe American people are unhappy with what\u2019s going on in Washington.\u201d \u00a0It\u2019s clear that the American people want Congress and the President to do something. <\/em>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.<\/p>\n

With a divided government and the election of many legislators on platforms of \u201cno compromise,\u201d is there any hope that the next Congress will accomplish anything meaningful to address the multitude of challenges facing the nation?<\/p>\n

We think there is.<\/p>\n

We have devoted our professional lives to helping parties that are seemingly stuck in intractable, zero-sum conflict. \u00a0By 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.\u00a0 Sometimes, we can even repair relationships and transform conflicts.<\/p>\n

The atmosphere in today\u2019s Washington feels far removed from any such rapprochement.\u00a0 Nevertheless, neither party will be able to pursue a positive agenda over the next two years without the cooperation of the other.\u00a0 As a result, this election presents an opportunity for members of Congress to change how they work with legislators from across the aisle.\u00a0 To help them in this endeavor, we offer five basic pieces of negotiation advice for the 112th<\/sup> Congress:<\/p>\n

    \n
  1. Identify win-win issues to make strategic trades.<\/em> 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.\u00a0 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.\u00a0 By trading on such issues, both parties gain.<\/li>\n
  2. Look beyond the 24\/7 news cycle<\/em>.\u00a0 The media\u2019s appetite for sound bites and scandal is often insatiable. \u00a0Nonetheless, legislators have a higher purpose than showboating for the media. \u00a0Winning 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. \u00a0Our country\u2019s most renowned legislators, people like Ted Kennedy and Richard Lugar, have also been consummate dealmakers.\u00a0 Over the long term, achieving such renown requires reaching across the aisle and forging strong relationships with one\u2019s ideological foes.<\/li>\n
  3. Seek out low-risk venues for honest, open communication<\/em>. \u00a0Contentious negotiations rarely succeed if they are held in public because the parties cannot explore sensitive trades without upsetting their constituencies.\u00a0 Legislators should foster private, back-channel methods of communication that allow them to engage with the other side, not the TV cameras.\u00a0 The challenge of fostering such methods has increased enormously in the age of C-SPAN and cable news.\u00a0 It is nonetheless vital.<\/li>\n
  4. Sequence issues strategically to build trust.<\/em> Complex, multi-stage negotiations are most successful when the parties build trust and momentum through early wins.\u00a0 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. \u00a0Leaders from both political parties should work together to set a legislative agenda that increases the likelihood of early victories.<\/li>\n
  5. Engage genuine differences with vigor and principle.<\/em> We are not na\u00efve. \u00a0On at least some issues, such as tax cuts for the wealthy and healthcare, voters want their legislators to fight, not compromise.\u00a0 On these issues, a spirited battle should ensue. \u00a0Keeping these differences from spilling over and poisoning progress in other domains, however, is a hallmark of a truly great negotiator.<\/li>\n<\/ol>\n

    Some believe that it is not possible for members of Congress to heed this advice in today\u2019s political climate.\u00a0 We think otherwise, and have direct evidence to inspire our hope. \u00a0In July, we worked with high-level Washington political officials, both Republicans and Democrats, to train them in creative problem solving.\u00a0 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.<\/p>\n

    There remain reasonable officials in Washington and we attribute good faith to the new members who will soon arrive in the nation\u2019s capital.\u00a0 With the right approach and incentives, the next Congress might actually accomplish something meaningful over the next two years.<\/p>\n

    *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.\u00a0 Tobias Berkman is an Associate at the Harvard Negotiation and Mediation Clinical Program.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

    With a divided government and the election of many legislators on platforms of \u201cno compromise,\u201d is there any hope that the next Congress will accomplish anything meaningful to address the multitude of challenges facing the nation?<\/p>\n

    We think there is.<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[38,1],"tags":[39],"class_list":["post-848","post","type-post","status-publish","format-standard","hentry","category-hnlr-online-article","category-lead","tag-hnlr-online-articles"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZSkE-dG","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/posts\/848","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/comments?post=848"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/posts\/848\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/media?parent=848"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/categories?post=848"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/tags?post=848"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}