WHAT’S THE DIFFERENCE BETWEEN a collective bargaining agreement (CBA) negotiation in the National Hockey League and open-heart surgery? One of them is long, painful, and expensive with no guarantee that you will fix the problem. The other is a well-established medical procedure.
As of this writing, it has been over 20 years since NHL owners and players succeeded in negotiating a CBA without a strike or a lockout that caused serious economic damage. (A strike is a player-initiated work stoppage; a lockout is when owners initiate the work stoppage.) At the beginning of the 2012–13 season, owners locked out players so that no games would be played until a deal was signed. By the time they reached agreement, roughly four months later, almost half of the games had been canceled for the season. A similarly lengthy lockout had done the same degree of damage during negotiations in the 1994–95 season. The award for worst negotiation in professional sports might have to go to the disastrous 2004–05 NHL season. That lockout lasted over ten months, and every single game of the season—all 1,230 of them—along with $2 billion in revenue, was lost because the two sides could not reach a deal. After each of these lockouts, the media has speculated as to who won and who lost. A pattern seems to have emerged: the owners often look like winners on the day the contract is signed, but as the complex contractual terms play out over the ensuing years, we usually find out the players actually did quite well.
It was not always so. The dispute in 1992 was an entirely different story. The work stoppage that year lasted only ten days, from April 1 to April 11. When the dust settled, there was no debate: the players had gotten almost everything they had demanded. It was the shortest and most effective work stoppage in NHL history, perhaps in all of professional sports. What accounts for this difference? Why was this conflict so short-lived? Why did the players win so handily?
The players were not better organized or more aggressive in 1992. Nor did they demonstrate special skills at the bargaining table. In fact, the outcome had almost nothing to do with how the two parties negotiated, and everything to do with when they negotiated. The one savvy—or fiendish, depending on your perspective—tactic the players used was choosing not to call for a strike at the start of the season in October, but to wait until it would be most harmful to owners. The season started with no signed CBA in place, but games continued while the owners and players negotiated. Then, as soon as the regular season ended and the playoffs were about to begin in April, the players walked out. This gave them tremendous leverage. Simply put, players earn paychecks throughout the season, but owners stand to make a disproportionate amount of their profits during the playoffs. With the playoffs held hostage, the cost of not reaching a deal was asymmetric; owners now had much more to lose. The result? The players got everything they asked for.
After being burned in 1992, the owners seem to have made sure they would never be caught in such a vulnerable position again. Every time a CBA has come up for negotiation since 1992, the owners have preemptively locked out the players at the start of the season.1 This destroys tremendous value, all in the service of ensuring that both sides are losing money and owners are not the only ones having to make concessions. Waiting to strike before the playoffs may have seemed like a brilliant tactic in 1992, but it’s the kind of tactic you can use exactly once. The 1992 strike, which was the first NHL work stoppage in 75 years,2 created a destructive precedent that has been unbroken since.
In protracted conflicts where finding a solution will take a long time—and in relationships where the parties will have to negotiate with each other again in the future—it is necessary to preserve forward momentum. Forward momentum is the deliberate, gradual progress towards eliminating obstacles and creating the conditions that might eventually lead to a successful outcome. Unfortunately, as seen in the NHL example, short-term temptations abound that create the risk of sacrificing forward momentum. The desire to “win” today can make it difficult to make even modest progress tomorrow.
There is nothing, per se, inappropriate about trying hard to get the best deal for one’s constituents. The problem surfaces when this pursuit induces negotiators to break long-standing norms of behavior, to disrupt implied or explicit agreements, or to legitimize the use of “whatever it takes” tactics in an environment where cooperation and moderation might have otherwise taken root. Instead of doing whatever possible to make progress easier, negotiators who engage in such behaviors will motivate a desire for revenge and displace collaborative rules of engagement.
This happens not only in sports and politics, but all too often in business. It is easy to recall negotiators who have agreed to a deal only to renege on it and demand more when a better offer came along. In one case, a founder reached agreement and shook hands with a venture capitalist and then backed out when someone else threw a bit more money on the table. The VC held it against him for years and had no problem letting others in their relatively tight-knit industry know about it. I can think of other deal makers who took advantage of the other side’s vulnerability early on in a relationship, thereby displacing the norm of fair play that might otherwise have taken hold.
The same happens in diplomacy. One of the major barriers to the resolution of armed conflict in Colombia, for instance, arose in the 1980s when the Revolutionary Armed Forces of Colombia (FARC) entertained the possibility of phasing out their brutal armed insurgency in favor of joining the political process. After some early signs of electoral success by the FARC-affiliated political party (the Patriotic Union), paramilitary groups and government-affiliated security forces killed off many hundreds of its members, candidates, and elected officials. In negotiations ever since, whenever the government demanded disarmament by the FARC prior to granting political participation, the latter balked, making it all the more difficult to create a process that would lead to disarmament. More generally, in such conflicts, short-sighted attempts at one-upmanship on both sides of the table—the violent suppression of relatively moderate opposition groups (perpetrated by governments), opportunistic terror attacks (perpetrated by insurgents), and human rights violations and cease fire violations (perpetrated by both)—have long-term consequences for whether and when the parties can reengage productively and make progress towards achieving peace. Undoubtedly, spoilers or extreme factions who oppose a diplomatic solution will often commit these acts. But they are also, too often, committed by those who can envision a negotiated peace but who sacrifice progress in the pursuit of short-term victories and advantage.
Short-term greed is not the only reason negotiators sometimes sacrifice forward momentum. For example, in multiparty negotiations, even when intentions are benign, progress can be stymied if the group needs or desires consensus. Bringing everyone on board might be impossible, or prohibitively costly, and you may end up sacrificing the possibility of a viable deal in the pursuit of consensus. For example, in sports conflicts, there are not just two sides to the negotiation: big-market teams have different concerns than small-market teams, profitable teams have different interests than unprofitable teams, rookies have different interests than established players, and star players have interests that differ from those of average players. How do you ensure that everyone is happy with the outcome? When negotiating business partnerships, there will be people on the other side who value what you bring to the table highly, but also those who value it little, not at all, or even negatively. How likely are you to consummate a deal if anyone can block the partnership? Or, when a family is trying to organize a large reunion, or a couple is trying to make plans for a wedding, there may be many people who have or want a say in matters. It is worth thinking through whether it is wise to give everyone veto power.
Consensus certainly has its merits. There is something very appealing about having unanimous support for an agreement or decision. But the more people who have veto power, the fewer the degrees of freedom you have to structure a satisfactory deal, because there are too many demands on the limited resources available. The need to bring everyone on board creates a situation in which anything that isn’t bolted down is subject to compromise, and the emergent agreement is likely to be strategically shortsighted—that is, designed to solve current problems at the cost of ignoring or exacerbating future problems. Recall that this was precisely the problem with the Articles of Confederation. Consensus also creates incentives for “hostage taking,” as when someone knows that theirs is the final vote required and holds out for extreme concessions.
Because the pursuit of consensus can undermine progress and disrupt forward momentum, in large, multiparty negotiations, deal makers and diplomats will often try to adopt the principle of sufficient consensus. Instead of requiring that everyone at the table vote in favor of each proposal, the parties agree that negotiations can proceed as long as there is a “high enough” level of acceptance among and within the parties (e.g., 80% of all parties must agree in favor of the provision, and 60% of all individuals must agree). We see such an approach taken in everything from international climate deals, to peace processes, to the adoption of national constitutions. To avoid giving one or a few parties the ability to derail the process or to scuttle a final agreement, the requirement for progress and ratification needs to be lowered. A similar approach can make sense in corporate contexts. Consensus may be necessary and achievable in some circumstances, but when there is a high degree of conflict, leaders who make it clear that they want input and support, but do not require unanimity, are more likely to be able to implement ideas and avoid unhealthy inaction.
What if the final agreement, for whatever reason, must be accepted by all parties? You can still safeguard forward momentum by using a sufficient-consensus process for all of the deliberations that will precede a final deal. In other words, when negotiating an interim agreement, or when drafting any individual provision of what will eventually be a final deal, “sufficient” support around the table is enough to move negotiations forward; at the end of the negotiation, all parties can still vote yes or no on the final, comprehensive deal that is reached. I have often advised the following when negotiating in contentious environments: Keep a low bar for progress, but a high bar for final agreement. This preserves momentum because it reminds people that although every person at the table is likely to find certain elements of the deal to be objectionable, or even abhorrent, these ought not to be showstoppers; it may be wise to continue the negotiation to see whether the final agreement is still preferable to no deal.
Earlier we discussed the benefit of negotiating multiple issues simultaneously rather than negotiating one issue at a time. When there is limited trust, this allows both sides to ensure that their concessions in one area are being reciprocated in another. However, in especially complex negotiations, it is not always possible to discuss all of the important issues simultaneously. For example, in peace processes, the different issues (e.g., disarmament, economic reform, political participation) may be addressed months apart; in large international agreements, there may be separate channels to discuss different issues. Even in business deal making it is often the case that different elements of the deal will need to be negotiated by different people and at different times. One of the concerns negotiators will raise in such situations is that it is too risky to concede or even signal flexibility in one area when you do not know how other aspects of the deal will turn out. This way of thinking can bring progress to a halt. One partial solution to the problem is for all parties to explicitly agree to the principle of “nothing is agreed until everything is agreed.” Accordingly, all sides acknowledge that nothing either side has said, implied, or proposed is irrevocable until a full agreement is reached. This gives people greater freedom to brainstorm different solutions and to experiment with being more conciliatory on parts of the deal, knowing that their right to retract any partial proposal or individual concession is protected by “until everything is agreed.”
A similar logic is at play when deal makers and diplomats decide to negotiate behind closed doors, allowing minimal transparency into the deliberations. As with consensus, transparency is beneficial for many reasons, but in the case of extremely difficult negotiations, transparency during the bargaining process often does more harm than good. It is hard enough for negotiators to reveal that they are willing to compromise when the discussion is private. If every statement, concession, or proposal will be made public before there is any guarantee that a final deal is possible, negotiators will be under tremendous pressure not to say anything that might be construed as weakness or betrayal. When you are negotiating the seemingly impossible, this is an added constraint that you cannot afford. It will stifle progress.
Instead, you usually want to give the negotiators as much privacy as possible during the bargaining phase, and then make the final deal public to give stakeholders an opportunity to decide whether they support it or not. This was crucial during the negotiations that led to the drafting of the US Constitution. The same approach—making an effort to minimize media coverage and leaks—was pursued in the negotiations that led to the peace agreement in Northern Ireland, and during CBA negotiations in the NFL and NHL. It is also why early-stage negotiations between governments and armed groups are usually kept secret until there is sufficient momentum to allow each side to admit that it has been negotiating. Peace processes are never announced on day one; there is almost always back-channel activity to help create the foundation for talks. The likelihood that talks will collapse is especially high at the start, making it risky for governments and insurgents to let their constituents know that they are attempting a diplomatic solution to the conflict. Only when there is evidence to suggest that both sides are interested in and capable of pursuing a negotiated agreement will either side incur the cost of announcing negotiations.
While it is easy to understand why stakeholders would demand complete transparency throughout the process, if you are trying to negotiate an end to protracted conflicts, this is unadvisable. Of course, the process should ensure that constituents ultimately decide whether a final agreement should be accepted. But negotiators should be given the space they need to structure the best agreement they can.
The principle of forward momentum is a reminder that one way to judge the wisdom of our tactics and process choices is from the point of view of their likely impact on our ability to make progress in the days, months, and years ahead. As we have seen, negotiators might sacrifice progress if they are too focused on solving short-term problems or achieving short-term gains. But progress in the current negotiation is not the only potential victim of short-termism. A myopic approach to negotiating, even if a deal is reached, can exacerbate the likelihood of future conflict, or diminish our ability to resolve it.
How our behavior today will affect our ability to negotiate future conflicts is a question that is too often ignored, perhaps because our limited resources (e.g., time, attention, leverage) tempt us to focus myopically on the demands of the current deal. But history demonstrates quite clearly—not just in sports, but in personal relationships, business, international relations, and elsewhere—that today’s conflicts are often the result of how we conducted and concluded past negotiations. Effective negotiators keep this in mind. As the following chapter illustrates, even in seemingly intractable conflicts, it is important and possible to set a better course for future engagement.