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John P. DiBartolo Jr.: The way of negotiation

Each time I hear or read about “negotiation” in Washington, I am reminded of a quote by “The Princess Bride” character Inigo Montoya: “This word, you keep using it; I do not think it means what you think it means.”

Negotiation involves convincing the opposing side of the merits of your perspective. Negotiation involves careful consideration of proposals and contrasting them with the prospect of failing to resolve the matter. The prospect of a failed negotiation should guide each side as it contemplates the concessions it might be willing to make.

To be clear, a negotiation should involve concession by both sides. This is especially true when a failed negotiation does not lead to a neutral third party deciding the matter on its merits. Although the two sides in Washington behave like adversaries, they are not part of an adversarial system in which a judge or jury will decide the outcome after negotiations fail.

The first step in any negotiation is generally referred to as narrowing the area of disagreement. The two sides identify matters about which they agree and set them aside to focus on areas of disagreement.

This step is critical in distinguishing a productive negotiation from an unproductive argument with no chance of leading to agreement.

Two recent examples of political arguments that were not negotiation are the “fiscal cliff” and “debt ceiling” debates. In each of these cases there was an agreement between the two sides on critical points. In neither case were the agreed-upon points set aside to narrow the area of disagreement so that true negotiation could proceed.

It was agreed that neither side wanted a tax increase for 98 percent of Americans. The disagreement involved the tax rates for the remaining 2 percent. Rather than set the agreement aside and move on to contested points, congressional Republicans included the agreement in the argument. This failure to focus on where the sides disagreed hindered resolution of the matter — which naturally incorporated the points upon which the two sides had always agreed.

The argument involving the debt ceiling cannot be called a negotiation either because both sides agree the nation should honor its obligations. There exists an unrelated disagreement about how best to deal with the deficit. But rather than acknowledging the narrowness of the area of disagreement, the GOP for a time delayed negotiation in favor of yet another argument.

The refusal to set aside what’s already agreed upon is euphemistically called “leverage” by one side and “hostage-taking” by the other. The latter characterization is perhaps unhelpful, but not unfounded. By refusing to do what they agree is right, Republicans suggested they would do what they knew to be wrong to get their way on another issue. A promise to allow preventable harm that both sides agree is wrong is not leverage; it is a threat and it is unethical.

True leverage would involve one side gaining strength in a negotiation by promoting an outcome it believes to be right and the other side believes to be wrong. Threatening to do something that both sides agree to be wrong has no place in any negotiation.

Without concessions, agreements cannot be reached. In some cases, that might be preferable to the concession. However, matters of agreement should not be consigned to the same fate. It is time our elected leaders advocate the merits of their positions without resorting to unrelated threats. It is time they learned the meaning of negotiation.

John P. DiBartolo Jr. is an attorney who maintains law offices in Northampton, Easthampton and Greenfield, where most of his days are spent negotiating.

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