Good Law | Bad Law #97 - Is Trump a master deal-maker or . . . not? W/ David Ross

Aaron Freiwald: Welcome back to Good Law Bad Law. Today we are talking about negotiation. Donald Trump wrote The Art of the Deal and campaigned on being a master dealmaker. Well how good a deal maker is he. How good are his negotiating skills as President. To answer that question I turn to David Ross. He is a senior mediator with JAMS, a lecturer in negotiation at Columbia Law School, and an author of a textbook on negotiating skills. David and I walk through some of the basics of negotiation and then apply them to President Trump to try to understand what kind of a dealmaker is he really. This is a fascinating conversation not one. I think you're going to hear anywhere else about this president. You're not going to want to miss this episode. I hope you'll enjoy, thanks.

 

Aaron Freiwald: During the 2016 campaign for president Donald Trump said that what we need in this country is a leader who wrote The Art of the Deal. The book that Donald Trump famously wrote that really launched his celebrity career many years ago he said in one of the Republican debates quote "I'm a negotiator. I've done very well over the years through negotiation. That's what I do is deals I know deals. I think better than anybody knows deals" he said. Well Donald Trump is now president. He holds himself out still as a master negotiator as a master dealmaker and I thought it would be instructive and interesting and even entertaining to have a real negotiator on Good Law Bad Law and for that reason I've invited David Ross onto the program to talk about negotiation and President Trump's negotiating style. David thanks very much for being on Good Law Bad Law today.

 

David Ross: Good to be here. Thank you for having me.

 

Aaron Freiwald: Well I want to get some background from you David so people know what your own background is as a real negotiator and someone actually who teaches negotiation skills and practices them every day. So give us as we get started here today give us some background on yourself please.

 

David Ross: Sure I'm happy to do that. I was born in Cleveland Ohio. I don't know if that's going too far back or not.

 

Aaron Freiwald: No that's probably important.

 

David Ross: So for those of you in the Midwest or Ohio a shout out. I went to law school in New York NYU Law School and then I went to Cravath Swaine & Moore a corporate law firm in New York City where I litigated for a few years and I realized after a relatively short period of time although those three years felt like longer given the long hours we worked at Cravath that I wanted to help people resolve problems as opposed to as an advocate. Virtually always prolonged those problems, those conflicts. So I went to Columbia Law School I studied with Professor Maurice Rosenberg who since passed. He wrote one of the textbooks on ADR was a real leader in the field and I studied everything that I could at Columbia on negotiation theory on ADR which is as most of us are probably know alternative dispute resolution, mediation and arbitration basically, and got an LLM Columbia and then went to a firm called In Dispute which was started in Cambridge by some folks who at the Harvard Law School and began to focus my career in mediation. In Dispute merged with a firm called Jams based in California. And I've been mediating for the last 20 years or so and I've been teaching negotiation for the past 20 years or so at Columbia Law School.

 

Aaron Freiwald: And so people know ADR or alternative dispute resolution has really come into its own and is in is a central part of litigation. People think of litigation as about lawsuits and fighting all the time. But really the goal in most civil lawsuits is to eventually be in a position to resolve those cases and those disputes and mediators through alternative dispute resolution mediation mainly but also different kinds of arbitration has become such a key factor in that. And we for instance in my practice we use mediation quite often and Jams the company that you're now a senior mediator with is one of the big firms here in Philadelphia that we turn to very often for help in resolving cases so it's a this is not a peripheral part of the law. This is a very central core part of the law. These days isn't that right.

 

David Ross: I think that's exactly right. And what most lawyers know but probably most non lawyers may not know is that 97 percent 98 percent of all potential or actual litigations end up resolving themselves either through direct negotiation between the lawyers or if they are unable to resolve it for a variety of reasons through the services of a neutral mediator who comes in and basically facilitates the negotiation process and helps parties resolve litigation and conflict when the lawyers try to but for a variety of reasons are unable to do so directly. So the short answer is yes it's been here for a while and it's growing.

 

Aaron Freiwald: And again you know I think a lot of people who watch courtroom dramas on TV and see lawyers you know involved in you know disputing and arguing and fighting and advocating perhaps don't appreciate what we know from the day to day of what we do. That negotiation is a huge part of everything that we do leading up to the courtroom and even in the courtroom where we're staking out a position where we're interested in how the other side perceives us and our arguments. We're often negotiating with the court in how we hold ourselves out and hold out our client's position. So I've always thought that negotiation is is really a huge part of litigation of lawyering in one way or another. And you know to understand how this president who again holds himself out and you know really congratulates himself as being a master negotiator. You know we have to I think start with some first principles. And you know David I know from looking at your background you've written a textbook on negotiation. You have taught lawyers and law students. You are involved at Columbia Law School and teaching the art and skills of negotiation and with Jams you practice negotiation all the time in real cases so could you give us some of the core principles that anyone whether in law or in business or in other you know interactions where negotiation becomes important. What are some of the core basics of negotiation skills that people would want to understand.

 

David Ross: Sure. That's a big question but I will try to break it down and.

 

Aaron Freiwald: I'm asking a course in a few minutes.

 

David Ross: Ok. I'm sure everyone has registered and is going to pay the pay the fee. That's a joke I know that's not going to happen so I will I will be simple about it. Negotiation in the end is a communication process. 70 percent or so of all communication is nonverbal and most people don't realize that lawyers in particular are very focused on the words they use and the tactics and strategies they employ. But in the end the negotiation is very simply a communication process. It's an attempt to persuade to influence another party or parties to again being simple but accurate to get what they want. So good negotiators will go into a negotiation sit down at the negotiation table understanding if they're negotiating as a principal what their interests are what's important to them and how they prioritize those interests. And if they're a lawyer representing a client obviously understanding what their client's interests are what they want to get at the negotiating table and being very concrete with the table a lot of negotiations now take place over Skype by telephone by e-mail so I'm using that as a euphemism for simply individuals communicating with each other somehow. So the lawyer needs to know the client's interests what they want and what the priorities are and then they try to advance those interests and meet those interests again at the negotiation table. So getting what you want from others is not a bad definition for negotiation.

 

Aaron Freiwald: One of the things I know David when I'm talking to my clients throughout the representation the beginning meeting with a client as we go along through the life of a lawsuit as we're getting ready for a mediation or some type of settlement discussion or as we're getting ready for trial as many of my cases are prepared for the courtroom. One of the things that I always talk about is the concept of risk. You know you've defined admittedly we're talking in the very most A.B.C. way of talking about these things basics but how important is the idea of understanding risk to negotiation.

 

David Ross: Hugely important. And as you know as I'm sure you explain to your clients there are different types of risks there are money risks what the cost would be for example to continue to litigate an action as opposed to settling today or soon. Reputational risk. When you litigate obviously that matter is going public a lot of the work I do is in the employment discrimination arena harassment arena and so quite obviously issues involved there are ones that both the would be plaintiffs and would be defendants often prefer to try to discuss and resolve privately and confidentially. But the short answer to your question is that risk is important and I'll share an acronym that I rarely rarely say other than in my classroom. But I also use it when I mediate. Which is BATNA, B.A.T.N.A that stands for Best Alternative to a Negotiated Agreement. And you probably know that term and implicit in your conversations or explicit with your clients. But it really is a hard conversation you have with your clients confidentially before for negotiation. Listen Mr. Smith or Mrs. Smith. I'll do my best to try to accomplish what you want to accomplish here. But it's important for you to appreciate to really appreciate what the risks are and what is the best alternative what is likely to happen. If we can't we can't resolve this.

 

Aaron Freiwald: So in a litigation that could be the risk of going to trial for example would be probably one of the more common alternatives to a negotiated resolution. Right.

 

David Ross: That's right. That's the fundamental one. And then there are risks that that relate to that. And you know I will often say we're at a fork in the road you're either going to do mediation go down the settlement path and resolve this and that may or may not happen it may or may not be in your interests but you're here or the other road is the litigation road And let's talk about what that looks like.

 

Aaron Freiwald: I think probably most people have. They may not realize it but most people have been involved in negotiating something at some point in their lives whether it's buying a car buying a house or you know negotiating terms of employment for instance. But many people have had that kind of experience even if they don't necessarily think of it as negotiation. And I imagine that when people do think about what is the art of negotiation what is the art of the deal in all these different contexts probably what most people think is I should aim high in order to be prepared to come down to some real numbers from selling my car and I want to sell it for a thousand dollars. You know I should ask two thousand dollars so that I have some room to negotiate. And I mean that is a feature of negotiation to aim high so to speak. But what are some other considerations that ought to be taken into account in the most basic sense when thinking about negotiation.

 

David Ross: Well first I want to emphasize something you said early on in your question people negotiate every single day they negotiate multiple times every day when it's Saturday night and I want to see Mission Impossible 3 and Laura wants to see another movie Laura's my wife a negotiation happens. And we in our own ways and our relationship find a way to persuade the other person to go to the movie that we want to see to get what we want. That usually works out. Not always but that's a different conversation. In terms of your observation that when you're buying a used car or any other or doing any sort of deal that involves money or some form of currency to see aiming high is something that negotiators need to do. There's research that shows that aiming high not too high but high is a very helpful strategy in claiming more value and doing better with the final deal. A max of negotiation is that your opening offer for example should be optimistic which means high specific so it's understood by the person or persons across the table and justifiable that you come in ready to justify to explain it in a persuasive way not a heavy handed way why your opening offer is reasonable and should be perceived that way. So those are just two quick thoughts on that and I will be candid. I forgot the end of your question which was your real question if you repeat. I'll try to answer it.

 

Aaron Freiwald: Well. What are some other other considerations when thinking about the basic positions you want to take in a negotiation. One is I mean I think you clarified the idea of aiming high. You have to first of all you can't come in too high. You. You might find the negotiation over before you've even started.

 

David Ross: Yeah. That's rare. People do fear that risk it's rare that people walk away from the table unless the offer is so high and so you know if you will use a non negotiation term are crazy and then someone might walk away from the table or at least threaten to because they feel as though you're not there in good faith and you won't be. You know that you're an idiot you don't know what you're talking about and therefore there's no reason to have this conversation it's a waste of time. But usually what happens before a walk away is a warning of a walk away which gives you a chance frankly to make a choice whether to reel back on that high initial offer to try to ensure that person stays at the table so in my experience the risk of the walk away particularly early on is a bit overstated. My prescriptive thought would be not to be too fearful of that I'm aware it's a risk but not not to overstate it because it might compromise your ability to make a good assertive aggressive opening offer.

 

Aaron Freiwald: Now David you brought up the term crazy and I'm going to jump off on that.

 

David Ross: Good it's my favorite word.

 

Aaron Freiwald: Yeah. And people might think that I intend immediately to turn back to the subject of Donald Trump but no I want before we get there actually have an I have something that may be may give us a better segue to talking about the president and what we think of his negotiating style and the success of his negotiations. But I had a lawyer very early in my career say to me a senior lawyer in a very successful lawyer by the way say to me in thinking about talking with an adversary and talking about how to present yourself to the other side in a negotiation he said to me you know sometimes it's ok if they think you're a little crazy and what do you think of that.

 

David Ross: I love it. I think it's right. What was your understanding of what he or she meant by that.

 

Aaron Freiwald: Well it could not necessarily limited to how you position yourself in monetary terms. I mean you know simple negotiation would be I have a litigation it could be I have a car to sell. Does it matter really and you do name a price a starting price that is so high that the person says that's just crazy. What would you come up with such a big number like that but it doesn't have to only mean that it could be also in the way you conduct yourself in dealing with the other person. You know you may storm out of the room very dramatic you know for effect in the right moment and things like that that the other side might think oh my god that guy is just a little off.

 

David Ross: Yeah. So let's let's break that down deconstruct both those examples so we really understand what crazy means because there's there is meaning if you take the time to unpack the word crazy as we're using it in this context. So with a used car and in the high demand let's say from the owner of a car who's selling it and let's say using your example the owner makes an extremely high demand car's worth at most 20000 and the owner asked for 30000 40000.

 

Aaron Freiwald: Right.

 

David Ross: And let's assume that that is a purposeful intentional tactic because the best negotiators are deliberate. They're careful they're prepared they're planning what they do sometimes based on intuition and instinct what they do particularly with an opening offer is planned out. So the signal that buyer is trying to send Aaron is a signal that he is trying to make the the person who's going to buy the car perceive the sellers reservation value. In other words the least amount of money that person will sell the car for maybe 20000 try to inflate that human being. That person's perception of the seller's reservation value what is called The Bottom Line his or her bottom line. Right. So it is crazy in a sense as extreme or as we would call it a negotiation it's close to the insult zone. The person feels insulted by it which by the way sometimes a helpful tactic to is to insult them not personally but with a number and is trying to shift their perception of what your bottom line is and therefore shift the negotiating zone in your direction. That is true that's often used as anchor. And anchor them to your high number. So they've got to then respond. Does that make sense.

 

Aaron Freiwald: Yes absolutely. And well and I think that does lead now to try to apply some of the things we've talked about to the president. And there was and maybe this is a way to get into this and I know you have looked at President Trump as a negotiator. And and you have some strong views on that which which I'm hoping you'll you'll be you'll share with us in a strong way I know you hold that. But I was looking to get ready for our conversation today. There was an article in Axios a few months ago that actually talks about Donald Trump as a negotiator. And we've seen him in a lot of you know in a lot of circumstances whether it's the border wall and what he was going to do to get Mexico to pay for it or dealings with Vladimir Putin or the North Korean dictator in varying situations. NAFTA renegotiating that. We've seen him work in a lot of situations and what's described in this Axios article as his style is to threaten the outrageous. To ratchet up tension and then amplify that with tweets and taunts and then ultimately try to through those tactics to get the person who he's trying to deal with to what ends up being a fairly conventional middle ground position. That bottom line position but that he seems to be gambling on that he seems to be holding himself out as really being all about if you will is that he can stand to be in an uncomfortable place longer than you can. And that becomes in effect his his his crazy in a way.

 

David Ross: I agree with everything you've just said. At one point you use the term middle ground.

 

Aaron Freiwald: Yeah.

 

David Ross: And to loop back to your point about the high opening offer for a used car and some of my comments on that about shifting the bargaining range. By being extreme by threatening extreme actions by intimidating by trying to create a perception which may be the reality that he doesn't care about the outcome he doesn't care if you do a deal. He is effectively trying to shift the bargaining zone in his direction. So he wants what he wants which is ABC the other party whether it's Pelosi and Schumer talking about immigration or foreign dictator or like Kim Jong Un he's trying to through his words and his actions his demeanor his tone his craziness as we've kind of created this umbrella concept tried to shift the bargaining zone in his direction so that middle ground isn't what it was before he tweeted taunted and shared his perspective that he doesn't care what happens here. The middle ground has shifted in his direction towards his goals his priorities his interests. We often hear that the phrase I don't think about have much but those football fans out there moving the goalposts.

 

Aaron Freiwald: Yeah.

 

David Ross: So midfield is now the 20 yard line. And I will comment now on his effectiveness. I would just suggest that is it's important to step back and realize that is what he is attempting to do with the various techniques and tactics you are articulating.

 

Aaron Freiwald: Well what are what are some of the other negotiating tactics that you see from the president again. I mean he did have some success at least early in his real estate career in his business career. I think most people look at some of the big deals he did early on the Trump Tower deal and there was a big real estate deal involving an old hotel connected to Grand Central Station in New York City. I don't know how much real success he had as a dealmaker. A lot of people question you no question his success and wonder whether it's really overinflated. But but clearly he had some fairly high stakes dealings as a real estate developer and that really can't be argued with. But what have you seen observing the president in action as he's as he's tried to get his footing as president. What have you seen and observed about his negotiating style and his negotiating tactics since he's been in office.

 

David Ross: Sure. So first full disclosure I'm a Democrat. I have voted Republican. Do not like this president. I have concerns about him. We won't go down that path. But you know I might as well just be honest. I very much respect other people's perspectives on this president and believe in those conversations and healthy dialogue and respect different political views. Secondly I am I was I was born in Cleveland Ohio as I mentioned I live in New York and I've been there for about 30 years. I know Trump just from tabloids and the newspapers. I'm familiar with him and his career and life like we all are to some extent now. I think that the best way to think about Donald Trump as a negotiator is number one just to acknowledge the fact that he does have some skills that he has had some successes. And I think to argue otherwise is you know just a little silly and untrue.

 

Aaron Freiwald: Right. That's why I wanted to say that upfront too. I think that's important.

 

David Ross: I think it's important and frankly he negotiated himself to the presidency. There was a lot of negotiation involved he had to negotiate with voters. How he messaged he had to negotiate when he was debating with not just the moderator but with all the other candidates he knocked down you know like a bowling ally whatever was 12 of them whatever the number was knocked them all down. And he is where he is. So I'm glad that we're agreeing on that because he definitely has some skills and has had some successes. I think the best way to think about it at least one way to think about it is do to the skills the tactics and strategies that he used as a real estate developer himself promoter. How do those translate to the office of the presidency. And I think without doing a full analysis because that would take a long time I think the short answer is not particularly well. If I had to give him a grade for his negotiating to date it probably be trying to be neutral about it as a teacher would the a C minus maybe a D plus maybe a solid C I don't see him in the B range. And the reason Aaron is that in a negotiation negotiation is all about process all about the communication process it's about explaining what your positions and interests are advancing them and getting as much as you can based on what you have decided you want. If that process leads to outcome. So as the day you look at it deal and you based on what's been accomplished in that deal you judge how well you've negotiated. If you look at Trump in just a couple of issues off top of my head. Health care. He tried to get that overturned. McCain gave his famous thumbs down so that's an F his goal was to get it overturned. He didn't. He tried to repeal, he didn't. So that that is an F. Immigration is probably an F because nothing, there is no outcome that nothing has changed there's been no deal. They've come close but for a variety reasons apparently it just it just couldn't happen. Building the wall you mentioned so that was a campaign promise. He hasn't fulfilled that promise he's made some tangential and misleading arguments about bolstering the wall he put up a larger picket fence somewhere or some barbed wire or something. But the short of it is he hasn't built the wall and Mexico hasn't paid a penny as far as I know. So that's an F.

 

Aaron Freiwald: Well hold on. Let's let's pause on immigration just for a second. Let me push.

 

David Ross: Not my specialty.

 

Aaron Freiwald: Yeah yeah. And so and we can talk about this in negotiating terms too right. There is in a complex negotiation this isn't this isn't a you know a straight line. When we talk about immigration. So one that one goal might very well be the border wall itself. You could think of the goal as being some comprehensive immigration reform legislation that could be another goal another goal could be you know changing the way we talk about immigration in this country changing that dynamic. You know getting people's attention focused on the issue in a particular way. And you know or another goal might be simply reducing the number of illegals crossing the border. So how do you I mean how do you look at an issue like that which is very complex, has a lot of moving parts. Perhaps it's not fair to simply say well hey he didn't get any dollars yet for the border wall so on immigration it's an F.

 

David Ross: It's a fair point and I appreciate you taking the conversation to a more nuanced level I was obviously working on it a a more middle level. And I also really appreciate the fact that you know you are talking about the negotiation of this big complex difficult issue in terms of goals. Because at the beginning of our conversation I tried to be clear about how a negotiator needs to be clear with himself or herself about what his or her goals are. And then of course judge success by how fully that person accomplishes those goals through the communication, negotiation process. So I think that that is very helpful that you're framing it that way. Yes. So on immigration I think you're suggesting that I graded him too harshly with the F that part of your bottom line that you are.

 

Aaron Freiwald: Well look I'm not I'm not advocating or defending for the for the president on this issue. I'm just trying to understand when we think of him as a negotiator. And what are the skills. You know maybe one of the problems in evaluating his negotiating success on immigration to pick up on your point is it's really not very clear what his goals are.

 

David Ross: Yeah.

 

Aaron Freiwald: Right. I mean if if what people heard during the campaign was I'm going to build that wall. They're going to pay for it then yeah that's probably an F because that has clearly hasn't happened yet and I think more than one Mexican president said to hell with you, we're not going to pay any of that. But I think there's more to it and it's maybe an opportunity to think about negotiation in a very complex deal like this... differently.

 

David Ross: I agree with you 100 percent. I think we're agreeing on the building the wall which was a specific promise to build a wall across the whole border. Can't get over that wall can't get through that wall phenomenal thick wall of Great Wall fantastic free wall just like that everywhere like that. Well I don't know about that but that was the promise the clear promise. So now I give him an F. With respect to immigration. You're right it's more complicated. And I guess you know what I would say. I want to say the very kind of neutral way cause it would apply to any president. And I'll be simple about it. Immigration is a problem. The left and the right agree that it's a problem. It's in need of a solution that is bipartisan enough that it gets passed by the House and the Senate and it becomes law and is a is a solution will never be perfect but it is passed into law. So if the ultimate goal if you will is a comprehensive immigration bill that addresses all the problems immigration law that addresses all or most of the problems that everyone agrees relate to the immigration issue. He has not been able to accomplish that. Now Obama couldn't George Bush George W. Bush couldn't. So I'm not saying it's not easy I'm not saying he's a terrible president because he couldn't do that. I'm just saying he hasn't done a deal on that and I will also say you may remember more than I do about this. As I recall they came very close. This was four five or six months ago. Apparently Schumer and Pelosi, if you believe the news and I still do. Were in his office. They were talking about an immigration deal and they were actually were under the impression that they had a deal, this  Pelosi and Schumer not advocating for them but I do believe the news and they came out and said that they believe there was a deal. Don't think it was a political maneuver our negotiation tactic. That deal ended up you know they misunderstood it misperceiving which seems unlikely but possible or for some reason Trump decided to change his mind about that. I'll make a small political point here Aaron that you can pick up on a run with or ignore. One of Trumps fundamental goals from day one has been to please his base to satisfy and I would just suggest, in a very light way that one of the primary reasons he has been unable to do other deals on health care, immigration, NAFTA, building relationships with allies, other examples, has been because he feels an understandable need. It's the right priority? But it's a priority for him to maintain that base because without that obviously a lot of a lot of the cards in the House of Cards fall down.

 

Aaron Freiwald: Well I think that is an interesting point. I was thinking about something I think similar to that is we've been talking which is related to something else I've read about his negotiating style. This was in an article in Politico recently where a gentleman named Jack O'Donnell who is a former Trump casino executive who had some experience negotiating for Donald Trump and actually you also watched Trump negotiate a lot of deals. He said this about his negotiating style quote "He will say anything to keep people thinking that they're going to wind up doing a deal that's good for them. He gets people to believe or tries to get people to believe that they're going to get a really good deal even though he's obviously only concerned about getting a good deal for himself." If you know people have said versions of that statement in varying ways some complimentary of Trump and some very much not complimentary of Trump. You know that he's he's only interested in himself his reputation his image what's good for him. You know many people thought he was running for president very cynically. Who knows maybe truly to advance his business interests and not because he so much wanted to be president. But but looking again at this from a negotiating perspective as an evaluation of him as negotiator what do you think about that as a negotiating style or tactic that you want to try to persuade somebody the people that you are hoping will be your supporters or the adversary at the other end of the table that you are interested in making them a good deal even though obviously what you're really interested in is making a good deal for yourself.

 

David Ross: Well I'm glad that you raised this issue and shared that quote. The short answer is that if he does that then that is a very sophisticated and can be very effective and persuasive strategy to find ways to persuade the person or persons across the table that the deal terms that you're proposing are in fact in that person's interests to craft arguments and to advocate to explain and maybe to charm a bit. It takes a charming person to do that is a very sophisticated and very effective way to get good deals for yourself. So if he does that I was not I've never been in the room where it happened. I have not been in the room with when he's negotiating. But it sounds like he does that and if he does it can be quite effective.

 

Aaron Freiwald: Well I mean we've and I have neither obviously but we you know we've observed things that look like some of the things that we've been talking about. I mean some of the things for instance he said to the North Korean dictator Kim Jong Un promising that a deal with the U.S. would be really good for North Korea that North Korea would prosper and there'd be business and all kinds of opportunities for them kind of as an example it seems of making at least striving to make the other person think that a deal is going to be good for them. Other times he's done things that you just say that just looks crazy. You know what he did at the European Union meetings this summer. You know attacking or seeming to attack our friends and allies in Europe acting like he's going to. You know start a trade in fact starting a trade war with China. If that leads to a better deal someday we'll I guess we'll see but versions of these things that we've been talking about seem to be the ways he's conducting himself in a variety of different contexts. And so I guess how do you judge those things. Or do you think we just have to wait and see.

 

David Ross: Well to some extent we have to wait and see. But your example of Kim Jong Un is really quite interesting to me as I'm thinking about it. Earlier we talked about how the techniques and tactics and strategies that Trump may have used are used in the private realm, when he was building buildings. How that translates to the public realm or doesn't translate. And again I'm suggesting it doesn't translate particularly well here's a nice example. I think it's hard to make the case that Trump would be as persuasive or is as persuasive when he is turning on his charm in a private conference room maybe in one of his buildings with a person who he has read pretty well and gotten to know and created some kind of immediate rapport even if it is not real but a sense of rapport way in a private room in a private setting confidentially one on one shaking his or her hand and whatever he's doing. That when it's put on a public stage with a dictator from a foreign country and put into all the different news media and heard and read by millions of people really it comes across I think it's really quite small and still I don't want to say idiotic just not effective. So what he's saying you know again with this public loudspeaker it would be in his interest. It's so good for him your country the more beautiful you will be even more wonderful and powerful. The sophistry is just sort of screams at you. So that technique and tactic while it might be quite effective when he's you know building a casino or are renovating a condo building doesn't translate well on the public stage for an American president.

 

Aaron Freiwald: Well I guess you know I'm wondering and again this isn't by way of you know advocating for or against him but just thinking about some of the things that we've seen and thinking about whether they translate to other contexts where we've seen you especially have seen negotiations. I'm wondering you know in a mediation for example where you have adversaries and the mediator at the table at the same time I can imagine a situation where I for instance in the role of representing my client might speak a certain way to my adversary across the table. But then in a private meeting later with you as a mediator might speak very differently. All part of the negotiation all part of trying to get to my goal in a particular deal. I may conduct myself speak in a certain way even use body language and you made the point how important non-verbal communication may be. I may conduct myself very differently to different interests in a same who are part of the same deal.

 

David Ross: Excellent points and I would go further and say not just that they may behave differently or speak differently words used tone, body language, articulated positions, and bottom lines and what they need. But I would say almost virtually always will. So I'm really just amplifing your good points. And the reason for that the fundamental reason for that again comes back to this idea of perceptions. Adversaries are trying to manipulate with a small and it's not pejorative manipulate influence the perception of the person or persons across the table in terms of how much they need and they want them to believe much like Trump does sometimes quite effectively that they need more than they actually do. Why. Because if the other party or parties believe that then to do a deal they're going to be under the impression or misimpression that they have to give that party more or that it in order to get them to yes, in order for them to say yes to certain terms or conditions of a deal as a whole. So once you go into a private session or what's called a caucus with the mediator. Well it doesn't disappear doesn't disappear it dissipates and the lawyers and their clients feel more comfortable in their confidential setting with a neutral person myself or one of my colleagues at JAMS, a mediator. Sharing what they really want and need sharing what their real interests or priorities are. I'm frankly just getting more to the truth of it. And then that allows me to do my job to find a way that as you pointed out find that middle ground or close to that middle ground that can work for both parties because my goal is to get the parties to a deal. That's the ultimate litmus test I've go to run a fair neutral process obviously not do that. But they come in they want it out and get to a deal. Does that answer your question.

 

Aaron Freiwald: Yeah it does. And you know we're maybe maybe I'm straining too much here to try to find ways to look at the president and what he does in ways that apply in the in the other contexts in the real world so to speak of negotiation because there are obviously a lot of things that are so confounding about the way he handles himself. I think still to this day you know he'll say something or tweet something and most of us will say oh my God no he didn't just do that or say that. And you know a lawyer or business person in a negotiation in the real world wouldn't probably think that it was okay to say anything as it's been said about Trump to say anything. No matter how outrageous as part of an actual negotiating strategy I don't think I'd get away with that or get too far with that in my practice. But but he does. And that's just you know we just shake our heads and wonder how does he do that.

 

David Ross: So he is an extraordinary, exceptional, intriguing, fascinating, confounding although interestingly quite consistent in terms of his actions and the language he used as a human being. I purposely chose a lot of neutral words. I believe those I believe he is a fascinating, intriguing person.

 

Aaron Freiwald: Right.

 

David Ross: Some of the tools he uses some of the strategies some of the language you're not comfortable using. I wouldn't be comfortable using. Most people are not comfortable using he is comfortable using not just in private but in a hugely public way, can't be more public than what a president says and does and in a way that is transcribed. So there is a history in history of what he's saying and doing. Most of us are very conscious of that. So we're careful in what we say and do and we have certainly have different codes about how we treat people in language we use. And that helps society function in a way that makes it manageable and safe. He does not have those restraints for a whole variety of reasons beyond the scope of our conversation. He doesn't seem to have those restraints and frankly put yourself in his shoes at this point. Although things could change.

 

Aaron Freiwald: Yes right.

 

David Ross: He is probably thinking well you know it's worked so far.

 

Aaron Freiwald: Exactly.

 

David Ross: I have a beautiful wife. Let's put aside the status of that relationship and the intimacy there. The beautiful wife it seems that I have a billion dollars or more I'm not sure about that. Let's say he has a lot of money more than most. I'm President. That's a lot of power. So that's good. So fame, power, money,status. An intelligent, attractive wife. I've got some children it's important to some people got some kids I can procreate. So he's probably thinking well things are working out pretty good for me so far.

 

Aaron Freiwald: And particularly to him although there might be some in his party and Congress who grumble over still grumbling over a tweet here or comment there. You know you mentioned his base earlier. A lot of those people like the fact that he speaks the way he does that he's outrageous in some of the ways he's outrageous. He doesn't seem to care that he is going to say what he thinks in the moment he thinks it. And as long as he's pushing for you know what people think might be the good of the country they just don't care. I mean I wouldn't be able to get away with it. And what I do and you wouldn't either there but there are a lot of people who elected him precisely because they thought that is what he was going to do and the way he would be he would behave.

 

David Ross: Yes

 

Aaron Freiwald: Well let's see how it's working for him in three months or a year. But so far.

 

David Ross: For him so far you know it's pretty pretty pretty good so far pretty pretty pretty good. This idea of whether or not Trump has charisma is linked to the concept that perception of authenticity that many people and I'm not judging or diminishing because it's for many many people across demographics across socioeconomic lines they perceive somebody who goes off script or appears to go off script somebody who shows emotion which he does. Who is unafraid to say words it may not be politically correct they process that they interpret that. And again I'll go back to the point about body language, ton,e energy, non-verbal cues, they interpret that as honesty or as authenticity and.

 

Aaron Freiwald: Authenticity for sure. Yeah.

 

David Ross: Yes. Authenticity. He is who he is. You know people say it's a big defense for him you know. It's just Trump being Trump. We won't go deep on that one. But it seems to be a fail safe for a lot of people and voters average voters. Again I mean that across party lines across all on average voters do like to vote for people support people who they believe they know and who they believe are telling are being authentic. It's very endearing and attractive to people. And he's good at creating that perception of authenticity. I think in the end you can make the case it's quite the opposite. And this is one of the greatest shell games and longest running shell games in the history the presidency. But you know when all the walnuts are up let's see where the ball is. And every magician's show at some point you know comes to an end. But we'll see.

 

Aaron Freiwald: Right. You're right. That is what we have to see. You know we started when we started talking about principles of negotiation and how you formulate an initial offer. One of the things you mentioned and I have certainly found this in my dealings over the years is you have to be able to justify your position in some way even if it's even if you're off making an initial offer that seems very high you ought to have some rational way of explaining your position. And I think authenticity is really important. But I also think credibility is really important and that's maybe the clash here we see with President Trump is he certainly is authentic but at what point in negotiating whether with a foreign leader or with an ally or with his own supporters. Does credibility just you know undo undo him. And you know I think we don't know yet.

 

David Ross: Phenomenal point. I'm so glad you raised this really important concept of credibility. And we don't know yet. I think you could make the case that over time he is eroding his credibility with certain constituencies perhaps not his base yet. But I think I think in my experience as a mediator and teaching this for 20 years credibility for a lawyer negotiator or in anyone negotiating for themselves particularly if they're going to be repeated interactions and run a long long term relationships specifically if you're going to work with them again. Credibility is the hallmark of the effective negotiator over the long term. And you know much like a sugar big sugar cube will call that Trump for a moment. There's enough water that drops on that sugar cube the sugar cube sort of becomes smaller and smaller and begins to crack and crumble. And you know I like that metaphor but I'm not going on about it. That could be what's happening here.

 

Aaron Freiwald: Well listen, as you said a fascinating person in Trump fascinating time we're living in. And this was a fascinating conversation and one that I think is a very different take and perspective on what what's going on in the world today. And so thank you David Ross for being on the program and helping us understand some of what we're seeing from the perspective you bring and  just thank you very much. It's been a pleasure.

 

David Ross: My pleasure as well thank you for having me. And I really appreciate the opportunity, it was a lot of fun.