December 21, 2012
Shortly after the 2011 debt crisis, I wrote a post titled “Neutral in Chief?” in which I suggested that, while President Obama was perceived to have “lost the debt crisis negotiation,” he may not have seen himself in the role of negotiator at all. He may in fact have seen his role closer to that of mediator than of interested party. I argued that as President and leader of his party, he had an obligation to take a more assertive negotiating posture and to explain his goals to the American people.
I don’t know whether I was right about how Obama saw himself at that time. (It now looks like the Budget Control Act of 2011 may have been a brilliant piece of tactical negotiation. It certainly seems to have given Obama leverage by creating an unattractive BATNA for his counterparty.) However Obama saw himself then, though, he is now most certainly the Bargainer in Chief. And as Brian Pappas urged back then, he has done a much better job recently of telling a compelling narrative in support of his position.
Now that Obama has unequivocally taken on the role of lead negotiator, we will see his negotiating style in stark relief. He has already led off with a large concession–a concession that was rejected without a counteroffer by House Republicans. What now? Assuming he believes his BATNA is stronger than theirs, tit-for-tat would suggest that he make no further concessions and perhaps even retract his offer. He cooperated, his counterparty defected. Both game theory and more traditional negotiation dogma indicate that he should not “bid against himself” by making a second concession without significant movement on the other side.
Are there other options? In a recent piece in the LA Daily Journal (subscription required), Tom Stipanowich exhorts both sides to follow the example of Lincoln and turn to principled negotiation, including focusing on problem-solving (rather than partisan invective), looking for trade-offs and creative solutions (turn to a truly neutral third-party?), and finding a common enemy (a second recession) to cooperate against.
A majority of House Republicans seem to have rejected that approach, at least for now. Perhaps a Republican minority will join with House Democrats to negotiate a compromise position that would satisfy most of the President’s interests. A little joint problem-solving would be a welcome change. Until that happens, however, Obama should not make further concessions unless he is convinced that he cannot live with his BATNA.
Regardless of how this plays out, it is now clear who the real party in interest is on the Democratic side. Barack Obama. As much as his health care plan, the outcome of this negotiation will determine his legacy.
Last 5 posts by Paul Kirgis
- Works in Progress Conference - Save the Date - April 2nd, 2014
- Zimmerman & Remus on Mass Settlements - March 31st, 2014
- ADR Writing Competitions - March 31st, 2014
- Denial of Certiorari in Delaware Chancery Arbitration Case - March 25th, 2014
- Bargaining with Consequences - February 27th, 2014