Against Gridlock: The Viability of Interest-Based Legislative Negotiation
Harvard Law & Policy Review Online, Vol. 3, 2009
14 Pages Posted: 24 Dec 2010 Last revised: 26 Dec 2010
Date Written: April 23, 2009
Early evaluations of the Obama administration have often focused on the administration’s legislative negotiation strategies. But these discussions have largely neglected the distinction between two basic types of negotiation recognized in the professional negotiation literature: positional (or hard-bargaining) negotiation, and interest-based (or principled) negotiation. The former attempts to secure the maximum share of a fixed amount of value by adopting an extreme position, knowing that it will not be accepted, and then using a combination of guile, bluffing, and brinksmanship to cede as little as possible before reaching a deal. The latter, which President Obama has practiced since at least his time in the Illinois Senate, attempts to create value by focusing on the underlying interests of the parties rather than their arbitrary starting positions, approaching negotiation as a shared problem rather than a personalized battle, and insisting upon adherence to objective, principled criteria as the basis for agreement. In an attempt to introduce the concept of interest-based negotiation into discussions of the federal legislative process, this essay draws attention to some of the possible advantages of an interest-based approach to legislative negotiation—while also recognizing potential weaknesses, especially if the other side exploits the principled bargainer through the use of positional tactics. The essay closes by suggesting that a presidential administration’s most powerful tool in legislative negotiation may remain its ability to drive down opponents’ “best alternative to negotiated agreement” (BATNA) by fostering public support for administration policies.
Keywords: legislative negotiation, interest-based negotiation, principled negotiation, legislative process, congress, president, positional negotiation
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