Tuesday, March 16, 2010

The Nangotiator

I’ve done a lot of negotiating in my time. From sentencing agreements to mediating all manner of civil cases to negotiating contracts for companies, some of whom you’ve heard of, I’ve done it all. I’ve had easy negotiations, hard negotiations, and impossible negotiations. I’ve been reasonable and unreasonable, and I’ve dealt with reasonable and unreasonable. I’ve even walked out of negotiations. And in all that time, certain universal truths about reaching deals have revealed themselves. Nancy Pelosi violates those truths seemingly on a daily basis. Nothing has shown this more than three things she’s done this week.

Caught Bluffing
One of the first rules you learn about negotiation is that a little bit of puffery is to be expected, but lying is a deal killer. What is the difference? Puffery is a suggestion that you might be holding a stronger hand than it may appear. It is intended to feel out the other side without tipping your hand. People know this and they don’t get offended by it. An example of puffery might be: “I’m confident we’ll have the votes.”

Lies are a different story entirely. Lies are assertions that are not true, like: “We have the votes right now.”

So why is the lie bad? Because negotiations are about reaching a comfort zone where neither side feels like they had to give up more than other side to reach the deal. When one side is lying, it becomes impossible to evaluate this with any certainty. Consequently, the other side will either walk away or start presenting take it or leave it deals at the far end of their own comfort zone. In other words, if I can’t trust what you are saying, then I will work out the deal I want and I’ll present it to you as a take it or leave it deal, because I will no longer concern myself with trying to address your concerns.

Pelosi lied last week when she claimed she had all the votes she needed to pass health care. It was obviously a lie and it was intended for two reasons. First, she wanted to scare the NO voters into thinking that the battle was over and that they were about to be on the losing side. Secondly, she wanted to scare wavering YES voters, by making them fear that switching to NO might make them responsible for killing the entire bill.

This might have worked, except that the lie was so obvious and by Sunday morning, she had been exposed. Now she looks weak and desperate and untrustworthy. There is no reason for a NO to reconsider and the wavering YES votes should get even more skittish as they move to the most comforting end of their comfort zone.
The Bad Bluff: Take It Or Leave
The next worst thing you can do in a negotiation is the bad bluff. When you tell the other side that you can’t go any lower/higher, you better be telling the truth. If they reject your offer and you come back with a lower offer, then the other side knows they have you, and they’re going to drive the price all the way to what they think is probably your truly lowest offer. Why? Because this will confirm to them that you don’t have a serious idea of what your side is worth, and they will treat all of your subsequent entreaties to the contrary as just negotiation ploys, at least until they come to the point that they think is your true minimum.

Pelosi spent Monday telling everyone that she was done dealing. There will be no more bribes, it is time for a vote, she claims. She’s bluffing, and this is a huge mistake. Since she doesn’t have the votes, she will need to go get some, and that means more bribes. But as soon as she bribes one more Congressional, and thereby proves that she is bluffing, all the others will demand their own deals. Moreover, since everyone already knows that she is lying, there is no reason not to hold out at the moment. Indeed, this even gives YES votes an incentive to shift to the NO camp just in the hopes of getting some goodies sent their way. Essentially, she’s put herself into a situation where she now needs everyone, which will cause the very people she needs to increase their demands.
Demonstrating A Lack of Good Faith
Finally, when you raise a concern in a negotiation and the other side responds with a fake solution, it doesn’t take long before you lose confidence that the other side is dealing in good faith. The natural response in that situation is to stop negotiating in good faith yourself. Basically, you stop working your way toward the middle ground and you stand pat with your last offer.

This is exactly what Bart Stupak has done. In an interview this weekend, Stupak stated flatly that he now believes that Pelosi never had any intention of addressing his concerns. Therefore, he considers the negotiations over and he won’t support the bill -- and keep in mind, he was a YES originally.

So what does Pelosi do now? She repeats this mistake with the entire NO camp by offering the Slaughter Rule. Many Democrats are concerned that voting for the health care bill will become a political death sentence. They’re right. (See the very correct cartoon on the right.) So Pelosi proposed a solution, the Slaughter Rule. The Slaughter Rule, for those who haven’t heard, would allow the Democrats to vote on a rule that would deem the health care bill passed rather than voting on the bill directly. Since no one would need to vote on the bill itself, Pelosi argues that this should resolve her members’ concerns. But anyone who thinks that voters won’t be able to see that voting for the rule and voting for the bill are the same thing is a fool. Thus, Pelosi has presented a bad faith solution in response to the legitimate concerns raised by the NO camp. Their response should be to stiffen their spines, just as Stupak has done.

Way to go Nancy.


Tennessee Jed said...

good post, Andrew. I also have done more than my fair share of negotiations over the years and have attended seminars by some of the best in the business. Your assertions are all on point. My only concern is, given the extraordinary power of the presidency, this wicked witch of the west may end up suceeding in spite of herself.

BevfromNYC said...

The only thing that Three-headed Hydra - Obamapelosireid - has proved to be the truth is how arrogant it is...they are?

And Pelosi really believes that incumbant Democrats will be able to go back to their constituents and say with a straight face that they did not vote for the bill because of the Slaughter Rule.

AndrewPrice said...

Jed, If she succeeds, and right now it still looks like she won't, it will be entirely despite her best efforts. It will be, because as you say, Obama has the world's biggest bully pulpit and that carries a lot of weight.

It will also be pure fear, in that the left is already announcing plans to run third party challengers against NO voters.

Right now, I'd say that she's actually the biggest reason this hasn't happened.

AndrewPrice said...

True Bev. This failure has arrogance written all over it. They assumed that they could do anything they wanted and everyone would just fall in line, and that has been their undoing. Obama failed by detaching himself, Pelosi failed by being insane and trying to get everything she wanted by force, and Reid failed by following Pelosi's lead even though he should have known the Senate is a different animal than the House (something Pelosi should have accounted for herself as well).

And you're right about the Slaughter Rule, they really think the public will accept the distinction, which just goes to show how insane she really is. That's like saying, I fired the gun, but the bullett did the actual killing. No one's going to buy that. In fact, it sounds cowardly and dishonest, and like an attempt to evade responsibility. So you just ended up adding that to the reasons to vote against these people.

Writer X said...

I can't see anything that this lady has done right in terms of negotiations. She's a textbook example of what not to do. Now she just looks desperate. Unfortunately, she's bad enough to still be dangerous. She's got the Democratic representatives in my state like Giffords, Mitchell, and Kirkpatrick afraid to answer their phones or even emerge from their offices.

patti said...

the daily bombardment of pelosi's knives-in-our-backs sickens me. everyday she/they think of new skeevy ways to screw us. scares the hell out of me to think where this might end.

AndrewPrice said...

Writer X, She has really done just about everything wrong. She inspired the other side, demoralized her own, and created a series of bills that simply can't be passed. And the whole time, she's been basking in the accolades of being a great leader. None of that is consistent with good or effective leadership.

But that's good for us. If she had been the least bit rational, we could have been in serious trouble after the last election. But Pelosi really saved our rear ends. We should send her a thank you card.

And you're right about the Democratic members, they're terrified all over the country. They know what's coming -- especially after the town hall disasters, after far left Massachusetts voted Republican and after Nelson went home and got jeered at a restaurant. They are no living fear.

AndrewPrice said...

Patti, That's the other side of the coin, not only is she demoralizing the very people she needs to pull to her side, but she's completely agitating people like us who would never agree with her and who she should be trying to either (1) demoralize or (2) just keep us from paying attention. But she just can't stop herself. That's a huge mistake.

patti said...

and now there's this gem: http://www.washingtonexaminer.com/opinion/blogs/beltway-confidential/Pelosi-Once-we-kick-through-this-door-more-reform-will-follow-87741467.html

plainly telling us their plan.

CrisD said...

She is really not "negotiating" is in the true sense of the word.

Patti, Byron York's pithy response to that post was "Who's door is she kicking in anyway?"
Tx. For the link.

Andrew, what about Supreme Court appeal (sorry, if you've written on it as I am late to the party)

AndrewPrice said...

CrisD, She actually is negotiating behind the scenes with the NOs and the wavering YES votes.

Which Supreme Court appeal? I'm a bit out of the loop at the moment working on a project.

CrisD said...

Am sorry. I know she is "negotiating" but I believe she is bribing the maybes, etc. They are using the "Slaughter Solution" by deeming bill passed instead of passing it. That is why I say she is not really negotiating. But I take your points, believe me.

I am suggesting that some say that the "Slaughter Solution" is unconstitional in this case and asking if there could be legal redress.

LawHawkSF said...

Andrew: I have a few random thoughts about Pelosi, Reid and negoshatation.

As for the Slaughter Solution--we lawyers ought to be hanged in the public square for inventing the concept of "deeming" something that is not true to be true. Deeming a fact to exist when it is agreeable to both sides and serves the purpose of reaching a common goal smooths the way for solutions. Deeming a thing to be true when it serves the purposes of only one side creates problems in the future that are far worse than the problem the deeming was originally designed to solve.

Pelosi and the gang have forgotten a major rule of diplomacy and negotiation: Never back your opponent into a position from which he cannot retreat and from which he cannot advance without all-out attack.

The Parliamentarian has ruled that if the Slaughter Solution is invoked at all, it must be without further negotiations or modifications of the Senate bill. And it must be sent to the President for signature before "fixing" it can even begin ("reconciliation"). That leaves her with Democrats who know full well that once that bill is signed into law, the left will have no incentive to take care of the objections that the House Democrats have to the Senate version. Obama will be off to bow and scrape to some more Asian dictators, and the moderate Democrats will be left to explain to their constituents why they voted for this abomination (as you mentioned, Stupak has figured this one out).

CrisD said...

Tx. Lawhawk.
Also went to Red State blog and read a great post on it by "E Pluribus Unum"

AndrewPrice said...

CrisD, The Congress has the power to establish its own rules and procedures -- no matter how strange. The Supreme Court has said this several times. So the Supreme Court is highly unlikely to even hear a case about the manner in which the Congress passed something, much less to strike the law down. They'll look at the substance of the law, but not how it was handled procedurally by the Congress (the same is not true for how the Executive implements it, where the Court does play an active role).

So basically, I think the Court would stay out of it.

AndrewPrice said...

Lawhawk, That was a funny ruling by their parliamentarian. It certainly throws a monkey wrench into the Slaughter plan. But it sounds like Pelosi might try it anyways. She’s just crazy enough to think it will work.

The ones who are going to be really upset by this are the leftists like Kucinich, not the moderates. The moderates are fine with the Senate bill (except for the abortion issue). It's the leftists that are upset by the "moderate" Senate bill. They're the ones who need to believe that the Senate will actually go back and do a reconciliation to get them the things they're losing -- which won't and can't happen. That’s why Obama spent the day with Kucinich yesterday.

LawHawkSF said...

Andrew: That's not why Obama met with Kucinich. They spent the day discussing their alien encounters. Kucinich told about seeing little green men, and Obama told about bowing to Ming the Merciless, Emperor of the Universe.

I agree that Obama has alienated both his left and right flanks. The blue dogs just seem to be a little better at articulating their specific objections, where the left is left simply moaning that socialism isn't coming fast enough.

AndrewPrice said...

Lawhawk, Is that why Obama was bowing? I knew there had to be reason. LOL!

StanH said...

San Fran Nan, the gift that keeps on giving. I too have been in many negotiations and the moment the other side knows you don’t have the cards you claim, you’ve lost. Healthcare is a fraud, and the customer (the American people) have figured it out, no sale.

But these are devout statist, and I still believe we are going to get something, healthcare is the ultimate power, their Holy Grail as has been said. If they put this piece of feces through using Budget Reconciliation, it can damn well be taken out using the same process. Pay back’s a bitch!

AndrewPrice said...

Stan, she it totally the gift that keeps on giving.

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