Find Mediators Near You:

Negotiation Theory on the Edge of the Fiscal Cliff: The Limits of Rationality

My friend Forester kindly sent me a copy an article that appeared in the Washington Post yesterday, “What Negotiation Theory Can Teach Us About the Fiscal Cliff Talks” (Dylan Matthews, Dec. 21, 2012):
The reporter gathered the comments of a number of highly regarded negotiation experts on the current political negotiations over the impending deadlock over the looming tax increase for all of us, soon to occur absent a deal between the Democrats and Republicans over the distribution of tax burdens between the wealthiest among us and the rest.

Carrie Menkel-Meadow, the reporter offers, “recalled a former student who worked on the Hillary Rodham Clinton’s health care negotiations in 1994. “”He really wanted to make this principled negotiation thing work. It was wonderful. But he had to quit the approach because the wrangling methods used on the Hill were just so foreign to it. “People were doing trades all the time, it’s unprincipled and it has nothing to do with the merits.””

The clear suggestion is that negotiation in the world of politics is different from other contexts and is not susceptible to the reasoned negotiation process set out in Getting to Yes (1981), the short book written by the Harvard professors, Roger Fisher and William Ury. It is still touted as the “bible” of interest based negotiation and premised effectively of Rational Decision Making Theory. introduced in the mid 20th Century, which posits that people will make predictable decisions based on their calculated self interest, if given the opportunity. . I remain fascinated by the increasingly apparent gap between the prevalent rational theory which undergirds the teaching of negotiation and mediation, and intermittently practiced, and the realities of human decision making, which has been shown by research in neuroscience and cognitive psychology to be decidedly less rational. In fact, over the last 30 years, cognitive psychologists, Daniel Kahneman and Amos Tversky, and many since, have shown that the thinking and decisions of most people, including professionals, is predictably irrational and biased. (Kahneman, D. Thinking Fast and Slow, 2012) Negotiation and mediation will remain limited in application and public acceptance as long as it continues to fail to take account of this reality. And, what is going on in the political sphere is little different than much of the negotiation that occurs in every other business, personal or geopolitical matter. Negotiation and mediation may be sensible alternatives to war or litigation, but they are not rational processes.

On Dec 22, 2012, at 7:49 AM, Forester wrote:
I was brought up on a theory that you don’t negotiate with fascists (aka terrorists and republicans) – but you obviously do – except that the teaching goes if you do you set yourself up for endless blackmail. At some point you don’t have common goals or nothing more to give. The article assumes that in a larger sense the Rs and Ds want a healthy economy, but I just don’t see it – could you guys straighten me out before I fall over the cliff.

On Dec 22, 2012, at 10:35, R D Benjamin wrote:
Dear Forester, I am fearfull it would require another whole lifetime to cure you of your rationalist penchant. While not likely born with it, there is no question it is deeply ingrained & limits your thinking–not unlike the negotn experts cited in the Washington Post article. They too suffer from the same hyper-rationalist malady. They, as you, believe negotn is a rationalist enterprise requiring rational actors & faulting the current Dem-Repub for not being collaborative & interest based enough. All they have seemed to have forgotten/ denied is 10,000 years of human evolutionary development & the last 30 years of research in neuroscience & cognitive psychology which firmly establish that decision making & judgment contains a significant amount of predictably irrational behavior that Ratonal Decision Theory simply does not account for. Negtiation, therefore, while an eminently sensible alternative to killing each other when people disagree, is not an entirely rational process. As much as people and experts would like to believe in the “principled” civil process outlined by Fisher & Ury a scant 30+ years ago, their format, while still useful, is insufficient. A whole complex of what are commonly deemed “irrational” human emotions –fear, power, control, etc.—intrude on every negotiatn & cannot be avoided or dismissed. Hence, the evolutionary necessity for game playing, some deception, theatrics, and other forms of manipulation in order to sneak up on a sometimes barely workable agreement that does little more than allow the combatants to survive. Be it in politics, war, divorce, or business, differing only in degree not in kind, the negtn process plays out the same to the everlasting frustration of all of us who believe “the truth will set you free”, and reason prevails. Should you care to not negotiate–as infuriating and tedious as the process can be—I urge you to buy an AK-47 and begin stocking your survival shelter. Fondly, RDB

On 12/22/12 10:50 AM, Forester wrote:
Dear Mr. Benjamin I am shocked shocked that I would ever be accused of being rational – that’s almost as shameful as being predictable – for which I strive only in the eliminatory processes. My assumption, perhaps too implicit for your seemingly religious anti-rationalism, was that at least one party was deprived of the rational impulse. So the question is – in that case do you even bother negotiating and if u do, what does the trickster do. Still hoping for enlightenment. Sent by Forester.

My Dear Forester,
The enlightenment you seek is at the end of your nose: in engaging craziness, intransigence and zealotry, match it with your own. This might take the form of dragging your feet, making appeals to reason, extending the discussions on peripheral matters under the pretense that they are relevant to the issue, making a claim of moral purpose that suggests the immutability of your position, and appealing to higher authorities or deities. Whether sincere or not, the strategy frustrates, throws off balance and softens the resolve of one’s adversary. This is the point of being stubbornly intransigent, theatrics, deceptions, AND claims of a rational analysis of the issues that compels acceptance of the solution you have proposed without compromise.

In short, as any good trickster figure, shape shift and alter the context of the dispute. Act as crazy as they do; make your adversary as fearful as you are of them, that you are seriously demented and willing to go over the cliff, Saber rattle, accuse, recriminate and threaten to the same extent they do, however, under no circumstances, take yourself or them too seriously. Don’t commit the most common mistake of rationalist negotiators and assume the other person’s positions or claims of interests and needs, stated early-on mean much of anything; don’t allow yourself to be distracted by listening to words as opposed to trying to hear meaning and possible clues for use later on in the discussion. By stalling and going through such gyrations—-only to be used in parts equal to what the other side is playing—one can move all concerned into a state of exhaustion and allow them to back in to an agreement.

Peter Adler, another highly regarded negotiation expert, summed it up well in his email contribution to this discussion: “… people need to exhaust all their irrationalities before they can get “slightly” more rational. People negotiate after they have tried everything else.” This appears especially true for American negotiators who are characteristically over confident (sic: self righteous and stubborn) and hyper rationalists: these traits are both their strength and their weakness. Claims of being pragmatic problem solvers are exaggerated, to wit: the penchant to fight first and negotiate later, such as evidenced by the Revolutionary War, the ongoing Civil War, and perhaps the continuing desire to keep guns at the ready, just in case. Winston Churchill said much the same thing after having helped FDR deceptively drag the United States into World War II, none too soon: “Americans always do the right thing after they have exhausted every other alternative.”

Not a neat and tidy answer, I know. But the notion of “elegant” solutions that satisfy all parties in a “win/win” feel- good way is the stuff of myth. There are no Final Theories, God, if he or she exists, does play dice, and Camus, in Huis Clos, summed it up best, there is no exit.


Robert D. Benjamin


Robert Benjamin

Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care. A lawyer and social worker by training, he practiced law for over 25 years and now teaches and presents professional negotiation, mediation, and conflict management seminars and… MORE >

Featured Members

View all

Read these next


The Podcast Episode 4: ”The NDA Habit” and Implications for Mediators

In this episode, Julie Macfarlane--researcher, mediator, and educator--discusses the misuse of NDAs and what mediators can do to responsibly facilitate informed decision-making among parties in mediation, as it relates to...

By Julie Macfarlane, Veronica Cravener

Flat Fee and Up-Front Pricing, Death to the Billable Hour

From the blog Mediation Marketing TipsThe ABA Journal picked up an article originally published by the Boston Globe about a Boston area employment lawyer, Jay Shepherd, who has banned the...

By Kristina Haymes

We All Change… More Than We Admit!

PGP Mediation Blog by Phyllis G. Pollack Have you ever been asked to imagine during a negotiation or a mediation what the future will look like if you (1) settle...

By Phyllis Pollack