Newsletter 273 — September 12, 2023
Heidi Burgess and Guy Burgess
In Newsletter 78 (and the reprised Newsletter-271) we outlined a five step "constructive confrontation" strategy for applying insights from conflict and peacebuilding related fields from an advocacy, rather than an intermediary, perspective. Step 4 of this plan focused on "Planning Your Strategy." Generally, disputants have four choices: focusing on interests, rights, power, or some combination of those three. This "tricotomy" (a dichotomy with three choices) was first described by Ury, Brett, and Goldberg in their 1988 book Getting Disputes Resolved.
Ury, Brett, and Goldberg distinguish between three ways to approach any conflict. The first approach involves identifying and reconciling the disputants' basic interests — their underlying desires or goals — with the interests of other parties. This is usually done through problem-solving or interest-based negotiations.
The second approach focuses on determining "who is right" (as they put it). "As a shorthand for such independent standards, we use the term rights. Some rights are formalized in law or contract. Other rights are socially accepted standards of behavior, such as reciprocity, precedent, equality, and seniority." (Ury, Brett, and Goldberg, p. 7) Since Ury, Brett, and Goldberg's book is primarily focused on labor negotiations, they write about rights that are not codified by law or in the Constitution, though they often are delineated by contracts or organizational procedures. Rights-based processes, therefore, can be any legal or less formal process that consults independent standards to determine who is right and who is wrong in a particular conflict.
The third approach is to use power to overcome resistance and take what you want or need. Ury, Brett, and Goldberg acknowledge that they "define power, somewhat narrowly, as the ability to coerce someone to do something he would not otherwise do." This matters because there are broader definitions of power which we will explore in a following article. But for now, "power" means "coercion." This approach can take the form of strikes (in labor disputes), elections or legislative votes (in political disputes), public demonstrations (in larger societal disputes), or violence (when the political process, nonviolent action, and the rule of law fails). It can also show up in negotiations as an exchange of threats. And, political power can be used to create (and take away) legal rights (e.g. same sex marriage, abortion).
The authors argue that the interest-based approach is generally less costly and tends to result in better relationships, more satisfactory outcomes, and less dispute recurrence. So whenever possible, they assert, disputants should try to resolve their conflict first using interests. Only when that doesn't work should they turn to the next best approach ("best" measured in terms of costs versus benefits -- better relationships, better outcomes, less recurrence) which is rights and only when that doesn't work, should disputants turn to power-based approaches.
They illustrated their key idea in a simple diagram which we show here:
On the left they show an inverted triangle, in which most of the dispute is being pursued by trying to overpower the other, and much less investment is being given to rights and interests-based approaches. This is a very accurate description of political conflicts today. Most are being fought out by each side trying to over-power the other: most often at the ballot box, but also through direct threats (for example the violence we witnessed at the U.S. capitol on January 6, 2020) or in the many cases of political violence and threatened violence ever since. "Cancel culture" efforts to suppress opposing points of view are another type of power contest.
Rights are also being used as a way to force one side's views upon the other. The most visible example recently is the U.S. Supreme Court's Dobbs Decision which repealed the right to abortion first established by Roe v. Wade.1 Activists on both the left and the right have long used the courts as a way to try to force their values and policies on the other side, asserting, for instance, that gays have (or don't have) the right to marry, that the Clean Air Act can or cannot be used to control greenhouse gasses, that illegal immigrants should be allowed to stay in the country or not...and many other value-based conflicts. As Mary Ann Glendon long ago observed, we are living through an era in which an evermore expansive array of rights are being asserted, largely because rights, unlike grievances, don't need to be compromised.
Negotiating mutually-acceptable and even win-win outcomes has become exceedingly rare in the current political climate. It has happened occasionally (for instance the 2022 bipartisan Infrastructure Bill, the Safer Communities Act (a bipartisan gun law), and the CHIPS and Science Act (a bipartisan bill to help the U.S. stay competitive with Chinese in the area of semiconductor research and manufacturing). But overall, politics at the national level is characterized by name-calling, threats, and other highly adversarial behaviors designed to advertise each sides' brand, advertise the danger and evil character of the other side, and thus and gain votes (hence power) in the next election. The result is a complete political standoff on most issues, and a public opinion of Congress which hovered around 75% disapproval in 2023 (when this article was first written). It is now down to only16% approval.
Ury, Brett, and Goldberg argue that an effective dispute resolution system (which Congress is supposed to be) should be structured like the triangle on the right. Disputes should first be addressed on the basis of interests. Opposing parties should use interest-based processes (such as interest-based negotiation) to try to work out mutually-satisfactory agreements on the issues. If this is done in good faith and reasonably skillfully, it should be possible to resolve most of disputes in this way. This is the way interpersonal disputes are best resolved, it is the best approach, Ury, Brett, and Goldberg say, for labor-management disputes, and it is also the way, ideally, that Congress should operate. Senators and Representatives should listen to testimony from all stakeholders, make proposals based on their constituents' interests, negotiate those proposals with the other side, and come up with a bill that responds to as many of the parties' interests as possible. Only when such negotiations fail, should one turn to rights-based processes, and only when those fail, should one turn to power-based processes, which should be reserved for only the most intractable of issues.
Ury, Brett, and Goldberg also point out the importance of what they call "negotiation loop backs." The idea here is that even when one is engaged in a rights-based or power-based process, one should stop on occasion and try negotiation again. Non-negotiable situations arise in cases where competing parties both think that a power contest will yield a major victory. Under such circumstances, it is impossible to craft a negotiated agreement that both sides think will be more attractive than the victory they expect. But, if something occurs to change those predictions, and one (or possibly both) sides conclude that they will not win a power contest, or that their "BATNA," (their "Best Alternative to a Negotiated Agreement") is not as good as what they can likely get through negotiation, then negotiation suddenly makes sense.
This is what settlement conferences are in the context of court cases. Very few court cases actually go to trial. Most are settled out of court before trial through negotiation: sometimes after the "discovery" process makes the strength of each sides' case clear, and it makes it possible to see who is likely to win and who is likely to lose. It then is much quicker, less expensive, and safer to settle out of court through negotiation.
The same thing can be done with power contests. Both Gandhi and King advocated pausing their nonviolent actions and attempting negotiation on occasion, once the power of their side was amply demonstrated through nonviolent actions. I was surprised to learn from Taylor Branch's book Parting the Waters, that Martin Luther King offered to pause the Montgomery Bus Boycott, offering to negotiate with the bus company and the city officials about where the segregation line would be drawn on the bus. (This was a line, behind which all African Americans had to sit. He was willing to negotiate simply moving the line forward, giving more seats to African Americans, rather than removing the line completely.) Fortunately, however, the whites refused to negotiate, and the power-struggle continued for over a year, at which time the U.S. Supreme Court upheld a lower court ruling that stated that racially segregated seating on busses was unconstitutional. The line was immediately removed, the boycott ended, and the conflict was resolved through a rights-based decision.
One could argue, of course, that this is a good example of something that should not have been negotiated — that the power contest was essential to establish a fundamental right. And that may be true. But the costs to the African Americans who had to endure months of hardship, walking long distances to work, or establishing massive car-pool systems, might have not been worth the cost. It might have been that negotiation over the next few years would have resulted in the same outcome, with much lower cost to the people who could bear it least.
The Montgomery Bus Boycott was, obviously, a case that produced a major power realignment and was instrumental in changing the framework of legal rights in the United States. Most power contests and negotiation loopbacks produce much more minor incremental changes. But these changes that still play a major role in the evolution of society and democracy's efforts to live up to its ideals. What we want to avoid are costly power contests that yield outcomes that most everyone, in advance, expected. (Why, for instance, fight a divorce out in court, when it is pretty easy to figure out how a judge will decide to split assets or handle joint custody. This is better mediated, avoiding a costly and protracted court fight.)
But this way of looking at things also makes clear that negotiation occurs within the context of societal power relationships. Negotiation is not mechanism for changing those relationships. That is something that emerges from a broader power contest of social and political ideals.
For example, nonviolent direct action (of which the Montgomery Bus Boycott was an excellent example) can change the balance of power between high and low-power groups substantially. It is unlikely, we would guess, that the Montgomery lower court would have ruled in the African-American's favor in earlier years. It was the pressure and the power shift brought about by the bus boycott and associated moral appeals that likely caused it to rule as it did.
Power can also be wielded through the media — both traditional and social media — as members of different identity groups try to assert the dominance of their political narratives (and hence policies) over others.
And, of course, power can be asserted with violence or threats of violence. It is very concerning, for instance, that threats of violence against election workers has caused many to resign over the last several years, allowing them to be replaced by people who are overtly biased. Threats and actual attacks on elected officials are also on the rise and are very concerning. If democracy is to survive, we need to strongly condemn such actions, even when they come from our own side, or apparently "help" our own side. We must insist, instead, on non-violent power contests and use those only as a last resort when rights and interest-based approaches fail.
Powerful actors (and especially those we call bad-faith actors) commonly employ a wide range of sophisticated and often deceptive tactics to advance their interests at the expense of everyone else. Fortunately, a wide array of public interest groups have developed counter-strategies that aim to increase the power of good-faith actors, so that rights- and interest-based strategies can be pursued on a more level playing field. The success of such efforts are key to democracy's ability to live up to its ideals.
As Ury, Brett, and Goldberg argue, the advantage of getting a settlement through interest-based negotiation is that it is likely to be much more widely accepted, and much less likely to result in the kind of severe backlash that can destroy efforts to make sensible and compassionate decisions. It also avoids driving the hyper-polarization spiral in ways that threaten democracy more generally. As the U.S. Supreme Court's Dobbs Decision1 illustrates, even apparently settled law can be reversed, particularly when the power and legal struggle leading to the making of that decision so infuriates the losing side that they are willing to fight for fifty years to reverse the decision. As has been frequently noted, most Americans are actually in fairly close agreement about what public policies regarding abortion should be. If, 50 years ago, the issue it had been negotiated on the basis of interests, it is much more likely that we would now have a stable set of laws that most people believe that they can, at least, live with.
As we write this, in September 2024, it looks, somewhat surprisingly, as if the Dobbs decision will eventually yield such a stable set of broadly acceptable laws, though still through power contests, not negotiation. Dobbs threw the issue back to the states, where far right legislators in many states began passing extremely restrictive laws that that have made abortion practically impossible to get and have even prevented some patients from receiving IVF treatments or badly needed-care for ectopic pregnancies or miscarriages. This has, however, resulted in significant "red state pushback," with citizens proposing and passing ballot initiatives to protect broadly supported policies regarding these issues and abortion access, more generally. They are also electing governors and legislators who promise to support those policies and are filing court cases to try to block implementation of the most extreme anti-abortion measures. Particularly revealing is the fact that Donald Trump, who proudly claims credit for appointing the justices who reversed Roe v. Wade, is now embracing the state-by-state shift to more moderate abortion policies (although his position remain inconsistent). While all of these approaches are still power contests, it appears as if the political power is most often on the side of those who want to protect abortion rights — at least through the first trimester, which is, indeed, what polls show most Americans believe is the "right" approach. So in this case, power contests may indeed be getting us where we collectively want to be — but at a very high cost.
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1In 2022, the U.S. Supreme court decided in the case of Dobbs v. Jackson Women's Health Organization that the U.S. Constitution does not confer a right to abortion and that the authority to regulate abortion is "returned to the people and their elected representatives." This reversed the 1973 Roe v. Wade opinion which asserted that the "the right to privacy implied in the 14th Amendment protected abortion as a fundamental right. However, the government retained the power to regulate or restrict abortion access depending on the stage of pregnancy. And after fetal viability, outright bans on abortion were permitted if they contained exceptions to preserve life and health. "
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