Peter Williams, Associate Director
In the first part of this series, we talked about being “high-centered”, stuck between in the rut and ridge of a bumpy competition-conflict relationship, unable to make progress towards collaboration-partnership. Sometimes, no matter how hard you try, you go from stuck, to sideways, to upside-down. Let’s talk about the latter two.
Sideways and what to try. Let’s say you’ve been working in good faith with a partner, along the lines of the first blog in this series. You’ve been sharing credit, getting ahead of rumors, agreeing on talking points, and building trust. But maybe you’ve heard that a partner is still posturing as an opponent when they interact with particular audiences. This is what I mean by going sideways.
When you realize what’s happening, here are three more things you can try - often simultaneously:
- Remember that, while you can’t control your partner, you can control your reaction to the situation. This includes how you frame what your partner is doing or saying. That latter point is important when talking with leadership and others in your agency about what’s happening. You may have to talk your own people “off the ledge” if they feel like your agency is being thrown under the bus by a partner. As I mentioned in Part 1, that perception, deserved or not, can become a problem if allowed to fester. Use your reaction to this situation as an opportunity to get ahead of the rumor mill.
- Reach out to the partner and discuss the situation. You might do this in the same way one might work with an employee. Start by recognizing your own assumptions and suspending those first. In the best case, maybe there’s a reasonable explanation or a simple misunderstanding. Reach out to the partner, share what you’ve heard and why you’re concerned, with a clear focus on how the process is being affected. Speak professionally and firmly, with a goal of understanding the issue and reaching an agreement—even if informal—about future communications. That’s where having already modeled the desired behavior is invaluable. And remember the other Golden Rule: Speak to be understood; listen to understand. Finally, recognize that you may hear something that deserves discretion on your part. Honor that to build trust.
- Try peer pressure. I’m not above quietly, professionally, and courteously encouraging other partners to reach out to a problematic partner to have their own conversation. You may find that other partners have their own interests in continuing to work collaboratively, which can serve as an incentive to apply peer pressure, and they often have their own relationship with the problematic one, which may mean the peer-pressure could work. You’ll need finesse here to avoid a bull-in-a-china-shop moment, so handle with care.
Beyond Sideways to Upside-Down: The value of asking “What-if?”
Despite all your best efforts, sometimes a situation moves beyond sideways and goes upside-down. Even in that situation, you still have alternatives. Are you familiar with the concept of the Best-Alternative-To-Negotiated Agreement (BATNA)? This idea was developed in the series of books, Getting to Yes.
One of the most important take-aways here is this:
A BATNA isn’t the same thing as a fallback position in a negotiation.
A BATNA is needed when a negotiated agreement becomes impossible. Stated another way, you need a fallback position during a negotiation; you need a BATNA when negotiation is no longer possible. A BATNA describes how you might work with your partner when there’s no longer a partnership or if they become an adversary. Think about it as the best is you can expect if you or the other parties quit negotiation, leave the mediation, or stop trying to work together collaboratively.
So, in a situation that seems sideways and headed for upside-down, try talking through your BATNA, the best you can expect if you decide to approach the problem in a more confrontational or adversarial way. Ask yourself, “what-if?” There are times when you work with a partner and, despite your best efforts, the dynamics become dysfunctional. It could be that a partner is facing issues you don’t even know about, ones they simply can’t resolve. In these cases, thinking through a BATNA is helpful.
As part of thinking through a BATNA, I find it helpful to distinguish between working with participants and partners and working with clear adversaries. A thoughtful BATNA will need both elements. What I try to avoid is allowing a small group to hijack everyone else, so a good BATNA should reflect ways the main group can continue to work together and make progress despite acknowledging that there are some folks trying to keep that from happening. What this means is the first part of your BATNA might focus on how to maintain momentum with everyone else in the face of an adversarial challenge from some other quarter.
At the same time, I look for ways to encourage the other folks to reconsider their choice to behave as adversaries, including letting them know they are welcome to rejoin the larger discussion, that it’s their choice to do so, and that you hope they’ll do so in a less adversarial way.
Knowing that may not work out, I also focus on doing what I can to ensure the process is procedurally sound and that no abuse of administrative discretion has occurred. This is important because the outcome of any future legal challenge generally will hinge on whether a court finds that a procedural violation exists, which usually depends upon whether there is good documentation in the administrative record showing how the agency used its discretion.* Anticipating and finding ways to avoid even the appearance of a procedural violation or of an abuse of agency discretion is good practice regardless, but it’s especially important in a sideways or upside-down situation.
At the end of the day, though, remember this: you aren’t alone. If you work in partnerships long enough, you will eventually find yourself at odds with a partner. When that happens, reflect on these strategies for getting back on track and, if things seem to be going sideways or upside-down, remember you have these other strategies in your back pocket.
Have more questions or other ideas to add to the mix? Please drop us a line.
*In this situation, I’m referring to matters related to judicial review under the Administrative Procedure Act (5 USC 701-706), particularly reference to “abuse of discretion” and “without observance of procedure required by law.” (See the CRS Overview at the link provided or HERE)