OPEN & SHUT

When I went to sleep on my birthday, it was open; when I woke up the next morning, it was shut. And it remained shut for the next 34 days . . .

There are valuable lessons to be learned about negotiating strategy and tactics by analyzing the negotiations that surrounded the recent government shutdown, especially the exchange of letters between Speaker Pelosi and President Trump concerning the State of the Union address.

Having originally extended an invitation on January 3rd, Speaker Pelosi wrote to President Trump again on January 16th, suggesting that they “work together to determine another suitable date after government has reopened” to deliver the State of the Union address.

Rather than accept her offer, which — putting politics aside — was not inherently unreasonable, President Trump responded the next day by sending a letter to Speaker Pelosi which read, in part: “Due to the Shutdown, I am sorry to inform you that your trip to Brussels, Egypt, and Afghanistan has been postponed. We will reschedule this seven-day excursion when the Shutdown is over. In light of the 800,000 great American workers not receiving pay, I am sure you would agree that postponing this public relations event is totally appropriate.”

By choosing to respond as he did, it seems likely that President Trump had fallen victim to “reactive devaluation” — the notion that the inherent distrust of an adversary’s motives will often lead us to discredit, devalue and reject a proposal solely because it was made by the adversary, even if we might otherwise consider the proposal to be reasonable.

What if President Trump, instead of instinctively shutting the door on Speaker Pelosi’s suggestion, had actually expressed that he was open to her proposal? Consider how his negotiating leverage might have improved had he instead responded as follows:

“Madame Speaker, I could not agree more. There is a time and place for the State of the Union, and that time and place most certainly is not while the government is shut down. I invite you and Senator Schumer to the White House to meet with me at your earliest opportunity to once again explore how we might together bring this unfortunate shutdown to an end without either side having to compromise its core principals, values and ideals.”

Better yet, consider how much stronger President Trump’s bargaining position might have been had he pre-empted Speaker Pelosi by responding to her original January 3rd invitation as follows:

“Madame Speaker, although I appreciate your gracious invitation to deliver the State of the Union address on January 29th, I must respectfully decline at this time. Until we have forged a compromise that will simultaneously bring this painful shutdown to an end and confront the larger immigration issues that are understandably of great concern to the American people, I am sure you would agree it would be inappropriate for me to deliver the State of the Union address before a Joint Session of the Congress.”

Whenever we succumb to “reactive devaluation,” we build cognitive barriers that undermine our ability to rationally assess whether an adversary’s proposal might actually work to our benefit. Before responding, we must battle our instinct to react so we can take the time we need to reflect.

Although there’s a case to be made that “reactive devaluation,” and the skepticism it generates, can sometimes be healthy and protect us from mistakes, that case is hardly open-and-shut.

As always, I would be pleased to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.

Best wishes . . .

Floyd J. Siegal

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