Online negotiation has become ubiquitous, as it allows us to negotiate across the miles cheaply and quickly. Yet online negotiation creates special challenges. With email, instant messaging, and text messages, negotiators typically lack visual, verbal, and other sensory cues to interpret how their counterpart is feeling. And while videoconferencing—via Skype, Google Hangouts, and so on—adds many of these cues to the picture, it’s still an imperfect form of online negotiation. Fortunately, recent writing has provided some guidance on how to negotiate online.

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Reading through the Lines

Research on how emotions affect negotiation shows that people are less adept at conveying their emotions via email than they think they are. In a study published in the journal Group Decision and Negotiation, researchers Christoph Laubert (Freie Universität Berlin) and Jennifer Parlamis (University of San Francisco) studied how effective negotiators are at detecting specific emotions conveyed via email, such as empathy, embarrassment, anger, interest, and contempt. In one experiment, two trained data coders who independently studied the same transcripts of email negotiations agreed on which emotions study participants expressed only about 22% of the time.

In another experiment, participants in a negotiation simulation also coded the emotions in the email messages they received; they, too, interpreted their counterparts’ emotions very differently than a trained coder did. “[O]ur research suggests that email has quite a long way to go before it can be used in a way where emotions function as an extra channel for solving problems,” conclude Laubert and Parlamis.

How can we improve our ability to read one another’s emotions in email and other forms of online negotiation? First, rather than assuming a counterpart will read between the lines (“Is this the best you can do?”), strive to state your emotions explicitly (“I’m feeling impatient about our progress”). Second, check in with counterparts regularly to see how they’re feeling: “I got a sense that my last proposal upset you. Is that right?” Third, if possible, meet in person or pick up the phone occasionally for an emotional check-in.

Limitations of Videoconferencing

As compared to email and phone negotiations, videoconferencing is widely perceived as a “rich” medium for online negotiation because it allows people to learn from each other’s visual and verbal cues. But in a chapter in The Negotiator’s Desk Reference (DRI Press, 2017), Creighton University School of Law professor Noam Ebner highlights a number of drawbacks of videoconferencing relative to in-person negotiations—as well as negotiating techniques and skills to help overcome them:

1. Limited visibility. When videoconferencing, we see less of the other person and their environment than we do when negotiating in person, and we also can’t see what’s going on outside the narrow frame. To compensate for such visual deficits, keep your hand gestures within the frame so that your counterpart can see them. In addition, minimize sound and visual distractions on your end as much as possible. To help manage the effects of power in negotiation, you should also make sure the area behind you is neutral and professional, and be sure to dress for business. Finally, resist the urge to check your e-mail or attend to matters offscreen.
2. Technical difficulties. Anyone who videoconferences regularly knows that technical difficulties are par for the course. It’s not unusual to have trouble linking up or to suddenly lose audio and/or video during a meeting. Such glitches may interrupt the flow of a negotiation or leave us feeling irritated, which could keep us from negotiating at our best. Practice using new videoconferencing apps before important meetings, but keep in mind that technical difficulties may still crop up.
3. Privacy and security challenges. When the privacy of a negotiation is paramount, videoconferencing may pose special concerns, notes Ebner. Although the possibility of being secretly recorded is a risk in any type of negotiation, video negotiations may be especially easy for your counterpart—or perhaps some other interested party—to record. In addition, there could be others quietly listening in and perhaps even advising your counterpart offscreen. For this reason, when security is critical but trust is low, you may want to make an extra effort to negotiate in person.

When it comes to capitalizing on the benefits of negotiation in business, online negotiation offers unparalleled convenience, but the potential costs are clear. To manage them, try to combine phone and online negotiation with face-to-face meetings, when possible.

What challenges have you faced in online negotiation and how have you managed them?

Join us in Cambridge on Friday, November 15^th, 2019 for a conference on excellence and innovation in teaching negotiation.

The Teaching Negotiation Resource Center (TNRC) at the inter-university Program on Negotiation at Harvard Law School is pleased to announce that the 2019 Negotiation Pedagogy Conference will take place on Friday, November 15^th, 2019 at Harvard Law School.

If you are a negotiation teacher or trainer looking for new ways to teach negotiation and improve your instructional techniques, join us to learn about important advances in negotiation pedagogy.

Speakers will include:

• Lakshmi Balachandra, Assistant Professor of Entrepreneurship at Babson College.
• Gabriella Blum, Rita E. Hauser Professor of Human Rights and International Humanitarian Law at Harvard Law School.
• Toby Berkman, Senior Associate at the Consensus Building Institute and affiliated faculty at the Program on Negotiation.
• Alain Lempereur, Alan B. Slifka Professor, Director of the Conflict Resolution and Coexistence Program at the Heller School for Social Policy and Management at Brandeis University, and Executive Committee Member of the Program on Negotiation.
• Brian Mandell, Mohammad Kamal Senior Lecturer in Negotiation and Public Policy at the Harvard Kennedy School, and Vice Chair for Executive Education for the Program on Negotiation.
• Melissa Manwaring, Senior Lecturer at Babson College.
• Lawrence Susskind, Ford Foundation Professor of Urban and Environmental Planning at the Massachusetts Institute of Technology (MIT), and Vice Chair of Pedagogy at the Program on Negotiation.
• Bruno Verdini, Lecturer of Urban Planning and Negotiation at the Massachusetts Institute of Technology (MIT).
• Rachel Viscomi, Assistant Clinical Professor of Law at Harvard Law School and Director of the Harvard Negotiation and Mediation Clinic.

This one-day conference will run from approximately 8am to 6pm on Friday November 15th, and is an excellent opportunity to connect with and learn from a wide array of teachers and trainers. The registration fee is $75 per participant, and registration will close on Tuesday, November 5th, 2019. To register, please click below:

Negotiation Pedagogy Conference 2019 – REGISTER NOW 

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TNRC negotiation exercises and teaching materials are designed for educational purposes. They are used in college classroom settings or corporate training settings; used by mediators and facilitators seeking to introduce their clients to a process or issue; and used by individuals who want to enhance their negotiation skills and knowledge.

Negotiation exercises and role-play simulations introduce participants to new negotiation and dispute resolution tools, techniques and strategies. Our videos, books, case studies, and periodicals are also a helpful way of introducing students to key concepts while addressing the theory and practice of negotiation.

Check out all that the TNRC has in store >>

International Committee of the Red Cross (ICRC) president Peter Maurer views negotiation as integral to the ICRC’s mission of providing humanitarian aid to people in conflict zones. A former Swiss minister of foreign affairs and ambassador to the United Nations, Maurer is the ICRC’s chief negotiator and promotes the development of negotiation skills within the ICRC. We spoke to him about the role of negotiation in the ICRC’s mission, as well as what negotiators in other realms can learn from humanitarian negotiation.

Negotiation Briefings: What types of negotiations must the ICRC engage in to do its work?

Peter Maurer: Humanitarian access relies increasingly on the ability of frontline professionals to build trusting relationships with their counterparts and mobilize their support in the delivery of assistance to populations in need. As compared to transactional negotiations, where the exchange of value is the central goal, humanitarian negotiations are primarily driven toward building relationships through successive operational agreements.

The ICRC engages in different types of humanitarian negotiation: Some are more fact based, while others are more normative. When negotiating the terms of the distribution of food in a refugee camp located in a war zone, for example, negotiators may cover the technical aspects of the proposed operation (how many refugees will be served, what their nutritional status is, etc.). Conversely, negotiations may be aimed at reconciling diverging views about applicable norms (such as, What obligations does the host state have to the refugee population? What is the humanitarian organization’s role?). Both types of negotiations tend to take place with those at multiple levels, from field-based authorities (e.g., camp commanders) to local and national authorities to international entities such as the United Nations.

NB: What challenges does humanitarian negotiation pose to the ICRC?

PM: Recurring challenges in frontline humanitarian negotiations include the fragmentation of political authorities in conflict settings, the difficulty of finding the right interlocutors, and the insecurity of local environments. Another growing dilemma is the extent to which humanitarian negotiators should compromise on principles and norms to gain the consent of counterparts and positively impact a humanitarian situation. A compromise in one situation (for example, opting for a general distribution of assistance) can turn into a major liability in another (when the ICRC needs to target its limited assistance to a select group of beneficiaries). Intimidation, pressure, and the increased politicization of humanitarian assistance remain regular challenges when the safety and security of humanitarians are at risk.

NB: What role do you play as the ICRC’s lead negotiator?

PM: My role as the ICRC president is to support the negotiation processes taking place in field operations through a confidential dialogue with global leaders. I regularly engage with high-level government representatives, drawing their attention to the humanitarian implications of national security policies and military strategies in specific contexts, and looking for practical solutions in sync with ICRC’s field operations. In this context, my role is to discuss how to maintain national security objectives while ensuring respect for fundamental rules of humanity. This role has led me to engage on thematic issues, such as the treatment of detained foreign fighters and their families, as well as specific cases, such as humanitarian access to Yemen or Venezuela. Overall, the ICRC president needs to be the voice of the voiceless on the international scene.

NB: In 2016, you helped found the Centre of Competence on Humanitarian Negotiation (CCHN), which aims to help negotiators from five leading humanitarian organizations, including the ICRC, learn from one another. What are your goals for the CCHN?

PM: To build agencies’ negotiation capability in challenging circumstances, the CCHN facilitates the capture, analysis, and sharing of frontline experiences of humanitarian negotiators from different agencies, in addition to developing planning tools to enable critical reflection on negotiation strategies and tactics in complex environments. As of mid-2019, more than 1,000 frontline humanitarian practitioners worldwide have taken part in CCHN’s peer-to-peer activities and are contributing to a community of practice across field operations. Participants engage in informal, confidential exchanges to learn common approaches to complex negotiations and assist others.

NB: If you could give one piece of advice to professional negotiators, what would it be?

PM: Our experiences and reflections in recent years have highlighted the emergence of a new “ethos” of negotiation in our increasingly divided world. Like mediators, negotiators should increasingly view themselves as advisers to a relationship between two or more parties, facilitating the exploration of new areas of agreement. Rather than feeling isolated and pressured by competitors, negotiators should consider expanding their peer networks and comparing their experiences. Today’s challenges are beyond the ability of any individual negotiator. We need to work together to build our ability to address the need for reconciliation in every aspect of our tumultuous economic and social lives.

In the 1990s, U.S. drug manufacturers unwittingly set a national crisis in motion when they began marketing new and highly addictive prescription opioid medications for the treatment of pain. Between 1999 and 2017, about 400,000 Americans died from a drug overdose involving an opioid, including both prescription and illegal drugs. By 2015, the opioid crisis had cost the nation more than $500 billion in lost productivity and taxpayer funds spent on health care, law enforcement, care for children of addicts, and other costs, according to a White House Council of Economic Advisers report.

Along with several other drug manufacturers, Stamford, Conn.–based pharmaceutical firm Purdue Pharma was widely blamed for giving rise to the epidemic. For years, critics say, the company aggressively marketed its extended-release opioid, OxyContin, while downplaying its addictive properties. OxyContin has had more than $35 billion in sales since its launch in 1996, according to the Wall Street Journal.

By 2018, all but two U.S. states and about 2,300 local and tribal governments and other entities, including unions and hospitals, had taken legal action against Purdue Pharma for its role in the opioid epidemic. Founded in 1952, Purdue Pharma is owned by the Sackler family; some family members have worked for the company or served on its board. Many of the suits also accuse Sackler family members of misleading the public regarding their products and draining money from the company, according to CNBC.

The Sacklers have said any withdrawals they made from Purdue were appropriate and that they were not actively involved in managing the marketing of OxyContin, claims disputed by states attorneys and plaintiffs’ lawyers. In 2007, Purdue pled guilty to felony charges and agreed to stop misrepresenting the addictive qualities of OxyContin. Yet after collecting $400 million in profits from Purdue during the first nine months of 2013, the Sacklers, facing lower fourth-quarter profits, supported a plan for OxyContin sales representatives to target “high- prescribing” doctors, according to a Massachusetts attorney general lawsuit.

New York attorney general Letitia James said that with the settlement, the Sacklers are “attempting to evade responsibility and lowball millions of victims of the opioid crisis.”

Bloomberg estimates the Sackler family’s net worth at about $13 billion, but some critics believe it is much larger. Several U.S. states accuse the family of hiding funds taken from Purdue in a complex web of companies and trusts all over the world in order to shield their money from plaintiffs and potential bankruptcy proceedings, CNBC reports. Facing declining sales in recent years, Purdue has laid off employees and sold one of its manufacturing plants.

Opening moves

A federal trial targeting Purdue and many other opioid drugmakers and distributors was set to begin on October 21, 2019, in Cleveland. In 2018, the federal judge overseeing the trial, Dan A. Polster, persuaded the approximately 2,300 plaintiffs to try to jointly negotiate a settlement with Purdue. Attorneys general from nearly two dozen states were brought into the talks as well, though the states are not parties to the federal litigation. The goal: Negotiate compensation for taxpayer funds spent on medical treatment, social services, and other costs resulting from OxyContin addiction and overdoses.

Unfolding over the course of a year, settlement talks largely focused on how much the Sacklers should pay plaintiffs; whether Purdue, which still manufactures OxyContin (redesigned to be more difficult to abuse), should declare bankruptcy or stay in business; and what to do with the Sacklers’ global pharmaceutical business, Mundipharma.

The plaintiffs first demanded $6 billion in cash from the Sacklers; the family’s representatives called that figure a nonstarter. At one point, Purdue reportedly offered to deliver part of its payment in the form of the overdose-reversing drug naloxone; the plaintiffs flatly refused, the Associated Press reports. Some states attorneys wanted the Sacklers to sell Mundipharma immediately and turn over the profits to the plaintiffs and also make a $1.5 billion up-front payment. The Sacklers rejected that proposal, saying they wanted to keep selling OxyContin and other drugs abroad for up to seven more years.

A draft deal

On August 27, 2019, NBC and Reuters reported that the Sacklers were considering settling the 2,300 lawsuits for up to $10 billion to $12 billion. Rather than entering into bankruptcy protection, Purdue would be restructured as a for-profit “public benefit trust corporation” with the goal of paying plaintiffs $7 billion to $8 billion through drug sales. The Sacklers would pay $3 billion in cash over seven years, plus an additional $1.5 billion from the possible sale of Mundipharma. In return, plaintiffs would drop their lawsuits against Purdue and the Sacklers.

After the proposed settlement leaked to the press, attorneys general of wealthier states, including New York, Massachusetts, and Connecticut, excoriated it as far too weak. The predicted payouts would cover only a small fraction of the costs of the opioid epidemic, they said. These states, which could afford to investigate the Sacklers on their own, wanted the family to pay more and for Purdue to get out of the opioid business. Many of the local governments suing Purdue, however, seemed more willing to settle.

Looming over the tentative deal was the threat that the Sacklers would take Purdue into bankruptcy protection on their own, which would likely remove it from the trial. Such a move could force plaintiffs to compete with one another and the drug company’s creditors for its remaining assets, and could also shield the family’s personal wealth from creditors.

Settling for something

The news leaks set off another round of negotiations. Pressed by the states to guarantee that the Sacklers would personally pay $4.5 billion, Purdue refused and failed to make a counteroffer, according to the attorneys general of Tennessee and North Carolina.

On September 8, the Associated Press reported that Purdue was walking away from the table and was likely to file for bankruptcy, which would effectively remove it from the Cleveland trial.

“Now I’ll sue the Sacklers personally,” Pennsylvania attorney general Josh Shapiro tweeted. Such threats, plus the fact that Judge Polster had issued tough pretrial rulings against Purdue and other drugmakers, likely motivated the Sacklers to return to the table.

On September 11, Purdue, the Sacklers, the 2,300 plaintiffs, 24 states, and five U.S. territories reached a settlement that Purdue valued at $10 billion, the New York Times reports. Under the terms of the deal, Purdue would file for Chapter 11 bankruptcy and be dissolved. A new company, not owned by the Sacklers but managed by a group of trustees, would then be formed, with its profits used to pay plaintiffs. Whether that company would sell OxyContin remained an open question, lead plaintiffs’ attorney Joe Rice told NPR. The Sackler family, without admitting wrongdoing, agreed to pay $3 billion in cash over seven years and also to contribute proceeds from the sale of Mundipharma for an estimated $1.5 billion. Purdue also promised to donate drugs for addiction treatment and overdose reversal.

At least 10 U.S. states, led by Massachusetts and New York, rejected the deal, saying Purdue’s valuation of its worth was speculative and that proceeds could take years to materialize, the Times reports. These states have sued the Sacklers, or plan to, and vowed to track down the family’s fortune. New York attorney general Letitia James said that with the settlement, the Sacklers are “attempting to evade responsibility and lowball millions of victims of the opioid crisis,” according to NPR. The State of Massachusetts said it would challenge Purdue’s bankruptcy filing, which it set into motion on September 15.

“Nobody walks away from a tough negotiation feeling like a winner,” plaintiffs’ lawyer Paul Geller told the Times. Two days after the settlement was revealed, the Times reported that James’s office had tracked about $1 billion in wire transfers by the Sackler family, including through Swiss bank accounts—possible evidence that the family tried to shield wealth from its accusers.

Holding parties accountable

Getting individuals and organizations to compensate you for perceived wrongdoing is rarely easy. These three guidelines can help:

• 1. Consider joining forces. When you team up with other parties in your situation, you may gain the muscle you need to convince alleged wrongdoers to negotiate with you. As your team expands, be aware that various factions will have different interests that need to be negotiated and managed internally. More powerful parties may be able to push through tougher deals, while the less powerful may be more attuned to the risk of impasse.
• 2. Strive for a settlement. Though the threat or prospect of a lawsuit can be a powerful tool, you may be able to reach a more creative deal by negotiating out of court, saving time and money in the process. Negotiations typically give disputants a greater opportunity to make tradeoffs across the issues that matter most to them.
• 3. Determine your ethical red line. When negotiating with those we believe have wronged us, we may face difficult ethical questions, such as whether to accept profits from actions that have harmed us or others. Take time before and during the negotiation process to set your ethical red line—what you are and aren’t willing to accept.

In the 1990s, U.S. drug manufacturers unwittingly set a national crisis in motion when they began marketing new and highly addictive prescription opioid medications for the treatment of pain. Between 1999 and 2017, about 400,000 Americans died from a drug overdose involving an opioid, including both prescription and illegal drugs. By 2015, the opioid crisis had cost the nation more than $500 billion in lost productivity and taxpayer funds spent on health care, law enforcement, care for children of addicts, and other costs, according to a White House Council of Economic Advisers report.

Along with several other drug manufacturers, Stamford, Conn.–based pharmaceutical firm Purdue Pharma was widely blamed for giving rise to the epidemic. For years, critics say, the company aggressively marketed its extended-release opioid, OxyContin, while downplaying its addictive properties. OxyContin has had more than $35 billion in sales since its launch in 1996, according to the Wall Street Journal.

By 2018, all but two U.S. states and about 2,300 local and tribal governments and other entities, including unions and hospitals, had taken legal action against Purdue Pharma for its role in the opioid epidemic. Founded in 1952, Purdue Pharma is owned by the Sackler family; some family members have worked for the company or served on its board. Many of the suits also accuse Sackler family members of misleading the public regarding their products and draining money from the company, according to CNBC.

The Sacklers have said any withdrawals they made from Purdue were appropriate and that they were not actively involved in managing the marketing of OxyContin, claims disputed by states attorneys and plaintiffs’ lawyers. In 2007, Purdue pled guilty to felony charges and agreed to stop misrepresenting the addictive qualities of OxyContin. Yet after collecting $400 million in profits from Purdue during the first nine months of 2013, the Sacklers, facing lower fourth-quarter profits, supported a plan for OxyContin sales representatives to target “high- prescribing” doctors, according to a Massachusetts attorney general lawsuit.

New York attorney general Letitia James said that with the settlement, the Sacklers are “attempting to evade responsibility and lowball millions of victims of the opioid crisis.”

Bloomberg estimates the Sackler family’s net worth at about $13 billion, but some critics believe it is much larger. Several U.S. states accuse the family of hiding funds taken from Purdue in a complex web of companies and trusts all over the world in order to shield their money from plaintiffs and potential bankruptcy proceedings, CNBC reports. Facing declining sales in recent years, Purdue has laid off employees and sold one of its manufacturing plants.

Opening moves

A federal trial targeting Purdue and many other opioid drugmakers and distributors was set to begin on October 21, 2019, in Cleveland. In 2018, the federal judge overseeing the trial, Dan A. Polster, persuaded the approximately 2,300 plaintiffs to try to jointly negotiate a settlement with Purdue. Attorneys general from nearly two dozen states were brought into the talks as well, though the states are not parties to the federal litigation. The goal: Negotiate compensation for taxpayer funds spent on medical treatment, social services, and other costs resulting from OxyContin addiction and overdoses.

Unfolding over the course of a year, settlement talks largely focused on how much the Sacklers should pay plaintiffs; whether Purdue, which still manufactures OxyContin (redesigned to be more difficult to abuse), should declare bankruptcy or stay in business; and what to do with the Sacklers’ global pharmaceutical business, Mundipharma.

The plaintiffs first demanded $6 billion in cash from the Sacklers; the family’s representatives called that figure a nonstarter. At one point, Purdue reportedly offered to deliver part of its payment in the form of the overdose-reversing drug naloxone; the plaintiffs flatly refused, the Associated Press reports. Some states attorneys wanted the Sacklers to sell Mundipharma immediately and turn over the profits to the plaintiffs and also make a $1.5 billion up-front payment. The Sacklers rejected that proposal, saying they wanted to keep selling OxyContin and other drugs abroad for up to seven more years.

A draft deal

On August 27, 2019, NBC and Reuters reported that the Sacklers were considering settling the 2,300 lawsuits for up to $10 billion to $12 billion. Rather than entering into bankruptcy protection, Purdue would be restructured as a for-profit “public benefit trust corporation” with the goal of paying plaintiffs $7 billion to $8 billion through drug sales. The Sacklers would pay $3 billion in cash over seven years, plus an additional $1.5 billion from the possible sale of Mundipharma. In return, plaintiffs would drop their lawsuits against Purdue and the Sacklers.

After the proposed settlement leaked to the press, attorneys general of wealthier states, including New York, Massachusetts, and Connecticut, excoriated it as far too weak. The predicted payouts would cover only a small fraction of the costs of the opioid epidemic, they said. These states, which could afford to investigate the Sacklers on their own, wanted the family to pay more and for Purdue to get out of the opioid business. Many of the local governments suing Purdue, however, seemed more willing to settle.

Looming over the tentative deal was the threat that the Sacklers would take Purdue into bankruptcy protection on their own, which would likely remove it from the trial. Such a move could force plaintiffs to compete with one another and the drug company’s creditors for its remaining assets, and could also shield the family’s personal wealth from creditors.

Settling for something

The news leaks set off another round of negotiations. Pressed by the states to guarantee that the Sacklers would personally pay $4.5 billion, Purdue refused and failed to make a counteroffer, according to the attorneys general of Tennessee and North Carolina.

On September 8, the Associated Press reported that Purdue was walking away from the table and was likely to file for bankruptcy, which would effectively remove it from the Cleveland trial.

“Now I’ll sue the Sacklers personally,” Pennsylvania attorney general Josh Shapiro tweeted. Such threats, plus the fact that Judge Polster had issued tough pretrial rulings against Purdue and other drugmakers, likely motivated the Sacklers to return to the table.

On September 11, Purdue, the Sacklers, the 2,300 plaintiffs, 24 states, and five U.S. territories reached a settlement that Purdue valued at $10 billion, the New York Times reports. Under the terms of the deal, Purdue would file for Chapter 11 bankruptcy and be dissolved. A new company, not owned by the Sacklers but managed by a group of trustees, would then be formed, with its profits used to pay plaintiffs. Whether that company would sell OxyContin remained an open question, lead plaintiffs’ attorney Joe Rice told NPR. The Sackler family, without admitting wrongdoing, agreed to pay $3 billion in cash over seven years and also to contribute proceeds from the sale of Mundipharma for an estimated $1.5 billion. Purdue also promised to donate drugs for addiction treatment and overdose reversal.

At least 10 U.S. states, led by Massachusetts and New York, rejected the deal, saying Purdue’s valuation of its worth was speculative and that proceeds could take years to materialize, the Times reports. These states have sued the Sacklers, or plan to, and vowed to track down the family’s fortune. New York attorney general Letitia James said that with the settlement, the Sacklers are “attempting to evade responsibility and lowball millions of victims of the opioid crisis,” according to NPR. The State of Massachusetts said it would challenge Purdue’s bankruptcy filing, which it set into motion on September 15.

“Nobody walks away from a tough negotiation feeling like a winner,” plaintiffs’ lawyer Paul Geller told the Times. Two days after the settlement was revealed, the Times reported that James’s office had tracked about $1 billion in wire transfers by the Sackler family, including through Swiss bank accounts—possible evidence that the family tried to shield wealth from its accusers.

Holding parties accountable

Getting individuals and organizations to compensate you for perceived wrongdoing is rarely easy. These three guidelines can help:

• 1. Consider joining forces. When you team up with other parties in your situation, you may gain the muscle you need to convince alleged wrongdoers to negotiate with you. As your team expands, be aware that various factions will have different interests that need to be negotiated and managed internally. More powerful parties may be able to push through tougher deals, while the less powerful may be more attuned to the risk of impasse.
• 2. Strive for a settlement. Though the threat or prospect of a lawsuit can be a powerful tool, you may be able to reach a more creative deal by negotiating out of court, saving time and money in the process. Negotiations typically give disputants a greater opportunity to make tradeoffs across the issues that matter most to them.
• 3. Determine your ethical red line. When negotiating with those we believe have wronged us, we may face difficult ethical questions, such as whether to accept profits from actions that have harmed us or others. Take time before and during the negotiation process to set your ethical red line—what you are and aren’t willing to accept.

Asking questions can be a powerful way to root out information and deflect questions you don’t want to answer, as we discussed in last month’s cover story. In a new paper published in the Negotiation Journal, University of Amsterdam researchers Diyan Nikolov Grigorov and A. Francisca Snoeck Henkemans suggest that a particular kind of question may be especially useful when delivering offers and proposals in negotiation: hypothetical ones.

In negotiation, hypothetical questions include a condition or presupposition that encourages the listener to take your point of view, such as “Would you be able to go any lower if we waived our delivery fee?” or “If we moved back the closing date, would you be willing to pay for the house to be painted?”

Presenting a proposal or offer in the form of a hypothetical question can make it more persuasive and palatable, Grigorov and Snoeck Henkemans suggest. Because the hypothetical implies an idea that could be easily revoked or disavowed, it may allow us to negotiate aggressively while still being perceived as cooperative and flexible.

To illustrate the potential power of hypothetical questions in negotiation, the researchers analyzed interactions in the British reality television show Dragons’ Den. In the show, entrepreneurs take turns pitching their ideas to a panel of investors. If an investor is interested in a project, he or she may choose to negotiate funding with the entrepreneur (as in the show’s American version, Shark Tank).

In one episode, for example, business partners Aidan Quinn and Gemma Roe were seeking an investment of 75,000 pounds in exchange for 15% equity in their eco-home construction company. The only interested investor, Theo Paphitis, initially demanded 45% of the business in exchange for the 75,000 pounds. After some haggling, he made a “final offer” of 40% if the business showed a certain amount of profit. Quinn then responded, “What if we meet all our targets within 12 months. We give you 50% of your investment back, and . . . you reduce your shareholding to 30%?” Paphitis agreed to the deal.

With his hypothetical (“What if . . . ?”), Quinn implicitly proposed that it would be more beneficial for Paphitis to obtain 30% of the business for 37,500 pounds than 40% of the business for 75,000 pounds, the researchers note. The deal was enabled by the “What if . . . ?” expressed in Quinn’s question—the company’s ability to meet its targets within 12 months.

Negotiators are sometimes suspicious of counterparts’ attempts to create value through tradeoffs, fearing they’re trying to take advantage. When we present novel proposals in the form of a hypothetical question, they may seem less demanding. What if your counterpart balks at the hypothetical you’ve proposed? Remind her that you were simply posing a question, and redirect the conversation.

Resource: “Hypothetical Questions as Strategic Devices in Negotiation,” by Diyan Nikolov Grigorov and A. Francisca Snoeck Henkemans. Negotiation Journal, July 2019.

To get what we want, we sometimes ask more powerful parties to intervene on our behalf. But what happens if they go off course? That’s the predicament automakers in the U.S. market find themselves in after asking the Trump administration to loosen fuel-economy standards for their vehicles.

Pedal to the metal

When Donald Trump became president in 2017, the CEOs of the nation’s Big Three auto manufacturers—Ford, General Motors, and Chrysler—visited the Oval Office with a request. Back in 2012, they had supported President Barack Obama’s new regulations aimed at significantly reducing greenhouse-gas emissions, which required them to nearly double the average fuel economy of new cars and trucks to 54.5 miles per gallon (mpg) by 2025. But the standards were proving difficult to meet, they told Trump, given growing consumer demand for sport utility vehicles and pickup trucks. They asked the new president to loosen the Obama-era rules, as Coral Davenport and Hiroko Tabuchi report in the New York Times.

The automakers got their wish, and then some: In 2018, the administration unveiled a plan to roll back fuel-economy standards for new vehicles to about 37 mpg on average and also to revoke the legal authority of U.S. states to impose their own emissions standards.

The companies were dismayed: A complete rollback of federal emissions rules would put them at risk of falling behind in the global race to build more fuel-efficient vehicles, according to the Times. Even worse, the State of California—which, under the 1970 Clean Air Act, has the authority to set its own pollution standards—might choose to stick with the Obama-era rules, followed by other states. If two different sets of emissions rules took root in the nation, car companies could end up having to build two separate vehicle lines for the U.S. market.

Trump’s plan appeared to be an opening gambit for negotiations with California regulators. But in February 2019, the White House announced it had reached an impasse with the state. California said it would keep enforcing the Obama-era standards and sue the federal government to retain its authority to limit emissions. Thirteen other states vowed to follow California’s lead.

At a crossroads

In June 2019, 17 of the world’s largest automakers, including Ford, General Motors, Toyota, and Volvo, wrote to Trump urging him to renegotiate with California to help avoid “an extended period of litigation and instability.” They also asked California governor Gavin Newsom to negotiate a standard “midway” between the Obama rules and Trump’s proposed rollback, according to the Times.

With no sign of a détente between California and the federal government, four car companies—Ford, Volkswagen of America, Honda, and BMW, which together comprise about 30% of the U.S. auto market—soon entered into secret talks with California regulators. They reached an agreement to lower the current Obama rule from 54.4 to 51 mpg—well above the White House’s 37 mpg plan—while giving automakers other ways to meet fuel-economy standards, such as implementing fuel-saving technologies. In a joint statement, the automakers said the deal with California would provide “much-needed regulatory certainty” and allow them to produce “a single national fleet, avoiding a patchwork of regulations.”

Governor Newsom, a longtime Trump opponent, said the number of automakers involved in the negotiations had been limited to ensure secrecy and improve the odds of agreement but that he was confident other companies would sign on, the Times reports. In siding with California over the president, the automakers knew they risked antagonizing Trump, who could punish them by slapping tariffs on cars and components they produced abroad.

Road rage

Indeed, the president was “enraged” by the agreement, which his administration characterized as a “PR stunt,” according to the Times. While the automakers’ talks with California regulators had unfolded quickly, the president’s rollback initiative reportedly had stalled. Several senior officials who had spearheaded the project had exited the administration, leaving an inexperienced young aide in charge of the plan, the Times reports.

The less stringent emissions rules were also proving difficult to justify on technical and scientific grounds, according to Environmental Protection Agency (EPA) and Transportation Department staff members. And Consumer Reports concluded U.S. drivers would pay an average of $3,300 more per vehicle (in car prices and gasoline) up until 2035 if the rollback went through.

The Trump administration was in the unusual position of fighting on behalf of automakers for changes they didn’t want. But rather than backing off, the administration doubled down.

Staying the course

Aware that the rollback would be dead on arrival if more automakers sided with California, the White House summoned leaders of Toyota, Fiat Chrysler, and General Motors to Washington, D.C., and urged them to stick by the president. Executives from one of the companies told the Times it would join the California agreement nonetheless. Mercedes-Benz also said it would disregard the Trump plan. Yet several Japanese and European automakers avoided allying with California for fear Trump would follow through on a past threat to impose 25% tariffs on imported cars on national-security grounds, the Wall Street Journal reports.

Then, in early September, the U.S. Justice Department opened an antitrust inquiry into the four automakers that had negotiated a deal with California on the grounds that their agreement would limit the types of cars available to consumers. In addition, EPA and Transportation Department lawyers warned the State of California that its deal “appears to be inconsistent with federal law,” an argument federal courts have rejected in the past. The government’s aggressive pushback reportedly motivated the German government to advise Mercedes-Benz not to sign on to the California pact for fear of retaliation from Trump.

Running on empty

With fuel-economy standards gummed up in lawsuits, the auto industry faces uncertainty regarding the types of vehicles it should produce—the opposite of what leaders had hoped for when they brought their initial request to Trump.

The mess suggests the following broader negotiation lessons:

• Be careful what you wish for. When asking counterparts to side with you, remember that their personal agendas and perceptions could lead them to conclusions that clash with yours and to actions you dislike. Try to get on the same page from the start by discussing in detail what each party values and why.
• Ward off rebellion. In negotiations involving multiple parties, anticipate that negotiators who are unhappy with the terms of an agreement could splinter off and reach a side deal. Painstaking consensus building that accounts for everyone’s interests is typically needed to hold together fractious factions.
• Start small. To further minimize the odds of a multiparty negotiation falling apart, you might consider limiting initial talks to a small number of participants, when possible. If you reach a great deal, other parties may be interested in signing on.
• Know when to back down. Negotiators are often afraid to revert from their previously stated positions for fear of losing face. But you’re more likely to garner respect than scorn when you have the courage to change your mind.

To get what we want, we sometimes ask more powerful parties to intervene on our behalf. But what happens if they go off course? That’s the predicament automakers in the U.S. market find themselves in after asking the Trump administration to loosen fuel-economy standards for their vehicles.

Pedal to the metal

When Donald Trump became president in 2017, the CEOs of the nation’s Big Three auto manufacturers—Ford, General Motors, and Chrysler—visited the Oval Office with a request. Back in 2012, they had supported President Barack Obama’s new regulations aimed at significantly reducing greenhouse-gas emissions, which required them to nearly double the average fuel economy of new cars and trucks to 54.5 miles per gallon (mpg) by 2025. But the standards were proving difficult to meet, they told Trump, given growing consumer demand for sport utility vehicles and pickup trucks. They asked the new president to loosen the Obama-era rules, as Coral Davenport and Hiroko Tabuchi report in the New York Times.

The automakers got their wish, and then some: In 2018, the administration unveiled a plan to roll back fuel-economy standards for new vehicles to about 37 mpg on average and also to revoke the legal authority of U.S. states to impose their own emissions standards.

The companies were dismayed: A complete rollback of federal emissions rules would put them at risk of falling behind in the global race to build more fuel-efficient vehicles, according to the Times. Even worse, the State of California—which, under the 1970 Clean Air Act, has the authority to set its own pollution standards—might choose to stick with the Obama-era rules, followed by other states. If two different sets of emissions rules took root in the nation, car companies could end up having to build two separate vehicle lines for the U.S. market.

Trump’s plan appeared to be an opening gambit for negotiations with California regulators. But in February 2019, the White House announced it had reached an impasse with the state. California said it would keep enforcing the Obama-era standards and sue the federal government to retain its authority to limit emissions. Thirteen other states vowed to follow California’s lead.

At a crossroads

In June 2019, 17 of the world’s largest automakers, including Ford, General Motors, Toyota, and Volvo, wrote to Trump urging him to renegotiate with California to help avoid “an extended period of litigation and instability.” They also asked California governor Gavin Newsom to negotiate a standard “midway” between the Obama rules and Trump’s proposed rollback, according to the Times.

With no sign of a détente between California and the federal government, four car companies—Ford, Volkswagen of America, Honda, and BMW, which together comprise about 30% of the U.S. auto market—soon entered into secret talks with California regulators. They reached an agreement to lower the current Obama rule from 54.4 to 51 mpg—well above the White House’s 37 mpg plan—while giving automakers other ways to meet fuel-economy standards, such as implementing fuel-saving technologies. In a joint statement, the automakers said the deal with California would provide “much-needed regulatory certainty” and allow them to produce “a single national fleet, avoiding a patchwork of regulations.”

Governor Newsom, a longtime Trump opponent, said the number of automakers involved in the negotiations had been limited to ensure secrecy and improve the odds of agreement but that he was confident other companies would sign on, the Times reports. In siding with California over the president, the automakers knew they risked antagonizing Trump, who could punish them by slapping tariffs on cars and components they produced abroad.

Road rage

Indeed, the president was “enraged” by the agreement, which his administration characterized as a “PR stunt,” according to the Times. While the automakers’ talks with California regulators had unfolded quickly, the president’s rollback initiative reportedly had stalled. Several senior officials who had spearheaded the project had exited the administration, leaving an inexperienced young aide in charge of the plan, the Times reports.

The less stringent emissions rules were also proving difficult to justify on technical and scientific grounds, according to Environmental Protection Agency (EPA) and Transportation Department staff members. And Consumer Reports concluded U.S. drivers would pay an average of $3,300 more per vehicle (in car prices and gasoline) up until 2035 if the rollback went through.

The Trump administration was in the unusual position of fighting on behalf of automakers for changes they didn’t want. But rather than backing off, the administration doubled down.

Staying the course

Aware that the rollback would be dead on arrival if more automakers sided with California, the White House summoned leaders of Toyota, Fiat Chrysler, and General Motors to Washington, D.C., and urged them to stick by the president. Executives from one of the companies told the Times it would join the California agreement nonetheless. Mercedes-Benz also said it would disregard the Trump plan. Yet several Japanese and European automakers avoided allying with California for fear Trump would follow through on a past threat to impose 25% tariffs on imported cars on national-security grounds, the Wall Street Journal reports.

Then, in early September, the U.S. Justice Department opened an antitrust inquiry into the four automakers that had negotiated a deal with California on the grounds that their agreement would limit the types of cars available to consumers. In addition, EPA and Transportation Department lawyers warned the State of California that its deal “appears to be inconsistent with federal law,” an argument federal courts have rejected in the past. The government’s aggressive pushback reportedly motivated the German government to advise Mercedes-Benz not to sign on to the California pact for fear of retaliation from Trump.

Running on empty

With fuel-economy standards gummed up in lawsuits, the auto industry faces uncertainty regarding the types of vehicles it should produce—the opposite of what leaders had hoped for when they brought their initial request to Trump.

The mess suggests the following broader negotiation lessons:

• Be careful what you wish for. When asking counterparts to side with you, remember that their personal agendas and perceptions could lead them to conclusions that clash with yours and to actions you dislike. Try to get on the same page from the start by discussing in detail what each party values and why.
• Ward off rebellion. In negotiations involving multiple parties, anticipate that negotiators who are unhappy with the terms of an agreement could splinter off and reach a side deal. Painstaking consensus building that accounts for everyone’s interests is typically needed to hold together fractious factions.
• Start small. To further minimize the odds of a multiparty negotiation falling apart, you might consider limiting initial talks to a small number of participants, when possible. If you reach a great deal, other parties may be interested in signing on.
• Know when to back down. Negotiators are often afraid to revert from their previously stated positions for fear of losing face. But you’re more likely to garner respect than scorn when you have the courage to change your mind.

For decades, the Colorado River has been in trouble. The river supplies water to 40 million people and five million acres of farmland in seven U.S. states and Mexico. But following 19 years of drought and population growth, the water levels of the river’s largest reservoirs, Lake Mead and Lake Powell, have sunk to record lows. If Lake Mead continues to be depleted, it risks reaching a “dead pool” stage where the water will be trapped below the gates that let it out.

Back in 2007, reacting to the early years of drought, the seven states served by the river— Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming—negotiated a 20-year plan in which they voluntarily agreed to use less water to preserve lakes Powell and Mead. But their agreement, the Drought Contingency Plan, has failed to keep up with population growth and what some scientists who study the river now refer to not as drought but aridification—long-term drying hastened by climate change and overuse.

Several years ago, the seven states returned to the negotiating table, aiming to agree to more stringent cuts to water use to boost the reservoirs’ long-term supply. They had a strong incentive to reach agreement: If they failed to negotiate a joint plan by the end of 2018, the federal Bureau of Reclamation threatened to take over management of the river’s water.

The Colorado River crisis reveals a fundamental human flaw: We focus so much on meeting our immediate desires that we overlook future needs. Undersaving for retirement, squandering natural resources, and failing to prepare for climate change are all unfortunate consequences of our chronic tendency to privilege present concerns over future ones.

Factoring long-term concerns into our decisions and negotiations becomes all the more difficult when we’re competing with other parties for scarce resources. When fishing fleets in a given area compete to catch as many fish as possible, for example, depletion of the seas is the inevitable result. Ecologist Garrett Hardin called this type of social dilemma “the tragedy of the commons.” Each group has short-term incentives to grab as much of the scarce resource as it can. When all groups behave in this self-interested manner, everyone suffers in the long term.

Our decisions are also impaired by our self-serving judgments of what would constitute a “fair” agreement—thatis, we make egocentric justifications for why we deserve more than others. Water managers of the Colorado River in different states, for instance, have clashed on who should make the greatest sacrifices, and cities and farmers have accused each other of using too much water. Overoptimism—the assumption that things will work out, somehow or other—also keeps us from making responsible decisions. “Historically, we’ve always said, ‘Well, next year will be better,’” Eric Kuhn, former general manager of the Colorado River District water agency, told NPR. “And that’s the easy way out.”

But these all-too-human barriers to sustainable decision making are not insurmountable. The seven states charged with renegotiating their Drought Contingency Plan recently reached an agreement that, while just a start, could set the groundwork needed for effective long-term solutions.

Taking the plunge

As the multistate negotiations began, the goal for the states in the Colorado River’s Upper Basin—Colorado, New Mexico, Utah, and Wyoming—was to keep Lake Powell above a target level to allow water to continue to be sent to Lake Mead. The Lower Basin states of Arizona, California, and Nevada were tasked with agreeing on new water-usage cuts and creating new incentives for water conservation for Lake Mead.

By late 2018, water authorities in Mexico and five of the states had reached agreements. Arizona and California needed more time.

California hit a roadblock when the board of its Imperial Irrigation District (IID), the largest user of Colorado River water, said in early 2018 that it wouldn’t sign on to a statewide deal unless it received $200 million in federal funds to manage the declining Salton Sea, which is part of the broader Colorado River system outside Palm Springs. Created accidentally in 1905 when the Colorado River breached its levees and flowed into a dry lake bed, the sea has grown increasingly saline and polluted, posing threats to public health. Without the IID’s support, it looked like California might not be able to sign on to the deal. But then a novel solution arose: Another California water agency agreed to take on the burden of further cuts, allowing the state to sign on. The IID later reached a separate deal with the State of California to mitigate the Salton Sea’s environmental and health hazards.

Arizona was hampered by the fact that it faced the steepest cuts to water use and was also the only state that needed to win the support of its legislature. Agricultural interests in the state balked at agreeing to significant cuts but ultimately agreed to do so in exchange for funding to help them switch from river water to groundwater.

Nevada, by comparison, was prepared to easily absorb new cuts to water use thanks to a pumping system it had constructed, with some foresight, to access the Colorado River at low elevations. As a result, Nevada approached the negotiations with relative neutrality and ended up playing the role of “Switzerland” in a dispute between Upper and Lower Basin states, according to Southern Nevada Water Authority general manager John Entsminger. Under the 1922 Colorado River Compact, Upper Basin states were entitled to use more water than Lower Basin states but were obligated to send conserved water to Lake Mead to address its chronic depletion, according to the Denver Post. That created tensions between the two regions. Nevada helped bridge the divide by negotiating for Upper Basin states to be able to bank their conserved water in Lake Powell without sending it to Lake Mead, the Independent reports.

Going with the flow

In the end, the states were able to celebrate an agreement—and breathe a sigh of relief. “Instead of balkanizing into fractured state interest groups, we’re all working together to control our own destiny,” James Eklund, the attorney who represented Colorado in the negotiations, told the Denver Post.

Yet all parties involved are aware that the revised Drought Contingency Plan is only a short-term fix. Next year, water managers will launch negotiations to come up with a long-term plan for the Colorado River beyond 2026. As the river faces even more pressure from changing weather conditions and population growth, negotiations will become more challenging.

Their recent breakthrough has left some water managers feeling hopeful that they can sustain their cooperative spirit. “Over the last five to 10 years, what I’ve noticed as a positive is [that] those tribalistic instincts seem to be going away,” Shane Leonard, general manager of the Roosevelt Water Conservation District in central Arizona, told Cronkite News. “They’re definitely still there. But they’re not as hard as they used to be.”

“We haven’t seen the catastrophe that people thought would happen,” University of New Mexico Water Resources Program director John Fleck told the Independent. “We’ve seen voluntary measures, communities learning how to use less water, in a way that shows we can do this.”

Bring future concerns to the table

It takes extraordinary coordination, discipline, and foresight—as well as some fear of what the future could bring—to negotiate agreements that mandate sustainable behavior. The following three guidelines can help:

1. Fill the well for others. While working as a facilitator to bridge differences between warring factions in the Democratic Republic of Congo a few years ago, Brandeis University professor Alain Lempereur found that parties were losing track of the big picture. He asked them to think about the kind of legacy they would like to leave for their children, a reframing that led to a breakthrough. The closer we feel to future generations, the more motivated we will be to act on their behalf by making responsible long-term decisions. In doing so, we narrow the “psychological distance between generations,” according to Duke University professor Kimberly Wade-Benzoni.

2. Go where the river takes you. We often view differences between negotiators in multiparty dealmaking as barriers. In fact, our differences are often potential sources of value. If one party is in a position to give very little, another party may be willing to pick up the slack in order to get a deal done. More powerful parties may also find they’re in a privileged position that enables them to broker deals between other parties, as the State of Nevada did. In social dilemmas, such as fights over scarce resources, a neutral party may be needed to help parties look beyond their self-serving, tribal viewpoints to see the big picture.

3. View the glass as half-full. While we sometimes must make significant concessions to ensure a sustainable future, changing environmental and economic circumstances also offer a wealth of opportunities for value creation. Water users and managers need to continue to explore ways to allow all parties to meet their most important needs through cooperative, economic, and technological measures, write Shafiqul Islam and Lawrence Susskind in their book Water Diplomacy: A Negotiated Approach to Managing Complex Water Networks (Routledge, 2012). In any complex negotiation over scarce resources, the most powerful—and helpful—parties are often those who have taken steps to meet future needs.

For decades, the Colorado River has been in trouble. The river supplies water to 40 million people and five million acres of farmland in seven U.S. states and Mexico. But following 19 years of drought and population growth, the water levels of the river’s largest reservoirs, Lake Mead and Lake Powell, have sunk to record lows. If Lake Mead continues to be depleted, it risks reaching a “dead pool” stage where the water will be trapped below the gates that let it out.

Back in 2007, reacting to the early years of drought, the seven states served by the river— Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming—negotiated a 20-year plan in which they voluntarily agreed to use less water to preserve lakes Powell and Mead. But their agreement, the Drought Contingency Plan, has failed to keep up with population growth and what some scientists who study the river now refer to not as drought but aridification—long-term drying hastened by climate change and overuse.

Several years ago, the seven states returned to the negotiating table, aiming to agree to more stringent cuts to water use to boost the reservoirs’ long-term supply. They had a strong incentive to reach agreement: If they failed to negotiate a joint plan by the end of 2018, the federal Bureau of Reclamation threatened to take over management of the river’s water.

The Colorado River crisis reveals a fundamental human flaw: We focus so much on meeting our immediate desires that we overlook future needs. Undersaving for retirement, squandering natural resources, and failing to prepare for climate change are all unfortunate consequences of our chronic tendency to privilege present concerns over future ones.

Factoring long-term concerns into our decisions and negotiations becomes all the more difficult when we’re competing with other parties for scarce resources. When fishing fleets in a given area compete to catch as many fish as possible, for example, depletion of the seas is the inevitable result. Ecologist Garrett Hardin called this type of social dilemma “the tragedy of the commons.” Each group has short-term incentives to grab as much of the scarce resource as it can. When all groups behave in this self-interested manner, everyone suffers in the long term.

Our decisions are also impaired by our self-serving judgments of what would constitute a “fair” agreement—thatis, we make egocentric justifications for why we deserve more than others. Water managers of the Colorado River in different states, for instance, have clashed on who should make the greatest sacrifices, and cities and farmers have accused each other of using too much water. Overoptimism—the assumption that things will work out, somehow or other—also keeps us from making responsible decisions. “Historically, we’ve always said, ‘Well, next year will be better,’” Eric Kuhn, former general manager of the Colorado River District water agency, told NPR. “And that’s the easy way out.”

But these all-too-human barriers to sustainable decision making are not insurmountable. The seven states charged with renegotiating their Drought Contingency Plan recently reached an agreement that, while just a start, could set the groundwork needed for effective long-term solutions.

Taking the plunge

As the multistate negotiations began, the goal for the states in the Colorado River’s Upper Basin—Colorado, New Mexico, Utah, and Wyoming—was to keep Lake Powell above a target level to allow water to continue to be sent to Lake Mead. The Lower Basin states of Arizona, California, and Nevada were tasked with agreeing on new water-usage cuts and creating new incentives for water conservation for Lake Mead.

By late 2018, water authorities in Mexico and five of the states had reached agreements. Arizona and California needed more time.

California hit a roadblock when the board of its Imperial Irrigation District (IID), the largest user of Colorado River water, said in early 2018 that it wouldn’t sign on to a statewide deal unless it received $200 million in federal funds to manage the declining Salton Sea, which is part of the broader Colorado River system outside Palm Springs. Created accidentally in 1905 when the Colorado River breached its levees and flowed into a dry lake bed, the sea has grown increasingly saline and polluted, posing threats to public health. Without the IID’s support, it looked like California might not be able to sign on to the deal. But then a novel solution arose: Another California water agency agreed to take on the burden of further cuts, allowing the state to sign on. The IID later reached a separate deal with the State of California to mitigate the Salton Sea’s environmental and health hazards.

Arizona was hampered by the fact that it faced the steepest cuts to water use and was also the only state that needed to win the support of its legislature. Agricultural interests in the state balked at agreeing to significant cuts but ultimately agreed to do so in exchange for funding to help them switch from river water to groundwater.

Nevada, by comparison, was prepared to easily absorb new cuts to water use thanks to a pumping system it had constructed, with some foresight, to access the Colorado River at low elevations. As a result, Nevada approached the negotiations with relative neutrality and ended up playing the role of “Switzerland” in a dispute between Upper and Lower Basin states, according to Southern Nevada Water Authority general manager John Entsminger. Under the 1922 Colorado River Compact, Upper Basin states were entitled to use more water than Lower Basin states but were obligated to send conserved water to Lake Mead to address its chronic depletion, according to the Denver Post. That created tensions between the two regions. Nevada helped bridge the divide by negotiating for Upper Basin states to be able to bank their conserved water in Lake Powell without sending it to Lake Mead, the Independent reports.

Going with the flow

In the end, the states were able to celebrate an agreement—and breathe a sigh of relief. “Instead of balkanizing into fractured state interest groups, we’re all working together to control our own destiny,” James Eklund, the attorney who represented Colorado in the negotiations, told the Denver Post.

Yet all parties involved are aware that the revised Drought Contingency Plan is only a short-term fix. Next year, water managers will launch negotiations to come up with a long-term plan for the Colorado River beyond 2026. As the river faces even more pressure from changing weather conditions and population growth, negotiations will become more challenging.

Their recent breakthrough has left some water managers feeling hopeful that they can sustain their cooperative spirit. “Over the last five to 10 years, what I’ve noticed as a positive is [that] those tribalistic instincts seem to be going away,” Shane Leonard, general manager of the Roosevelt Water Conservation District in central Arizona, told Cronkite News. “They’re definitely still there. But they’re not as hard as they used to be.”

“We haven’t seen the catastrophe that people thought would happen,” University of New Mexico Water Resources Program director John Fleck told the Independent. “We’ve seen voluntary measures, communities learning how to use less water, in a way that shows we can do this.”

Bring future concerns to the table

It takes extraordinary coordination, discipline, and foresight—as well as some fear of what the future could bring—to negotiate agreements that mandate sustainable behavior. The following three guidelines can help:

1. Fill the well for others. While working as a facilitator to bridge differences between warring factions in the Democratic Republic of Congo a few years ago, Brandeis University professor Alain Lempereur found that parties were losing track of the big picture. He asked them to think about the kind of legacy they would like to leave for their children, a reframing that led to a breakthrough. The closer we feel to future generations, the more motivated we will be to act on their behalf by making responsible long-term decisions. In doing so, we narrow the “psychological distance between generations,” according to Duke University professor Kimberly Wade-Benzoni.

2. Go where the river takes you. We often view differences between negotiators in multiparty dealmaking as barriers. In fact, our differences are often potential sources of value. If one party is in a position to give very little, another party may be willing to pick up the slack in order to get a deal done. More powerful parties may also find they’re in a privileged position that enables them to broker deals between other parties, as the State of Nevada did. In social dilemmas, such as fights over scarce resources, a neutral party may be needed to help parties look beyond their self-serving, tribal viewpoints to see the big picture.

3. View the glass as half-full. While we sometimes must make significant concessions to ensure a sustainable future, changing environmental and economic circumstances also offer a wealth of opportunities for value creation. Water users and managers need to continue to explore ways to allow all parties to meet their most important needs through cooperative, economic, and technological measures, write Shafiqul Islam and Lawrence Susskind in their book Water Diplomacy: A Negotiated Approach to Managing Complex Water Networks (Routledge, 2012). In any complex negotiation over scarce resources, the most powerful—and helpful—parties are often those who have taken steps to meet future needs.