Insights 2011: Negotiation vs. Confrontation: Some Insights and Observations

The recent willingness of the United Poultry Producers and the Humane Society of the United States to put down their guns, dispense with the lawyers and forge an agreement in regard to a national humane standard for laying hens has prompted me to consider the potential gains that could be realized if this sort of conflict resolution were to be put into practice more often.

Based on this and other successful negotiations to which I’ve been a party, I’d like to offer what I see as some of the key elements it takes to settle very large-scale and politically sensitive controversies (which I hope will encourage this type of industry and activist cooperation on other issues as well):

1.) Have the "win" in mind for both parties.

Going into any negotiations, you have to understand exactly what would constitute a “win” for both parties, and articulate and agree to it early on. In this particular case, the win for the Humane Society of the United States was that an agreement would impact 285 million birds versus the mere 27 million that would be affected by ballot initiatives it was sponsoring in California, Washington and Oregon – and without having to spend millions of dollars in the process. Additionally, this agreement (as proposed in the "pre-designed" headline) would roughly double the space allotted to all laying hens from the current 52 and 67 inches to 124 inches.

For the Egg Producers, the “win” was that they would be given a level playing field on which to compete with one another and that they would not be subject to state laws that would require different growing practices for different states -- a patchwork of laws would be very difficult or impossible for the industry to comply with.

2.) Have a firm end date to work towards.

The firm date in this case was established based on ballot initiatives pending in Oregon and Washington, which HSUS had enough signatures to pursue with a July 8th filing deadline. So the negotiations had to be concluded by July 7th at the latest. (We set July 6th as the settlement deadline to allow us to schedule a press conference for the following day). Having such a firm date was the only way we were able to get all the issues addressed without procrastination. If we had not set such a deadline, the deal would never have been consummated because everyone involved was worn out and weary of negotiating by that time.

3.) Sort through and segment industry issues from legal and emotional issues, and address these accordingly.

You can't try and negotiate every single aspect of a dispute --- there are legal questions that the lawyers need to settle outside of the negotiations, as well as pragmatic issues that the industry has to deal with (in this case, for example, how many hen houses designed to the proposed new specifications can be built in five, 15 and 20 years. This was a major issue in these negotiations because in order to double space, you have to double the number of hen houses -- not an easy task when you’re talking about more than 2,000 large-scale existing structures. The other issue, -- which was purely an emotional one -- was that HSUS felt that anything with a date beyond 2030 would not fly with its board, so the conversion of the final hen house was something we had to have slated to be accomplished prior to 2030.

4.) No matter what happens, keep everyone coming to the table and keep talking.

Have you ever been at the point of giving up on something, only to find that one last effort, one final push, unexpectedly succeeded in achieving your objective? I can tell you that I’ve not only witnessed this phenomenon on various occasions, but experienced it myself in just about every major breakthrough in which I’ve been involved.

That means when the negotiations break down, let’s take a breath and get them restarted. And most of all, let’s remember that the points of greatest pain or resistance are the ones that have the potential to yield genuine breakthroughs. So when we think we’ve exhausted our ability to resolve them, and have no more energy left, let’s give it one more go -- because in the end that’s how accords are forged that everyone can live with.

5.) Make sure you have in your pocket one compromise on a major point for each party that you know you can throw in at the 11th hour.

One of the key things I’ve learned along the way is that my job in helping to facilitate any agreement is really looking for the “win-win” in every sentence, and determining where the give- and-take resides. Being able to talk to both sides on this particular issue put me in a good position to determine where the thresholds were and how far to push each point. I realized going into the last 48 hours that we were not going to get there without a couple of key concessions at the end. In the final hours, when I still wasn't quite sure how to achieve a “win-win” on certain aspects, I tabled those issues and kept working on the ones I knew we could get through. At the end, there were two nuggets of compromise --one on each side -- that had come up a week before, both of which were used in the 11th hour to reach a final resolution when everyone was exhausted and things had come to a screeching halt.