Everyone has to negotiate with government sooner or later. Maybe you’re seeking a building permit for an addition on your house. Or a reduced tax penalty at the end of an IRS audit. Or permission from the state to open a charter school. Or a contract to sell software to the Defense Department. You may not think you’re negotiating with the bureaucrats on the other side of the desk, but you are.
The first thing to recognize is that many government officials don’t think they are negotiating with you, either. As one bureaucrat from the Mexican Central Bank told me, “For government officials, negotiation is not proper. Law is not a negotiable thing when you are in charge of applying it.” Bureaucrats at all levels take comfort in this fiction for two reasons. First, if their decisions are made according to rigid rules, they’re not vulnerable to criticism. Persons upset by government decisions can be told to blame the rule, not the decision maker. Second, the word “negotiation” conjures up images of compromises and trade-offs in the eyes of the public. It suggests that people are not treated equally under the law. To respect governmental sensitivities, then, it’s often best to call your negotiations “discussions,” “conversations,” or “communications.”
That said, all governmental systems require that officials exercise discretion in making decisions, and your goal as a negotiator is to convince them to exercise that discretion in your favor. One of your first tasks is to determine just how much discretion a particular official has. It may concern the substantive application of a rule—for example, the official may be the one who decides whether the addition you want to build on your house is a permitted “incidental structure use”—but don’t forget that discretion plays a role in procedural matters, too. In other words, a bureaucrat’s power may consist of the ability to deal with your request quickly or let it rest in his or her in-box for months.
You’ll also want to search for the political imperative that drives the official. Perhaps the need to advance his or her career is paramount, or the need to protect departmental budgets. Or the official may be more preoccupied with preserving turf or warding off competition from other governmental departments. Whatever it is, you’re better off if you know it and adjust your strategy accordingly. For instance, if, during a year when the mayor is up for reelection, you want permission to build a shopping center that some people oppose, don’t expect a decision until after the election, no matter how many economic benefits your project will bring the town.
Another high-priority job for anyone in governmental negotiations is to find precedents for the decision you want the bureaucrat to make. A precedent allows officials to defend their decision, both to superiors and to the public. Sometimes you can locate precedents in published records, but often they are locked in the memories of bureaucrats themselves. So if all else fails, try asking a lower-level official for advice. The town clerk who has been around for 20 years may be a better source of information than the town manager who was hired last year and will probably move on in a few more.
And when you do find a precedent, don’t be shy about using it. I’m certainly not. Several years ago, I negotiated an agreement with the Sudanese government allowing the Ford Foundation to operate in that country. Talks proceeded nicely until I asked for full tax and customs exemptions for the foundation and its foreign personnel. The diplomat across the table hesitated, unsure whether that concession would be wise or even legal. He perked up, however, when I told him that the foundation’s agreement with Egypt contained similar exemptions. We ended up with an agreement that followed the tax and customs provisions of the Egyptian document word for word.
“Governments feel different,” an experienced corporate dealmaker once remarked. What he meant was that as negotiators, governments are not like individuals, or even private organizations. But in some sense, they’re not so different at all. The critical matter is to figure out the interests of the other side and what standards apply in that world. As always, when the people across from you recognize that you’re speaking their language, they’re more inclined to listen.
Article originally published in Tufts Magazine Winter 2008. Click here.
JESWALD W. SALACUSE is the Henry J. Braker Professor of Law and a former dean of the Fletcher School of Law and Diplomacy. His latest book is Seven Secrets for Negotiating with Government: How to Deal with Local, State, National, or Foreign Governments—and Still Come Out Ahead (AMACOM Books, 2008).
