Using a CEPH competency in a job I never thought I’d have…applying negotiation skills

Earlier this month I concluded my work as a non-federal negotiator on the US Department of Education’s Accreditation & Innovation Negotiated Rulemaking Committee, negotiating specific federal rules on topics such as accreditor recognition requirements, distance education requirements, and some related federal financial aid issues. In this role, I was one of 15 individuals – and the only one with expertise in specialized accreditation – sitting around a table for 10 hours a day, for a total of 13 days over three months, negotiating agreements about very complicated (and often arcane) policy issues with others who often had vastly different views from my own.

The rulemaking process begins with the USDE offering a proposal for new rules – the negotiation starts from that document. After reviewing the materials, I went into the negotiation with two key issues that were unacceptable to me – and a third that developed further into the negotiation. First, there was a proposal by the Department to eliminate joint use of services (like office space, for example) between accreditors and their affiliated professional associations. While this would not have affected CEPH, this would have put several of my smaller accreditor colleagues out of business. Second, the Department included a significant amount of language that would have made it harder for accrediting agencies to accredit new professional doctorates. Finally, and this emerged as I saw proposals by other negotiators, there was an attempt to limit curricular oversight by accreditors in universities with a religious mission. I was able to successfully negotiate acceptable language on all of these issues – and my MPH program was a big reason why.

During my MPH program, the curriculum was fairly lock step, but students had a choice of several possible one-credit-hour electives. I chose to take a course in negotiation. It was, hands down, one of the most useful courses I have ever taken. We used the text Getting to Yes: Negotiating Agreement without Giving In by Roger Fisher and William Ury from the Harvard Negotiation Project. From that class, I took away three key negotiation principles that got me through this negotiation successfully.

1. Separate the people from the problem – all 15 negotiators came to the table with different values, pressures, and experiences. It is important to focus early on building trust and relationships with the other negotiators, and not ascribing intentions to other negotiators that may or may not be accurate. It is important to listen to others for understanding and attempting to really ‘get’ the needs of others. All of the sessions were live streamed – so certainly there was some grandstanding. Some of the best compromises were worked out during hallway conversations and over lunch when the cameras were off.
   
   
2. Focus on interests, not positions – all of the negotiators, including me, came in with positions. If we all just crossed our arms and said, "nope, it’s my way or the highway," we would have gotten nowhere. Focusing on interests means understanding the underlying reasons that individuals hold positions. What are they really trying to prevent from happening or cause to happen? Why do they feel the way they do about the issue? In our case, the negotiators quickly realized that our interests were not all that different in many cases. This understanding made it easier to come to agreement about the specifics.
   
   
3. Know your BATNA – your BATNA is your “best alternative to a negotiated agreement.” In other words, what is the best possible outcome if we are unable to negotiate an agreement? In our case, the BATNA was terrible. If negotiated rulemaking did not reach consensus in the end, the Department (in conjunction with White House advisors) would get to publish whatever regulations it wanted. We may have even been back to their initial proposal! Remembering our BATNA allowed all parties to give in areas where we could give a little and stay the course in areas where we felt we couldn’t.

In the end, with three minutes to go before our time ran out, the committee came to consensus on all issues – something that hadn’t been done in a USDE negotiation in over a decade. You can learn more, watch recordings, and read materials on the Negotiated Rulemaking website: https://www2.ed.gov/policy/highered/reg/hearulemaking/2018/index.html

 --Written by Laura Rasar King, EdD, MPH