More about Public Negotiations

My last blog was about a Washington Post article about the lack of competence we see in public negotiations.

F. Peter Phillips who writes the always interesting Business Conflict Management blog has noticed this as well. As he points out, “as formal training in private negotiation increases, the quality of public negotiation has fallen into such disrepair.”

Negotiators of all types are trained, first of all, to listen and to understand interests. Yet, as the Post article and Phillips both point out, listening is the one thing that appears to be missing from the public dialogue. And when have you seen politicians try to accommodate other interests while still addressing their own?

As Phillips asks, why? And is this something to which the ADR practitioners might speak? Well, yes.

A panel discussion at the American Bar Association Dispute Resolution Section 13^th Annual Spring Conference asked professional negotiators about poor public perceptions about political negotiations.

According to Phillips, Peter Adler of the Keystone Center asked that people recognize the true nature of the issue:

These are discussions of “public interest,” not private “interests.” It is the exercise of collective power. These talks are reported on the TV. It is not two parents negotiating child custody. Waiting for a moment of consensus in a legislature is like waiting for the exciting bit at a baseball game. It will come, but it will be unexpected and without any impact on the way the game itself is played. That’s why “Town Hall meetings are not a good forum to solve problems.” There is a role for the creative leader in public discourse, just as there is a role for the creative facilitator in the divorce discussion. But importing terms like “interest,” “collaboration” and ”facilitation” from the private sphere to the public one is inartful and displays a lack of sympathy with the process of public policymaking. (Emphasis added).

John Ferrugia, a guest panelist who is a veteran legislative reporter, noted an important distinction: Negotiators have an incentive to reach an agreement, while legislators have an incentive to retain their seats. Negotiators rely on their counterparty to seek shared interests, while legislators rely on their constituencies to get money to be re-elected. Can a legislator afford to break with the party on a budget issue? Is centrism viable when the funders are on the extremes? Is the process of politics rational? (Source: Business Conflict Blog)

Of course the process of politics is not rational. We shouldn’t expect otherwise. Politics is a reflection of us – including, or perhaps mostly – our irrational selves.

The Council of the Dispute Resolution Section adopted a resolution, introduced by Richard Reuben, for consideration by the ABA House of Delegate at the ABA Annual Meeting in August. The Resolution provides:

RESOLVED, that the American Bar Association reaffirms the principle of civility as a foundation for democracy and the rule of law. When dealing with the public as well as with one another, lawyers should set a high standard for civil discourse as an example for others in resolving differences constructively and without disparagement of others.

FURTHER RESOLVED, that the American Bar Association urges all lawyers, ABA member entities and other bar associations to take meaningful steps to enhance the constructive role of lawyers in promoting a more civil and deliberative public discourse.

FURTHER RESOLVED, that the American Bar Association urges all government officials and employees, political parties, the media, advocacy organizations, and candidates for political office and their supporters, to strive toward a more civil public discourse in the conduct of political activities and in the administration of the affairs of government.

FURTHER RESOLVED, that the American Bar Association supports federal, state, territorial and local governmental policies, practices, and procedures that promote civility and civil political discourse and that are consistent with the First Amendment, and other federal and state constitutional requirements.

Given that lawyers don’t a reputation for civility, is this not lawyers living in glass houses throwing stones? For example, see my blog Lawyer Jokes.

I wonder if this resolution will make any difference whatsoever.

As my children say, the most interesting political discourse no takes place on the Daily Show with Jon Stewart and Colbert Nation with Stephen Colbert.