With Patient Approach, FBI Steered Oregon Occupiers Toward Their BATNA

The FBI used “soft” negotiation tactics to induce a surrender.

By on / BATNA

The 41-day armed takeover of the Malheur National Wildlife Refuge in Oregon ended on February 11 when the last occupiers surrendered. Federal authorities in six states also arrested seven others accused of being involved in the occupation, according to the Associated Press. The standoff had begun when Ammon Bundy and his followers took over the refuge and demanded that the government turn over the land to locals.

Over the course of the standoff, there was just one violent altercation between the occupiers and the authorities: On January 26, FBI agents and state troopers stopped Bundy and other occupation leaders after they drove off the refuge; one of the occupiers was shot dead in that confrontation, allegedly after he reached into his jacket pocket for a gun.


Discover how to unleash your power at the bargaining table in this free special report, BATNA Basics: Boost Your Power at the Bargaining Table, from Harvard Law School.


Throughout most of the standoff, by contrast, the FBI used negotiation tactics based on “strategic patience”—that is, waiting for tensions to defuse and avoiding direct confrontation. The occupiers were largely allowed to move freely to and from the wildlife refuge and to air their grievances to the media.

Many observers criticized the FBI for its slow response to the occupation. Yet the end of the standoff suggests that the government’s approach, as described by National Public Radio, achieved its goal of ending the crisis in relative peace. The FBI’s handling of the situation offers lessons to professional negotiators who find themselves dealing with hardball tactics in negotiation or coping with a seemingly intractable conflict.

1. Analyze the other side’s BATNA.

Wise negotiators understand the value of thinking through their BATNA, or best alternative to a negotiated agreement, prior to any significant negotiation. Analyzing what you will do if the current negotiation or conflict-resolution effort fails will help you determine how much you need the other party and may also motivate you to enhance your alternatives away from the table.

Yet negotiators often neglect an equally important step: analyzing the other party’s BATNA. Although finding out what alternatives the other party has can take some detective work, it can be well worth the effort. If you find out that your counterpart has few options, that knowledge can empower you to stand by your demands.

The FBI likely calculated that the protestors were contemplating a couple of different BATNAs in the event their demands were not met, from bringing the conflict to a violent end to surrendering to authorities.

2. Try a soft approach.

Having ruled out the possibility of acceding to the occupiers’ demands, the FBI’s job was to find a way to steer the protestors toward the more peaceful of these two BATNAs—namely, surrendering peacefully.

From earlier and more explosive confrontations with anti-government protestors, including the Ruby Ridge standoff, the FBI had learned the difficult lesson that softer negotiation tactics were more likely to lead to a peaceful resolution.

“You wait it out and you dress down,” FBI special agent Robin Montgomery told NPR. “You don’t need to have a bunch of military paraphernalia, out and about.” This type of “strategic patience” approach helps to defuse tensions and end conflict, the FBI has found.

In addition, the FBI tries to choose a mediator whom protestors will trust to negotiate an end to such standoffs. To engage the Oregon occupiers, the government enlisted Franklin Graham, the conservative son of evangelist Billy Graham, in “softening up the last holdouts over the phone,” according to NPR. Graham reportedly devoted a full week to negotiating via phone with the occupiers, working to bring them “to a point where they were ready to leave of their own volition,” the FBI’s special agent in charge of the standoff, Greg Bretzing, told the media.

The lesson is clear: If you are trying to negotiate your way out of a conflict with someone who doesn’t trust you, consider bringing in someone they do trust (and whom you also trust) to bridge the divide. Such softer negotiating skills and negotiation tactics are typically much more effective than hardball tactics in negotiation.

3. Steer them toward your preferred outcome.

The FBI had an ulterior motive for allowing the occupiers to move freely and speak to the media: this freedom would give the occupiers opportunities to make incriminating statements that could justify their arrest. As NPR notes, “the FBI had given them just enough rope to hang themselves, legally.”

Interestingly, one occupier whom the FBI chose not to arrest during the confrontation outside the refuge on January 26 was Mark McConnell. Although some occupiers later suspected McConnell of being an FBI mole, McConnell said in a video posted on the Internet that he had been released because, unlike others in his group, he had been careful not to be quoted in the media.

Few of us will ever be in the situation of trying to get a counterpart to incriminate himself in the eyes of the law. But there are other negotiating tactics in business that you can use to motivate your counterpart to end the conflict. That could mean encouraging them to meet you halfway by sweetening your offer. It could mean slowing down the pace of a negotiation to make the other side’s BATNA less palatable to them. Or, alternatively, if “no deal” becomes your preference, it could mean steering them toward ending the standoff and amicably parting ways.


Discover how to unleash your power at the bargaining table in this free special report, BATNA Basics: Boost Your Power at the Bargaining Table, from Harvard Law School.


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