Political Negotiation

A Handbook

Jane Mansbridge, Cathie Jo Martin

• Publisher: Brookings Institution Press
• Year: 2015
• ISBN:
  9780815727309
• Topic: Politics & International Relations
• Subtopic: Political Parties
• Index: Politics & International Relations

The United States was once seen as a land of broad consensus and pragmatic politics. Sharp ideological differences were largely absent. But today politics in America is dominated by intense party polarization and limited agreement among legislative representatives on policy problems and solutions.Americans pride themselves on their community spirit, civic engagement, and dynamic society. Yet, as the editors of this volume argue, we are handicapped by our national political institutions, which often— but not always—stifle the popular desire for policy innovation and political reforms. Political Negotiation: A Handbook explores both the domestic and foreign political arenas to understand the problems of political negotiation. The editors and contributors share lessons from success stories and offer practical advice for overcoming polarization. In deliberative negotiation, the parties share information, link issues, and engage in joint problem solving. Only in this way can they discover and create possibilities, and use their collective intelligence for the good of citizens of both parties and for the country.

CHAPTER ONE
Negotiating Political Agreements

CATHIE JO MARTIN

The recent gridlock in U.S. Congress may well be a metaphor for the erosion of cooperation in contemporary political life. We Americans often value cooperation at the community level, but our national public space is dominated by endless bickering and stalemate, and our national political institutions seem to betray our best intentions. Many other advanced, industrial democracies do a better job at locating pragmatic solutions to pressing policy problems through political negotiation, using the very norms of cooperation that we teach our children and often practice in our communities. These nations manage the tussles and traumas of politics with a level of grace, efficiency, and effectiveness that today seems absent from the American political process, and they avoid the extreme deadlock that often paralyzes contemporary American politics. The “high-noon” brinkmanship between our Democrats and Republicans is fundamentally at odds with the quieter mechanisms for policymaking in Northern Europe, and our politics of stalemate sharply contrasts with their politics of cooperation. One wonders, then, why America—one of the most economically and socially vibrant countries in the world—has become relatively impotent in the political realm.

This book explores the problems of political negotiation, by which we mean the political practice in which individuals—usually acting in institutions on behalf of others—make and respond to claims, arguments, and proposals with the aim of reaching mutually acceptable binding agreements. We begin by considering the particular obstacles to political negotiation in the United States and the ways that Congress currently addresses these obstacles. Drawing from writings in experimental psychology, we identify forms of what we call negotiation myopia—that is, the mistakes made by the human brain in processing information and calculating collective political interests. We summarize how the institutions and procedural rules of collective political engagement help overcome negotiation myopia, and we highlight European and international examples of institutions that create dramatically different incentives for cooperation among political actors, interest groups, and citizens. We offer suggestions for how policymakers might overcome institutional constraints against negotiating agreement in politics.

In great part, the institutional obstacles to political negotiation in the United States are well known: a strong separation of powers between the presidency and Congress (with branches often controlled by different parties) and the structure of two-party competition (particularly when these parties are polarized and relatively equally matched) produce few incentives for political cooperation between the warring sides. By contrast, politicians in countries with multiple major parties must practice cross-party cooperation to gain and hold power, and the governments of those countries often have close linkages between the executive prime ministers and their legislative parliaments. Our two major parties in the United States have no such incentives. Win or lose is the name of the game, and constant conflict, changes in government, and frequent policy reversals make for an unstable policy and business climate.

U.S. institutions for organizing private interests do little to further successful political outcomes. For example, American firms are adept at demanding narrow regulatory concessions that pertain to their own industries, and Congress is bombarded with demands from every nook and cranny of the business community. Yet employers and unions have weak associations to help them meet collective political goals; consequently, they have difficulty expressing collective interests. They do not trust government, but they also cannot trust their collective selves.

It would be naive to think that all conflicts may be negotiated, and this is particularly true for the current American Congress (see chapters 2 and 3). Legislators may derive greater benefits from blocking deals than from making a good-faith effort for mutual accommodation. In their reluctance to negotiate a mutually acceptable compromise, they may be driven by their well-heeled funders, by electoral and partisan priorities, or by deep ideological divisions. Even political agreement does not ensure democratic or just solutions to policy problems: deals may benefit those at the negotiation table but may adversely affect those whose interests are not represented (for example, the future generations, the marginally employed, and the nonvoters). When reformers confront parties that prioritize electoral gain above substantive solutions to economic and social problems, and deep-seated ideological divisions result in stalemate and blindness to the fortunes of future generations, then political struggle rather than negotiation may well be the better recourse for altering the status quo.

Yet, despite the institutional odds against it, political negotiation sometimes works in the United States and elsewhere. This book analyzes how these episodes of success may occur. These unexpected successes in political negotiation often happen when participants adopt the rules of collective political engagement that routinely enable higher levels of cooperation in other advanced democracies. For example, procedural arrangements that incorporate a formal role for nonpartisan, technical expertise in policy deliberations in advance of specific legislative proposals may facilitate a collective “meeting of the minds.” Repeated interactions among participants establish informal punishments for deception and bloated claims at the same time that those interactions nurture norms of trustworthy behavior. Dire consequences for inaction (or penalty defaults) help prevent stonewalling behavior. Allowing negotiations to take place in private settings encourages pondering rather than posturing.

We argue that adopting many of these rules of engagement may facilitate deliberative negotiation, in which participants search for fair compromises and often recognize the positive-sum possibilities that are otherwise frequently overwhelmed by zero-sum conflicts. Of course, deliberative negotiation is possible only in situations in which some potential common ground or zone of possible agreement exists and participants have a genuine desire to achieve a deal. But practices of deliberative negotiation have been central to American democracy since the construction of our nation. We think that it is time to return to the basics. Thus, this book reviews the institutional disincentives for cooperation and rewards for conflict and also suggests best practices in the art of collective politics.

Negotiation Myopia

Individuals often fail to agree to resolutions that would leave everyone better off in part because the human brain falls prey to negotiation myopia, a constellation of cognitive, emotional, and strategic mistakes that stand in the way of achieving agreement and mutual gains. Two major forms of cognitive myopia—fixed-pie bias and self-serving bias—impede successful negotiation. A successful negotiation may either simply settle on some point in the zone of possible agreement among the parties or, more expansively, produce an agreement that captures all the joint gains that can be discovered or created in the situation. Fixed-pie bias prevents participants from seeing and exploiting all possible joint gains and sometimes prevents any agreement at all. Self-serving bias makes the parties to the negotiation overestimate their likelihood of winning, thereby standing in the way of actually making an agreement. Emotions also may block successful negotiation; the emotional barrier of anger particularly interferes with the production of collective agreement. In addition, myopia relevant to our sense of timing—such as uncertainty and difficulties considering second- and third-order effects—may distort or diminish our incentives for long-term thinking because few want to make short-term investments in exchange for risky, long-term rewards (Jacobs 2011, p. 52). Global warming is a classic example of time myopia: citizens are asked to make changes in their lives and automobile manufacturers are called on to invest in emissions-reducing technology that will have an impact on climate change twenty years hence.

Strategic hardball tactics also can stand in the way of concluding successful negotiations. Such tactics particularly come into play when parties seek to maximize personal interests over broader, collective ones or to use blocking mechanisms for political advantage. As the chapter on the causes and consequences of polarization in the United States explains, such tactics bring the most benefits when the parties in Congress are almost equally matched: if the minority party can possibly gain the majority in the next Congress, it has strong political motivations to prevent policy successes that will result in electoral advantages for the current majority party. In any negotiation, participants may rationally reject a resolution that benefits them in the short run if they believe that forgoing immediate gains will set them up for an even bigger future victory. This is no less true of Congress. At a significant point in the Clinton-era negotiation over health reform, for example, Republican strategists determined that their best chances for a surge in public support at the next election lay in simply killing the Clinton health-reform bill. Thus, they urged legislators to reject any alternative bipartisan measure. The tactic was highly successful in the short run. Along with many other developments, however, it helped poison future relationships, undermining the potential for long-run joint gains.

Deliberative Negotiation

Under certain conditions, negotiation myopia may be overcome with institutional rules of collective engagement that enable deliberative negotiation, by allowing participants to rise above their internecine squabbles and focus on value-creating accords. By deliberative negotiation, we mean negotiation characterized by mutual justification, respect, and the search for fair terms of interaction and outcomes. This kind of negotiation lies between pure deliberation, in which the parties develop a collective understanding of the problems confronting them and seek to articulate a common good, and pure bargaining. It may include fully integrative negotiation, partially integrative negotiation, and fair compromises.

In fully integrative negotiation, the parties find a creative way to approach the problem that provides both with what they actually want and neither party loses. More often, in what we call partially integrative negotiation, the parties find or bring in a host of issues on which they place different priorities so that they can trade on those items that are high priority for one and low priority for the other. As Binder and Lee point out in chapter 3 on deal making in Congress, this kind of negotiation is more possible in Congress than in the commercial or legal world because Congress will usually be looking to resolve numerous issues at any one time. Linking those issues in a productive way is thus easier than when complementary issues must be sought out and actively brought into the discussion. Finally, deliberative negotiation includes the search for fair compromises. As with the search for integrative solutions, such a search is best conducted by members who know and respect one another and who appreciate as well the different and often conflicting interests that each represents.

Integrative, partially integrative, and fair compromise negotiations differ from pure-bargaining situations in which opponents strive to obtain the maximum number of concessions from one another. In pure bargains, the parties make distributive, zero-sum exchanges with particularistic payoffs, aiming solely for the greatest strategic advantage.

The issues of justice and the long term are also more relevant in deliberative negotiation. In a just deliberative negotiation, the parties at the table strive to incorporate as much as possible the interests of those not represented, including future generations. From a practical perspective, deliberative negotiations are also more likely to consider the longer-term ramifications of the agreements reached.

Rules of Collective Political Engagement and Conditions for Deliberative Negotiation

Lessons from the practice of political negotiation reveal some of the conditions under which negotiation myopia may be overcome and “pie-expanding” deals with joint gains may be obtained. We suggest that bargaining processes—whether in the sphere of private conflict resolution or national policymaking—are structured by rules of collective political engagement. These rules of the game stipulate specific procedural arrangements that set the terms of negotiation and define acceptable sources of information, patterns of interaction among participants, consequences for inaction, and autonomy of the bargaining partners. Choices of these specific procedural arrangements influence individuals’ conceptualizations of problems, their emotions about cooperation, and their incentives to take action. When a zone of potential agreement exists, the adoption of specific rules for collective engagement may overcome the various forms of negotiation myopia—and even shape the conditions for integrative negotiation.

First, participants must agree to acceptable sources of information. In some cases, the various sides rely on their own partisan facts; however, in other cases, the negotiation setting builds in an explicit role for nonpartisan third parties or technical expertise. These external experts may help participants overcome the forms of myopia related to perspective taking and incomplete information, mitigate self-serving biases in the perception of facts, foster a shared understanding of policy problems in more neutral terms, build shared conceptions of justice, diminish ideological left-right cleavages, and enable creative “cognitive leaps.” Countries have different rules about acceptable sources of information relevant to national political accords: these characteristic “knowledge regimes” and modes of discourse shape their production of policy ideas (Blyth 2002; Campbell and Pedersen 2014; Schmidt 2002). Some nations and international governing bodies use fact-finding bodies, peer review, and performance benchmarking against agreed indicators; these tools can help define problems and solutions in relatively neutral, mutually acceptable terms. Nonpartisan fact-finding bodies help correct self-serving biases in the facts, act as interpreters of truth, and contribute to all parties developing common conceptions of justice (Sabel and Zeitlin 2010). All these features enhance the opportunities for deliberative negotiation.

Second, a bargaining situation includes implicit decisions about patterns of interaction among participants; in particular, the decision to incorporate repeated interactions among parties may help overcome myopia-inducing short-term and zero-sum calculations. The fear of each party that others will not cooperate (for example, in the prisoner's dilemma game) creates incentives for short-term, self-interested choices. Bringing participants together in repeated engagements facilitates future punishments for uncooperative behavior and, consequently, fosters trust and commitment. It also cultivates shared perceptions of both the facts and the bargaining dynamics of the situation (Axelrod 1997; Hardin 1982; North 1990; Olson 1965). Particularly when negotiators are engaged in long-standing processes of cooperation, repeated interactions help them take the longer view and grasp one another's perspectives. Recognizing that repeated interaction in the legislative realm often requires long incumbencies, chapter 5, on deliberative negotiation, specifies criteria for judging when relatively uncontested elections in any district might represent the will of the voters and when this might reflect failures in democracy.

Third, decisions must be made about the consequences for nonaction in a negotiation process. Setting penalty defaults may move negotiators toward action, overcome blocking coalitions, and improve the chances for agreement (Ayres and Gertner 1989; Carpenter 2001; Sabel and Zeitlin 2010; Weaver 1987). By setting a penalty default, we mean creating a situation such that if the negotiating parties do not come to agreement by a certain time, a penalty that all parties want to avoid will become the default. In some cases, of course, procedural rules stipulating deadlines, exclusion from the table, and other action-forcing rules may simply overcome stalemate without moving participants toward pie-expanding deals. If judges are setting the penalty defaults, the accompanying expansion of judicial oversight may trespass on the legitimate policymaking prerogatives of democratic legislature (Ferejohn 2002). These are important trade-offs to consider. When courts threaten a penalty default if the negotiating parties do not agree on an alternative, the courts may be able to craft a default that promotes the broader public interest. The Los Angeles groundwater basis negotiations that provided the foundations for Elinor Ostrom's (1990) “bottom-up” theory of governing the commons were held under the California Supreme Court's threat of a penalty default. We call such a judicial move, or legislative moves in the same direction, the imposition of a public-interest penalty default.

Finally, decisions must be made about the degree of autonomy and privacy accorded to negotiators. In general, privacy boosts negotiators’ capacities to bargain effectively by producing some autonomy from influences that try to shift the focus away from the core objects of negotiation or that insist on hard-line positions opposed to compromise. Chapter 5, on deliberative negotiation, points out that legislative transcripts have revealed more expressions of mutual understanding in closed-door versus public legislative settings. The chapter takes up the normative trade-offs associated with privacy and specifies criteria for judging when the closed-door interactions required for effective negotiation might be most democratically acceptable.

Institutions and Rules for Collective Political Engagement: The Cross-National Perspective

Rules of collective political engagement are embedded in governing institutions and structure the deliberative practices and patterns of democratic struggle that contribute to diverse policy outcomes. Advanced postindustrial democracies face broadly similar challenges yet demonstrate different responses to exogenous threats. In some countries, the rules of engagement embedded in governmental institutions, as well as in the more transitory procedural arrangements in specific policy areas, help overcome negotiation myopia and facilitate deliberative negotiation. Moreover, because these rules of collective political engagement have an impact on actors’ strategic calculations of preference, they also influence the types of coalitions available to policy reform and the strategies for political struggle. In these countries, the strategic ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Introduction
• 1 - Negotiating Political Agreements
• Part I - Stalemate in the United States
• Part II - The Problem and the Solution
• Part III - Institutions and Rules of Collective Political Engagement
• Contributors
• Index
• Back Cover