art of legislative negotiation 2020 ncsl base camp

NCSL's Curt Stedron, upper left corner, leads a session on legislative negotiation at NCSL Base Camp 2020.

NCSL Base Camp 2020: Deliver, Don’t Deny: The Art of Legislative Negotiation

By Mark Wolf | Sept. 21, 2020 | State Legislatures Magazine

“Everything,” Curt Stedron says, “is a negotiation.”

“If you’re a family, you can’t order a pizza without a negotiation about what’s going on that pizza and in what quantities.”

The (sometimes) delicate art of coming to agreement on which legislative anchovies are going to land on the lawmakers’ crust was the subject of an NCSL Base Camp 2020 session last week.

“A legislature is a constant clash of agendas and goals and objectives,” said Stedron, NCSL’s director of legislative training. “If we’re always negotiating, are we doing it in the best possible way to come up with the most optimal solutions?”

The expectation of haggling is hard-wired into us, Stedron said, illustrated by a clip from Monty Python. He introduced the concept of ZOPA (the Zone of Possible Agreement), in which sellers know what they want and what they’re willing to accept and the buyers would like to get it for free, but also know what they're willing to pay.

There are two main negotiating paradigms, Stedron said. In positional bargaining, the negotiators each assert a position and argue for it alone, viewing each other as opponents (“When I win, you lose”). Interest-based negotiating, however, aims to find overlapping interests (“We are partners and we win or lose together”).

Positional bargaining, he said, incentivizes each side to move their starting positions out as far as possible. Quoting Orlando Battista: “The fellow who says he’ll meet you halfway is usually standing on the dividing line.”

Alternatively, interest-based negotiation looks for creative ways to meet the interests of both parties.

“The spirit,” said Stedron, “is to deliver rather than to deny.” The principle is BATNA (the best alternative to a negotiated arrangement).

Techniques include asking, “What would be wrong with … ?” to find low-cost giveaways from you that are high-value takeaways for them and being able to come up with creative ways to solve entrenched problems.

Stedron offered five tips for legislative negotiation.

  • Expand the pie, create value, add another stakeholder, bring more people. Why? Because it automatically increases the interest pool. Now you have more interests on the table and when you do that you have more options. Stedron said it was best to bring a new stakeholder who aligns closer to your negotiating partner than you. When you get stakeholders seen as being on their side you increase momentum toward a deal. 
  • Don’t ignore the elephant in the room, particularly as it relates to the legislature. Very often the key interest someone cares about has very little to do with the thing you’re negotiating about. People may be thinking about reelection or a leadership position or funding their campaign. If you can deliver something that satisfies one of the things they care about most, you have a much better chance of making a deal.
  • Always put the problem first. Don’t lead with the solution; hold it back a little. Don’t make that your front-facing element. Everybody agrees there’s a problem and you’re already starting to build momentum; your Venn diagrams are overlapping. If you lead with the solution, you’ve already blown all that momentum. Acknowledge the shared interests so the other party feels like a partner and has some ownership about what the solution might be. Change the order in which you divulge information.
  • But what if they’re being a jerk? First, you still wouldn’t be negotiating if either side had the power to unilaterally impose a solution. If you are still talking then clearly both sides want something more. What if they won’t talk to you at all? Find someone they will talk to. Bring a new stakeholder to the table. There’s nothing in negotiation that says there has to be direct interaction. You can find proxies to allow a more healthy transfer of ideas.
  • Relationships are crucial. What if I have no relationship? If you have burned bridges, haven’t cultivated relationships, haven’t invested in relationships, it’s going to be very difficult. You have to have relationships to talk, to ask the why/why questions and empower those important interests. What if we tried this? Tease out those options. You have to have trust in relationships to set those standards for the parameters of the conversation. 

Mark Wolf is editor of the NCSL Blog.

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