Karon Law Blog

Why There’s a Government Shutdown: “Win-Lose” vs. “Win-Win” Negotiations

By Jonathan  A. Karon

Negotiation is one of the most important skills required of a successful trial lawyer. Not only do most civil cases settle prior to trial, but every piece of litigation involves multiple negotiations between opposing counsel over subjects such as exchanging relevant information (“discovery”) and scheduling events. Most law schools offer classes in negotiation and some attorneys, like myself, have attended seminars to refine their negotiation skills. One of the fundamental principles that is taught is that there are two types of negotiations: “win-lose” and “win-win”. Understanding the difference helps explain why we are now in day 21 of a partial government shut-down.

A “win-lose” negotiation typically occurs between two parties who don’t have an on-going relationship and have very little trust in each other. It usually involves haggling over price. The classic example is buying a used car. The seller wants to get the highest price possible and the buyer wants to pay the lowest price possible. They don’t expect to see each other again and may rely on misrepresentations, threats and other ploys. It is typically a “zero-sum game” with each dollar in price making one side worse off and the other side better off.

In contrast, a “win-win” negotiation is an exercise in joint problem solving. Unlike a “win-lose” negotiation, the parties have an important on-going relationship, there is some level of trust and there are multiple aspects to the problem. The goal is to find an agreement that is better for both parties than no agreement. A good example would be trying to resolve a dispute with your spouse over where to go on winter vacation. Perhaps you want to go skiing, while your spouse would like to go snorkeling in the tropics. Trying to impose your will on your partner risks serious damage to your relationship. So, you try to find a solution that works for both of you. Maybe you go skiing this year and snorkeling next year. You might also agree to go to the tropics for a week, but take some shorter ski weekends closer to home. The point is that you are working together to reach an agreement that works for both parties. It’s called “win-win” because the idea is that both parties are winners, having reached a deal that is better for both of them than no agreement.

So what does this have to do with the government shut-down? President Trump is insisting that Congress fully fund a border wall as a condition of signing a budget bill. This is classic “win-lose” negotiating. Using threats, bluster (and some news outlets have suggested mis-representation) he is insisting that House Democrats bend to his will. Not surprisingly, Nancy Pelosi and Chuck Schumer are having none of it. Legislation in a divided Congress is usually the product of a “win-win” negotiation-nobody gets everything they want, but everybody gets something they want. Unfortunately, a “win-win” negotiation is impossible with a “win-lose” negotiator. The classic response in this situation is to either walk away from a bad deal (as the Democrats have done) or give in to a bad deal, which the Democrats apparently feel under no pressure to do. This makes sense as giving in to unreasonable demands generally only encourages more unreasonable demands.

So, unless President Trump changes his style and attempts to broaden the bargain so that the Democrats get something they really want in exchange for wall funding, the shut-down will be prolonged until political pressure forces one side or the other to cave. As another fundamental principle of negotiation is that each negotiation affects the next negotiation, how this plays out will shape our next two years of divided government.