Kavanaugh Hearings through the lense of negotiation heuristics

Max H. Bazerman and Margaret Neale wrote several papers together where they explore the limits of "rationality" in the context of negotiations.

In those papers they explored how heuristics, mental shortcuts, often lead to systemic errors. When available, they suggested tactics and strategies to minimize the risk from those mental shortcuts.

Some of the specific errors they examine include:

Excessive Optimism

Icarus became exuberant and flew too close to the sun

Let's examine this in the light of the recent Kavanaugh hearings.

Some of the greatest Democratic political minds engineered getting Dr Ford's televised testimony in front of the Senate Judiciary committee. Some ways in which they might been excessively optimistic:

1. Their certainty that they could permanently derail Kavanaugh's appointment
2. That Kavanaugh would harbor no animus toward the Liberal agenda afterward
3. That future appointees will harbor no animus toward the Liberal agenda
4. The degree to which voters will believe Dr Ford. While many might believe her there is the risk that they will be creeped out by a fifty-year-old professor who presented as a four-year-old child with baby voice and shivers of excitement.
5. The expectation that they will pick up a majority in the Senate in the 2018 elections.

While these expectations may all come to pass it is unwise to bet the rent on it.

Pre-announcing "demands"
Putting a stake in the ground at the beginning of negotiations puts the negotiator into a win-lose situation.

Overly optimistic placement of the reference point ensures that losses will occur.

Prospect theory informs us that actors feel losses three times more acutely as gains. Any result that falls short of the "demand" is perceived as a loss and causes much pain.

That is why mature negotiators take great pains to avoid "demands" and "ultimatums" and telegraphing intentions. Doing so limits options and options have value even if they are not exercised.

Sturm und Drang

It is easy to conflate apparent effort and drama with actual results. Knowing this, some actors will inflate the apparent effort and drama to mask the fact that they have little actual results to deliver.

Imagine that a union official and a representative of management went into negotiation for a three year contract. Furthermore, suppose they negotiated for three hours and came out with an agreement. Do you suppose the rank-and-file would accept that agreement? Do you think top management would accept it? Of course not. It was too easy.

Now imagine the same situation but the representatives work twelve hours a day, seven days a week right up to the deadline. Suppose they agree to extensions and work 24 hours a day for two weeks past the deadline. They exit the conference room stinking of unwashed clothing stinking of pizza and stale coffe, haggard and wan. Does it matter to anybody that the agreement they ended up with is not materially different than the one they could have agreed to in three hours?  Of course not.

The important thing to all stakeholders is that they can shrug off criticisms with the excuse, "There was nothing more that could be done. No expense was spared."

Sadly, sometimes the costs of creating sufficient Sturm und Drang is all of the good-will required for future dealings with the other party.

The mythical fixed pie

Pork chops.

Jack Sprat could eat no fat, his wife could eat no lean...

I like pie filling and Mrs ERJ likes the crust. We can both "eat the whole pie" if I get nearly all the filling and she gets nearly all the crust.

The key to achieving this miraculous math is to communicate enough so miss-matches in the valuation can be identified.

In the case of the Kavanaugh hearings, the de facto process has become vote-out-of-committee and then a final, limited FBI check on allegations that floated up during the hearings.

This is not a bad balance between the Executive Branch's need to move expeditiously and the Legislative Branch's need to be accountable to the voters in their home district.

Bazerman and Neale identify three other heuristics that often come into play in the negotiation process.