Every decade, it seems, our orchestra industry decides to argue about a different issue.
In the 1960s, musicians and their employers were arguing about whether orchestras should provide full-time employment. In the early 1990s, we were arguing about the Wolf Report 1 and whether its projections about orchestra finances were realistic. In recent years, we have achieved the ultimate post-modern irony: arguing about the mechanism we use to argue.
The publication of Getting to Yes in 19812 was a seminal event in the field of labor relations. As often happens, it took some time for the impact of this milestone to migrate to the orchestra world, but by the mid-1990s many musicians had heard something about a new bargaining technique called “interest-based bargaining” (a.k.a. “mutual-gains bargaining,” “integrative bargaining,” “preventive mediation,” “win-win bargaining,” “facilitated negotiations,” or more generically as non-traditional bargaining). While proponents of non-traditional bargaining differ over details of technique, generally they emphasize several common principles: focusing on underlying interests rather than negotiating positions; careful (or “active”) listening as opposed to aggressive advocacy; and open discussion and brainstorming by all participants rather than the formal exchange and rejection or acceptance of proposals at the bargaining table.
Non-traditional bargaining has become politically incorrect with many musicians who are concerned with labor issues. Mention of IBB at meetings of musicians is invariably greeted with grumbling or even catcalls. When the International Conference of Symphony and Opera Musicians (ICSOM) and the Managers’ Media Committee started the Electronic Media Forum (EMF) in 1999 and began to negotiate what became the Internet Agreement, the union-side members of the EMF felt compelled to deny constantly and vociferously to their constituents that they were engaged in interest-based bargaining precisely because the term was so “loaded”—even though the EMF process was unquestionably not “traditional” bargaining, and in many ways resembled IBB quite closely.
So why has IBB become a dirty word amongst many musicians active in labor issues? Four categories of reasons stand out to this writer: resistance to change; concerns about the effects of IBB on union solidarity; a belief that in practice, IBB is not truly collaborative; and a correlation between IBB and what musicians see as negative outcomes.
One of our family jokes is that our teenaged son, Sam, has two guiding principles: 1) change is bad, and 2) never do anything for the first time. (He has not ordered anything but grilled cheese and fries when eating out for at least a decade.)
Sam is not alone in his aversion to change; people and institutions generally only do things differently when there is no alternative. And, at least in economic terms, traditional bargaining has worked for musicians (the occasional disasters notwithstanding). Most orchestra musicians are far better off economically than they were four decades ago, before they took over the negotiating process from their local unions and began to use traditional bargaining more aggressively. Even orchestral institutions are better off in many ways than before orchestra labor negotiations became so confrontational: Certainly the number of orchestras that play at a very high level has grown by leaps and bounds over the past 40 years, as have the number of performances of great music, educational programs, and listeners.
Over time, any way of doing business creates both those who believe in it and those who benefit from it. Musicians are not the only ones who have benefited from traditional labor bargaining. There is a small but influential community of support personnel (union officers, as well as staffers and attorneys on both sides of the table) who have devoted many years to making the system work. Their understanding of the “old ways” is strong, as is their commitment to them. For them, the idea of abandoning tradition and moving to a negotiating process that is, at best, unfamiliar—and, at worst, doesn’t require their services—is understandably hard to embrace.
Ironically, some of those support personnel who criticize IBB also argue that they use its basic concepts (focus on interests, brainstorming, and the like) while bargaining in a more traditional way. And they’re right. An off-the-record session between two experienced negotiators who work well together can be very like interest-based bargaining. I have sometimes explained IBB as being the equivalent of a “sidebar” at which everyone on both sides is present and participates.
Those musicians who have devoted many unpaid hours over the years to negotiating and administering contracts can share that reluctance to embrace non-traditional bargaining. Orchestras are, after all, hotbeds of tradition. We play the same instruments that have been used in orchestras for decades. We perform largely the same repertoire as did our distant predecessors, we wear uniforms last seen outside the concert hall before World War II, and we work for conductors who remain nostalgic for the Golden Age of feudalism. When it comes to the most important economic event in our collective lives, a certain conservatism is inevitable and even wise. Moreover, volunteer labor activists within orchestras have made a significant investment of time and energy learning how to negotiate in traditional ways. Reluctance to relearn the process is no more irrational than reluctance to alter how one plays the instrument simply because it might provide some theoretical advantages.
Concerns about the Process
It would be unfair to suggest that the opposition to IBB comes simply from a stubborn refusal to be dragged into the 21st century. There are substantive theoretical objections to IBB, while the underlying concepts can seem counterintuitive to musicians who understand the economics of their institutions.
The theoretical objections focus on the effects that IBB can have on committee unity and bargaining-unit solidarity. In traditional bargaining, while the union side negotiating team should engage in open and active discussion during caucuses, it is unwise for members of the negotiating committee to do anything at the bargaining table but support the line being taken by the lead negotiator, so that ideas aren’t floated by individuals that the committee hasn’t considered, might not like, and might find very hard to withdraw once proposed. IBB, on the other hand, depends to a great extent on the free and uninhibited exchange of ideas with the other side, no matter how seemingly wacky or unpopular with one’s own colleagues.
Even more objectionable for many musicians are techniques and procedures sometimes taught as part of IBB. That caucuses should be avoided, committees not communicate with their constituents during negotiations, formal notes not be taken, and third-party neutral facilitators rather than lead negotiators determine the direction of discussions can be problematic concepts for negotiating committees concerned with truly representing and informing those who elected them. But, problematic or not, they are only techniques, and not the concepts at the core of IBB. A rejection of IBB because it supposedly bans caucuses or note-taking is like not programming a work because the score is covered with the last music director’s scribbles; it mistakes sizzle for steak. In both cases, an eraser is a better solution than is a trash can.
Musicians’ long professional experience of interdependency and teamwork undoubtedly reinforces the traditional union principles of solidarity. But emphasis on committee discipline also comes from an unspoken fear that managers are better negotiators than musicians. In response, musicians have fetishized the role and importance of the professional negotiator, sometimes to the extent of the committee abdicating its leadership role. It may even be that musicians, conditioned every day of their working lives to follow the lead of an expert both figuratively and literally placed on a pedestal in front of them, are more comfortable with following the lead of the professional “expert” than is always wise.
None of this means that professional negotiators have nothing to offer. I have worked with some superb professional negotiators and deeply respect their skill and what they have achieved historically. But even the best negotiators can’t alter the economic realities underlying a negotiation.
Some in the union community believe that the bargaining process needs to be seen by the rank-and-file as confrontational in order to prepare them for a possible work stoppage or an unsatisfactory settlement. (“I don’t like the deal, but at least the committee fought like junkyard dogs for us.”) Few settlements are met with complete and universal happiness by everyone in the orchestra, after all. One easy way to defend a settlement to unhappy colleagues is to point to all the shouting that went on at the table. Consequently, the attachment to confrontation as a guarantor of the best possible outcome can run very deep. (This may well be a form of what’s known in negotiating theory as “buyer’s remorse,” wherein even a good outcome can seem undesirable if it is reached too easily or quickly.)
Most importantly, experienced musician activists can have genuine difficulty believing that, at least when it comes to compensation, it’s really possible to work the fundamental IBB magic of “growing the pie.” Orchestras do not generally suffer from a lack of productivity or a failure to maximize revenue. It’s very hard for musicians to believe that anything they agree to do— whether making recordings, working more services, doing community-engagement activities, or helping with fund raising—is really going to increase the institution’s income enough for management to share it with them. When managements tell musicians how badly things are going economically (which often happens in negotiations), it simply makes musicians more skeptical, both about “pie growing” and about management’s competence. In the absence of a bigger pie, negotiations can quickly revert to the classic zero-sum distributional model (i.e., “what you win, I lose”). And because compensation is always a core issue in orchestral negotiations, musicians thus come to view IBB as simply irrelevant. As a result, they also see management’s desire to try non-traditional bargaining as highly suspect.
Walking the Talk
I once witnessed a negotiating meeting where the management team proposed IBB, described how they wanted the process to work over the next few months, and renamed the negotiation committee (enlarged to include themselves) the “Contract Renewal Team.” Needless to say, the orchestra committee experienced considerable cognitive dissonance at having a cooperative methodology dictated to them by management, and the meeting quickly and predictably proceeded to the meltdown phase.
Non-traditional bargaining is hard. It’s hard for musicians, who have been trained to be disciplined committee members, to back up their lead negotiator, to make proposals only after democratic deliberations within their own caucus, and to regard skeptically anything management says. It’s equally hard for managers, who have been trained to make decisions and not proposals, who have been told that they know how to run orchestras while musicians (and board members) don’t, and who wouldn’t be running orchestras in the first place if they didn’t feel a strong urge to control events.
IBB is even harder for either party to control than is traditional bargaining. It requires a level of respect for the other participants, a willingness to listen, and an ability to “let go” that is simply beyond some people, whether they sit behind a desk or an instrument. The fact that some managers will propose non-traditional bargaining, and some negotiating committees agree to it, does not mean that either side has really accepted, or even understood, the underlying principles.
By far the most damning “fact” about IBB for those who oppose it is the perception that IBB so often seems to be associated with bad outcomes for musicians. This perception likely has several causes. First of all, managements usually don’t propose using IBB unless they expect the negotiation to be a difficult one. Managers don’t like change any more than musicians do, but they will naturally look for a tool that might ameliorate some of the difficulties inherent in asking for cuts. Unfortunately, it is then entirely logical for the musicians to view that tool as a ploy to negotiate concessions while keeping the musicians “sweet.” Over time, proposing IBB in advance of difficult negotiations has led to orchestra musicians viewing a management proposal to use IBB as tantamount to demanding concessions; “concessions” and “IBB” become virtually interchangeable terms.
Those who oppose IBB on other grounds can then use those bad outcomes to buttress their case. That IBB has been used in some good negotiations, and traditional bargaining in some catastrophically bad ones, becomes irrelevant. All that becomes heard and understood is that the “new way of negotiating” produced a bunch of bad settlements. Those that try to defend the process in the face of those outcomes are easily routed by the argument— intuitive, if unprovable—that the results would have to have been better if the committee had fought harder at the table.
Scientists know that correlation is not causation; everyone else intuitively believes the opposite. Real-world negotiations do not happen in the laboratory, where the same negotiation can be simulated using different methods and the results compared. In the absence of contrary evidence, bad outcomes lead disappointed musicians to blame the process, especially when the process is new and other explanations are uncomfortable to accept.
Adding fuel to the fire have been a few controversial settlements which could only have been reached through non-traditional methods. Those who oppose IBB often point to the 2000 Internet Agreement and the 2004 Saint Paul Chamber Orchestra settlement as “poster-child” examples of why IBB doesn’t work to the benefit of musicians. The Internet Agreement, in their view, abandoned traditional principles of national rates for electronic media work, while they view the increased involvement of musicians in artistic decisions in the new SPCO contract (especially the hiring and firing of musicians) as radical and even dangerous to the musicians’ long-term interests. But to criticize IBB for those outcomes is to blame the process for the decisions made by the participants; in essence, it is to argue that musicians can only negotiate competently if their options are severely limited and they are under the strict supervision of paid negotiators and union officers and staff.
Is non-traditional bargaining an uneven playing field for musicians? I’ve participated in both traditional and non-traditional bargaining, and, while not an expert on negotiation theory, have seen no reason to believe IBB is bad for musicians. But until musicians see better settlements from negotiations run along non-traditional lines, theoretical explanations won’t matter much to them. Most will simply conclude that IBB doesn’t work in practice, and won’t worry about whether it works in theory.
With negotiations, as with psychiatry, marriage, conducting an orchestra, or any other human activity, the skill of the participants matters far more than the methodology used. IBB can offer significant advantages over traditional practice in certain situations, and especially when negotiating certain kinds of issues. It can encourage far more creative solutions to some negotiating problems and can even better identify many problems in the first place. In situations where there is a genuine imbalance in power, it can produce outcomes that are sustainable solutions rather than temporary (and often Pyrrhic) victories for one side. But it is not a panacea, and when misused can produce worse outcomes than would traditional bargaining in the same circumstances.
Perhaps the answer to those who are frustrated by musicians’ refusal to embrace IBB is simply to stop talking and start doing. Incorporate IBB’s core principles of listening, probing positions non-critically, and thinking imaginatively into your current way of negotiating—which is simply good practice in any kind of negotiation— and, by example, invite musicians to join you. Like the gentleman who was surprised to discover that he had been speaking prose his whole life, we may then all find ourselves bargaining more productively without ever needing to label (and thereby constrain) the bargaining process.