This week, one of the few sandwiched between Queen Elizabeth’s Diamond Jubilee and the yearly recurrence of the Fourth of July, this expat lawyer finds his thoughts turning to the founding of the United States. In particular, what a royal mess it might have been. After all, as a document, the constitution has lasted 225 years, and–some bumps aside–still works pretty well.
And it was a document that was produced by committee, a committee of 55 members. And, as it turns out, few members of that committee were present for the entire Convention. Instead, many of them took long leaves of absence for various reasons, including attending to their actual jobs and tending to sick or dying relatives. Not only that, but the document took on a number of seriously contentious issues, including the rules for representation of different states and the question of where–if at all–slavery might be permitted.
So, given all of the challenges the Constitutional Convention faced, how did it not turn out worse?
Then-law student Dana Lansky, offers an intriguing explanation in her Harvard Negotiation Law Review article Proceeding to a Constitution: A Multi-Party Negotiation Analysis
of the Constitutional Convention of 1787: the Convention delegates were very wary of the problems that a multi-party negotiation might face, and put a number of structural solutions into place. While the article is twelve years old, but it packs in a lot of insights about the dynamics of large, chaotic negotiations.
Lansky uses James Madison’s notes from the Constitutional Convention as her primary source. (So keep in mind that there may be some bias based on the fact that the primary source is one of the negotiators. In this case, I don’t think the potential bias disqualifies the article, since Madison had an interest in a successfully negotiated outcome.)
Among the helpful suggestions Madison (through Lansky) offers:
- Appoint a facilitator. At the Convention, the facilitator was George Washington. (The Pennsylvania delegation were actually the ones to nominate him, which allowed everyone to rally around him.) And, as the article points out, Washington took great pains to appear impartial during the Convention. (He rightly recognized that if he were simply viewed as a partisan for Virginia, then the negotiations would likely break down. (For class action lawyers, this is one reason why mediation is so often a good option if one is considering settlement.)
- Break into smaller groups. Or, as we often like to call them, committees. As another excellent article on the Convention notes, the Convention relied heavily on committees to expedite daily business and work out thornier issues. In fact, the use of the committee had a long pedigree, stretching back through the English Parliament at the very least. The Convention delegates used committees to break deadlocks and facilitate compromise.
- Propose packages. When you have multiple negotiators, there will inevitably be multiple issues they care about. How best to address all of them? Virginia came up with a proposal for a number of issues, then proposed them as the "Virginia Plan," which basically worked like an agenda. While others (the New Jersey delegation and Alexander Hamilton, for two) proposed alternative packages, the Virginia Plan remained front and center during the various debates.
- Do your homework. Before the Convention, James Madison did the most homework, researching issues, writing out solutions, and making educated guesses as to how other states might react. Guess who had the most influence? (And guess how the Virginia Plan was proposed so early?)
- Be as vague as you can get away with. Allows you to focus on areas of agreement, avoid areas of disagreement. Framers would actually make proposals that had blanks: e.g., "the states shall be divided into districts _______," which postponed any debate about the nature of the districts until everyone had agreed on the principle. While those blanks would have to be filled in sometime, the earlier agreements produced some commitment to later negotiation.
- Allow a reconsideration or tabling rule. Allowing people to revisit issues allowed parties to move on from impasses before they become stalemates. It also allowed for time to negotiate beneficial linkages. (Of course, under some circumstances, allowing parties to postpone discussions might simply lead to retrenchment, or opportunities to undermine negotiations.)
- Don’t forget informal talks. The Convention lasted a long time, in a place that isolated a number of the delegates from their homes. As a result, they did much of their socializing with each other. And these informal talks allowed certain issues to proceed better than they might otherwise. Sharing a drink with your counterpart, or having other time when you talk about things that are not specifically related to the substance of the negotiation, can be a great way to build trust and learn where common ground may exist.
The Constitutional Convention was hardly a perfect gathering, and the tendency to mythologize the "Founding Fathers" can be overwhelming. But it is hard to deny that, in this case, a number of the delegates went to great pains to both recognize the challenges that faced them in a large group, and to address those as best they could. The fact that the document they produced has lasted as long as it has through as many challenged as it has says something about how well these techniques can work when used by a group of serious-minded negotiators.