Negotiating With The Dead: Lessons In Dealing from Rock’s Prolific Hippies

Since it cost a lot to win And even more to lose You and me bound to spend some time Wondering what to choose - Deal, Robert Hunter and Jerry Garcia

The Grateful Dead, my favorite band in the known universe, offers vast material for a myriad of legal case studies. I know this because they’ve been my wellspring for various law school papers, and I’ve yet to find an area of the law they don’t touch. The Dead have faced intellectual property issues with the taping of their live shows and bootlegging of their famous trademarked merchandise, in addition to cannabis charges, among other drug run-ins, and even involvement with the Hells Angels and Ken Kesey’s trial for the Electric Kool-Aid Acid Test. I knew I would turn to them again for the study of negotiations; I just needed an entry point, and it struck one night on my walk home from class. Headphones in, I turned down McDougal Alley in the moonlight, Playing In The Band, swimming through the Bluetooth cables. A lyric I had never noticed before jumped right out: “Some folks trust to reason, others trust to might. I don't trust to nothing, but I know it come out right.”

It’s easy to imagine there is somewhat of a Tao of the Dead; their body of work is deeply influenced by concepts from Eastern religion and spirituality, couched in Western imagery and popular American traditionals. I began a quest through the band's work to pull out lyrics and phrases that speak to the art or theory of negotiation, or as I believe they relate to effective dealing. 

ONCE IN A WHILE, YOU GET SHOWN THE LIGHT IN THE STRANGEST OF PLACES IF YOU LOOK AT IT RIGHT

In the 1980s, Fisher and Ury wrote Getting To Yes, which would become a seminal text in the negotiation theory landscape.“ Principled negotiation,” as named by the scholars, takes place with steps including separating the people from the problems, focusing on interests (not positions), developing options for mutual gain, and applying standards while considering a range of alternatives to a negotiated agreement. This wisdom seems rational, but it assumes the world is a rational place and is often scrutinized for its precarious assumptions. However, Fisher and Ury continued to expand upon their theses, authoring other works together and apart. 

It was William Ury who wrote a later text, the converse to Getting to Yes, in Getting Past No, where he explored working with difficult people. There, he focuses on “using the breakthrough strategy,” which requires “going to the balcony,” stepping to their [the adversary’s] side, reframing, building a “golden bridge,” and using power to educate.

To illustrate the principle of building your “enemy” a golden bridge, a turn of phrase borrowed from Sun Tzu, Ury shares a touching anecdote from Steven Spielberg. As a young man, the acclaimed director was relentlessly bullied by a “big fourteen-year-old who looked like John Wayne.” After a year of nosebleeds and face shoves, teenage Steven figured, “If you can't beat him, try to get him to join you,” and said to his bully, "I'm trying to make a movie about fighting the Nazis, and I want you to play this war hero." The bully first laughed in his face but later agreed and was suited up in  “[a] helmet, fatigues, and [a] backpack,” and according to Spielberg, “after that, he became my best friend.”

The phrase “finding the light at the end of the tunnel,” perhaps a call back to the epic of Gilgamesh, is often misused. It refers to the positive outcome enjoyed after strife, not finding a cloud’s silver lining.”There’s a reason the Grateful Dead relied on a phrase of their own to express, “Once in a while, you get shown the light in the strangest of places if you look at it right.” Rather than emphasizing that life’s ills are justified by the light at the end of the tunnel, or religious redemption (as that phrase may also be interpreted), but instead refers to the mystery of the universe and the idea that solutions tend to be in places outside the boundary of what seems sensical. 

Perhaps a rationalist would tell Spielberg to tattle on his bully, get the school involved, or train in self-defense and show the bully “who’s boss” with a mean left hook.  However, Spielberg’s approach was far more nuanced and absurd. Rather than looking for revenge, Spielberg almost rewarded the bully with a lead role, and yet everything fell into place. 

IF YOU PLANT ICE, YOU’RE GONNA HARVEST WIND

Negotiators are familiar with the concept of the ZOPA, or the Zone Of Possible Agreement. The ZOPA “is the range in a negotiation in which two or more parties can find common ground.” In negotiations, it is critical to establish a bargaining zone that will lead to a favorable outcome, and it all begins with setting intentions.

In the second chapter of Bargaining for Advantage, aptly named “The Second Foundation: Your Goals and Expectations,” Shell opens with a quote from King Ching of Chou, reading, “High achievement comes from high aims.” The chapter goes on to detail the rise of Sony from a largely unknown Japanese radio company to the industry giant we know today, centering around a fateful meeting between Sony’s leader, Akio Morita, and the American company Bulova, whom he ultimately rejected as a potential partner in the American markets. According to Shell, “The more specific your vision of what you want and the more committed you are to that vision, the more likely you are to obtain [your goal].”

Franklin’s Tower, a fan favorite amongst Deadheads, is a tribute to Robert Hunter’s hopes and dreams for his newborn son and the United States on its bicentennial. The lyrics recount a story about Benjamin Franklin and the cracked Liberty Bell. To convey something similar to the Eastern concept of Karma but explain it through the eyes of the quintessential scientific American and almanac author Ben Franklin, Hunter penned the lyric, “If you plant ice, you’re gonna harvest wind.” Being rooted in the material world (pun intended),  the phrase doesn’t conjure any woo-woo energy but lends itself to interpretation. To me, it's a reminder that you reap what you sow. In any realm of life, it's crucial to establish your goals and form an appropriate ZOPA for dealmaking. This stands for negotiations as inconsequential as setting a child’s bedtime or as taxing as a corporate merger. In any case, to walk away with a desirable result, you have to aim high and allow your opponent to chip away at, without eating away, your desired outcome. 

WHAT I WANT TO KNOW IS, ARE YOU KIND?

“Well the first days are the hardest days, don’t you worry anymore. ‘Cause when life looks like easy street, there is danger at your door. Think this through with me, let me know you’re mine. Woah, what I want to know is, are you kind?”

These lyrics, penned by Robert Hunter, seem at first blush to be some of the most lucid within the Grateful Dead’s discography, but as the rest of the song unfolds, a greater mystery is revealed. Uncle John’s Band is an unusual song, and Hunter himself said nearly 30 years afterwriting it that it’s a “puzzle piece.” The song may best be explained by Genius annotator arobbie1992 as “ a collection of fragmented images within a storehouse of the American consciousness during the final year of a decade that now serves as a metaphor, the 1960s.”

The 1960s saw monumental changes and held many opposites. There were freedom fighters, and there were lynchings, there was war in Vietnam, and there were hippies in Haight-Ashbury, there was a space race, and there was a Silent Spring. If Uncle John’s Band is about the 60s, what symbolism can we draw from its potent lyrics? My favorite answer comes from another Genius annotator, user DanielFernald, who shared, “ [a] River is a symbol of the course of the soul’s evolution from the material to the spiritual life in the world of experience. Speaking is symbolic of the exercise of mental faculties, good or ill, as the mind is directed upward or downward.”

According to a fairly recent entry in the Encyclopaedia Britannica, modern ethicists use the terms morals and ethics interchangeably. Some Westerners believe morality to be more concerned with religion and ethics within the realm of science, or others “think of morality as something that’s personal and normative, whereas ethics is the standards of “good and bad” distinguished by a certain community or social setting.” However, suppose we follow the modern trend of using the terms interchangeably. In that case, we allow room for the influence of one’s personal sense of right and wrong and their burden to operate within the realm of professional ethics to hold weight in dealmaking. If a river is a symbol for the evolution of consciousness, and debate represents one’s ability to direct the mind “upward or downward” as it's fallible to influence, then one must work hard to center oneself and find a personal set of values amongst all of the constant changes and external sways. Essentially, one must have a strong sense of self and some kind of moral compass.

Having a strong sense of self and the ability to subscribe to personal and professional ethics is highly relevant to deal-making. I hesitate to quote the musical Hamilton, but sadly, I think no other lyricist has written a line as interesting as “If you stand for nothing [], what will you fall for?”

 In our provided reading, Ethics in Negotiation, the authors determine that when using an unethical tactic, a negotiator is likely influenced by either their own motivations, the expectations of what the other negotiator will do, or whether or not the negotiator expects to be doing business again in the future. The authors caution that before using unethical tactics, ask yourself: Will the tactic really help achieve the objective, will it affect the quality of the relationship with this opponent in the future, and how will it affect reputation? These considerations are all fine and well, but to me, the Grateful Dead asks a better question with, “Are you kind?” This query is a tool I use to center myself and regulate my decision-making and outward behavior. Of course, I don’t always achieve perfect loving-kindness. Still, I try to always redirect myself toward it because I deeply believe that actions made serving loving kindness are what we all owe each other as human beings. 

IF YOU GET CONFUSED, JUST LISTEN TO THE MUSIC PLAY

All humans make and enjoy music. Whether it comes from a sitar, mbira, erhu, or upright bass, music is foundational to human life. It’s no wonder that music restores our faith in humanity during times of conflict; it is empathogenic and therapeutic. The quickest way to avoid the pitfalls of “us” and “them” (or should I say I and It, thanks to Buber) is to remember we’re all under the same sun, that we all turn away from pain and toward pleasure, and that we all have music. That said, just because all peoples have music, there are different, specific ways to listen (or not listen). In Judaism, one who mourns their parents observes sheloshim by refraining from listening to music for twelve months after the death of their parent. Devotional kirtans are sung in Hindu worship, Islam uses a musical call to prayer, and Gospel music is an American Protestant creation on to itself. Cultural competency is a crucial way to both find the golden threads of sameness between all peoples and respect the differences and traditions.  One must face negotiations the same way. 

All cultures have social norms, but the level at which those norms are ingrained varies across cultures. In a survey of nearly seven thousand people in more than thirty countries, University of Maryland Professor Michele Gelfand and her research team have found that “a primal difference that can be applied to virtually all cultures throughout human history: their relative tightness or looseness, as reflected in the strength of their social norms.” Japan, India, and Türkiye are said to have “tight” cultures, where norms are more strictly followed and govern things like timeliness and littering. The United States, the Netherlands, and Brazil are “loose” cultures, where “a broader range of behavior is deemed socially acceptable.”

Gelfand argues, “Countries can be found on all points of the tight-loose continuum; Asian, Middle Eastern, and Nordic and Germanic European nations tend to be tighter while English-speaking, Latin, and Eastern European cultures are often looser.” Understandably, the degree of tightness or looseness affects negotiation. Typically, those from tight cultures tend to be rule followers, punctual, and self-controlled but may be uncomfortable with new ideas and outsiders. Those from loose cultures are more likely to be creative negotiators or open to new ideas, but their tendency to question or bend the rules can sometimes lead to ethical shortcuts, and their higher risk tolerance can lead to disorganization.

Of course, highlighting these differences begs the question: how do we bridge these differences to find solutions? One of the best ways to overcome perceived differences is to remember the complex mosaic of human nature. One is not solely a reflection of their home country but belongs to a region or city, a profession, social class, religion, gender, and so on. . . It’s important to understand your fellow negotiator as a tapestry rather than a stereotype, and perhaps somewhere within that tapestry, there is room to find points of similarity. Perhaps you both enjoy attending Opera, sampling local alcohol, or hiking. Without getting bogged down in the details of difference or fearing that common ground cannot be found, find the place of connection, and perhaps it lies in something as universal as “listen[ing] to the music play.”

As some Grateful Deadologists have put it (and yes, that is a thing thanks to the University of California Santa Cruz Grateful Dead Archive), at the point in Franklin’s Tower where the lyric in question arises, it is meant to break the fourth wall. To tell the audience, if you’ve been focusing too hard on the lyrics, trying too hard to discern meaning, and you’ve become lost in the details, just stop and remember why you’re at this concert in the first place- to hear music! So when technicalities and devilish details seem to get in the way of effective dealmaking, remember to turn to your bigger picture objectives, and find common ground.  

WITHOUT LOVE IN A DREAM IT WILL NEVER COME TRUE

Wayne D. Brazil, in his piece The Attorney as Victim insists, “Some form of manipulation is a very real component of the professional lives of most litigators every day.” He goes on further to share his belief that  “‘money’ and ‘winning’ are the primary motivations of a high percentage of the litigators who are most comfortable with their work and the current system of dispute resolution.”  He wonders, “What assurance can an attorney who lives in a manipulation-oriented world for eight to ten hours a day have that she will be able to shift to another interpersonal gear in the evenings and on weekends?” This is an apt question; it speaks to the heart of the lawyer jokes Americans are familiar with (Q: What do you call five thousand  dead lawyers at the bottom of the ocean? A: A start) and explains the uneasiness people have toward the profession. It seems beloved cultural figures like Atticus Finch, Perry Mason, or even Elle Woods have fallen out of favor or been replaced with more complicated characters like Saul Goodman, Annalise Keating, and Harvey Specter. So how can a lawyer or lawyer-as-negotiator defy the stereotypes of their profession? 

Many of the stoic philosophers espouse that we cannot control how others perceive us, but we can control how we conduct ourselves out in the world. So, with the ball back in our metaphorical court, how can we, as lawyers or dealmakers, go about cultivating a practice that we are proud of, stand by, and do not need to disassociate from in our non-professional life? Perhaps we take it back to what drew us to the legal profession in the first place. 

A beautiful line from the Talmud reads, “The world endures only for the sake of the breath of schoolchildren.” Essentially, education is at the root of our survival on this earth. We should always be learning and growing because what is the alternative? If we can center ourselves around a thirst for knowledge, we can approach work as an opportunity to evolve and not a means to end of a fat payout or six-figure salary. 

What was it that drew us to the law? To study for the LSAT while our college peers enjoyed their senior spring? To soldier through homework, finals, and projects on a student budget into our mid-twenties and read hundreds of pages of dense texts, sometimes dating back to medieval England? It could not be only a love for money; there’s plenty of that to be made in finance or coding; it must be a quest for understanding, a passion for justice or problem-solving, or a desire to better understand the workings of the world around us. 

“Without love in the dream, it’ll never come true.”  To me, this serves as a reminder that all things are possible by finding love and light at the center. It’s easy to become cynical as a lawyer; your entire occupation is predicated on either being able to predict any wrong that could happen and preventing it or attempting to mitigate any wrongs that have already happened. I never liked the word lawyer, anyway. Stemming from Germanic Old English, it means “one versed in law” or “ one whose profession is suits in court or client advice on legal rights.” The French avocat or Spanish abogado, coming from the Latin advocatus, meaning “advocate” has always been a more inspirational name to me. Suppose American lawyers could see the roots of advocacy rather than adversarialism in their profession. In that case, we might heal our relationship to our line of work and sense of pride in our vocation. 

ONE WAY OR ANOTHER, THIS DARKNESS GOT TO GIVE 

On December 6th, 1969, The Altamont Speedway Free Festival, a countercultural rock concert, took place along the Altamont Speedway outside of Tracy, California. The concert, with a lineup of Santana, Jefferson Airplane, The Flying Burrito Brothers, Crosby Stills, Nash & Young, and The Rolling Stones, resulted in chaos and three accidental deaths. The Grateful Dead were positioned to perform after Crosby Stills, Nash & Young, but as chaos descended and it became clear that there would be violence at the show, they chose not to perform despite being involved in planning the event. In response to the event, San Francisco music critic Ralph Gleason wrote an open letter to the Rolling Stones in the San Francisco Chronicle. It was clear that this event was a harbinger of the end of the free love movement, along with the Manson Family murders and the ongoing cultural response to the pandemonium of Woodstock.

Grateful Dead Lyricist Robert Hunter was notably absent from the Altamont concert. He made a deliberate choice not to be there after discerning from the music of Jefferson Airplane, particularly their song Volunteers, that the peace-loving movement was losing ground. He hoped his absence would send the message that “there’s a better way. There has to be education, and the education has to come from poets and musicians because it has to touch the heart rather than the intellect, and it has to get in there deeply.” Another critic, the famous Robert Christgau, also weighed in on the Grateful Dead in the wake of the Altamont show, saying, “I recognized how smoothly the Dead Americanized volatile intellectual imports like karma and eternal recurrence. Only within a culture as benign and abundant as that of Northern California could anything real and humane accompany such vast cosmic notions, but it did, and the Dead were its highest manifestation. They were not uncomplicated men, but within the controlled environment of the concert hall, they generated a joyful noise that went beyond accomplishments.”

In response to all of these events, Robert Hunter wrote New Speedway Boogie. The lyrics, clearly a form of taking responsibility for involvement in the concert read, “Spent a little time on the mountain, Spent a little time on the hill. I saw things getting out of hand, I guess they always will.” But the song ends on a positive note, a refrain repeated three times “One way or another, this darkness got to give.” Essentially, if you take responsibility for your actions, learn from the experience, and make changes accordingly, you’ve done your part to move on toward a brighter future. 

I think the Dead themselves did a fair amount of negotiating on the day of the Altamont concert. Though they were partially responsible for setting it up, they decided not to follow through on a promise to their fans to perform. They knew they would bear responsibility for the tragedies of that day but also decided not to contribute their music to be the backdrop to violence. There are plenty of lessons to extract from just this anecdote alone, but I’m also reminded of an early reading from the second chapter of Bargaining for Advantage. 

In the chapter, Shell emphasizes that  “effective negotiators are reliable. They keep their promises, avoid lying, and do not raise hopes they have no intention of fulfilling.” Essentially,  negotiators guard their reputations for straightforward dealing granted “integrity in bargaining is more than a set of rules.” Integreity in negotiations, he argues, is “an attitude. Relationships, social norms, culture, and bargaining etiquette all make a difference.” I believe the Dead came away from the Altamont event without detrimental reputational harm because of their thoughtful approach to pulling out and accepting responsibility. It gave fans and critics a reason to believe they were special, and they were blessed with decades more of live music events. 

OH WELL, A TOUCH OF GREY KIND OF SUITS YOU ANYWAY

Exploring aspirations is apparently so musical of a topic I am not alone in looking to songs to access it. Even Andrea Kupfer Schneider, in The Negotiator’s Fieldbook, relied on the Rolling Stones to offer “you can’t always get what you want, but if you try sometimes you just might find, you get what you need.”

In the text, Schneider emphasizes how critical it is to set aspirations in negotiation and carefully consider goals when creating bottom lines. These aspirations should be set high because “studies show that negotiators with higher goals accomplish more.” However, this doesn’t happen by magic; it's likely because “optimistic aspirations [may] cause negotiators to work harder at bargaining to achieve their desirable outcome.” This is essentially a “shoot for the moon; even if you fail, you fall among the stars” approach. It doesn’t guarantee you get the outcome you would walk away with in an ideal world, but it should ensure that you don’t walk away worse for the wear. So, that’s the lesson from the Stones, but what about the wisdom from the Dead? 

In their most well-known song, and only song to chart in the top ten of the Billboard Hot 100, “Touch of Grey” is the realist’s Ode to Joy. Adding on to the familiar adage “every cloud has a silver lining,” Robert Hunter reminds, “every silver lining's got a touch of grey.” Hunter reminds us of the touch of grey, not to lament over it, but to emphasize “ it’s a lesson. . . it's all right. . . [you] will get by, [you] will survive.” This goes to the heart of Schneider’s point that “while there are some risks of disappointment and unrealized settlements involved in setting optimistic goals, studies demonstrate that setting specific, optimistic and justifiable aspirations results in negotiations that accomplish more of what the negotiator wants,” but perhaps more importantly, “aspirations should also be broadened to include more subjective measures of success.”

SOMETIMES WE LIVE NO PARTICULAR WAY BUT OUR OWN

 Eyes of the World, a common feature of any Dead live show, is a beautiful song rich with metaphor. The repeated line from the chorus, “You are the eyes of the world," is a translation of the Buddhist practitioner Longchenpa's practical guide to the tantra. The song is about “pure presence,” an idea familiar to any Ram Dass fans as “be here now.” In addition to emphasizing the importance of the pure present moment, the song insists, “sometimes we live no particular way but our own.” Dick Katz, in his contribution to the Grateful Dead annotated lyrics project, wrote, “[this lyric gets] to the very essence of the Dead experience, which is to simply be who you are.”

Oscar Wilde, another of my favorite thinkers, once said, “Be yourself; everyone else is taken.” Likely without knowledge of dharma, he touched on a pretty similar principle. Essentially, we all have roles that we are best suited to fill based on our unique skills, experiences, and stories. The Japanese have a word for a person’s particular purpose, their ikigai. One’s ikigai is at the center of what they’re good at, what the world needs, what they love, and what they can get paid for. A lawyer or negotiator should find themselves as a deal maker when (1) they are skilled at dealmaking, (2) somebody needs their services, (3) they are comfortable in the role, and (4) it is rewarding. 

Shell addresses something similar in Bargaining for Advantage, stating that “your personal bargaining styles are nothing more (or less) than your inclinations or predispositions to make certain moves when you are negotiating” and “instincts will very likely shine through no matter how hard you try to suppress this aspect of your personality.” Inclinations in negotiating come from “childhood, family, early professional experiences, mentors, ethical systems or beliefs, and so on,” but they can change “as your knowledge of negotiation grows and you gain more confidence in a wider range of skills.” However, no matter your initial inclinations, or however they change over time, “each style or combination of styles brings a set of associated talents with it.”

Shell outlines four basic types of negotiating personas: the competitor, the accomadator, the compromiser, and the collaborator. Competitive negotiators may see “more quickly than others how power and leverage can be gained in a given situation.” Accommodating negotiators “have a talent for being a team player and helping other people, even when there is a conflict of interest,”  and may “ be focused on the interpersonal relationship aspect of an interaction when the rest of us are focused on the money.” Compromising negotiators “seek simple, fair methods of taking turns or splitting the difference to resolve negotiation differences quickly and fairly [] more often and much sooner in the process than will people who lack this inclination.” Lastly, collaborative negotiators “ find themselves facilitating the process, asking lots of questions and developing different ways of looking at the issues to meet as many needs as possible--including their own. They will genuinely enjoy complex, prolonged negotiations in a way that someone predominantly inclined toward simple compromises will not.”

I could go on and on to elucidate further the ways that the music of the Grateful Dead fits maps onto popular negotiation theory and provides insight into the essence of human interaction. However, this has already been a long strange trip. Just as the Dead encouraged fans to live as authentically themselves, negotiation theory suggests that understanding one's unique style and inclinations is crucial in achieving successful outcomes. Dealmakers ought to find their own rhythm and approach, ultimately leading to more harmonious agreements and successful outcomes for all parties involved.

FARE YOU WELL, MY HONEY

“Going home, going home, by the waterside I will rest my bones.
Listen to the river sing sweet songs to rock my soul.”- Brokedown Palace 

Brokedown Palace is, as Genius annotator Dusty C. Flanarooskie writes, “a song about death, but a death that is part of the peace that passeth all understanding.” However, it needn’t always be interpreted so literally. Anyone familiar with the tarot or reincarnation knows death is not necessarily the end but rather an opportunity for a new beginning or transformational change. I’d like to think of the significance of Brokedown Palace within the Dead’s history the same way. Often played as the closing song for live shows because of its line “fare you well” and lyrics about the end of things, Brokedown Palace is a mainstay for any Dead show, and the phrase is common within the lexicon of fans.[5] The song also served as the inspiration for the title of a series of archival collections and retrospective shows for surviving members of the band. However, something special about the Dead is their refusal to, well, die. 

The band has been known as Mother McCree’s Uptown Jug Champions, The Warlocks, and The Grateful Dead, and then broken out into RatDog, Phil Lesh and Friends, The Other Ones, Furthur, Dead and Company, and Wolf Bros. The band’s lineup has always been a revolving door, and the only constant is the ethos and the commitment. I’m reminded of the Tao Te Ching’s passage about water, “Water is fluid, soft and yielding. But water will wear away rock, which is rigid and cannot yield. As a rule, whatever is fluid, soft, and yielding will overcome whatever is rigid and hard.”I’m also reminded of a more classically groovy saying, “go with the flow.” 

So, as this study comes to an end, or rather, a beginning, I cannot offer resolute dos and don’ts. Negotiators should aim to transcend rigid approaches and adapt to the fluid nature of negotiations. The Protean negotiator adapts to the settings in which they are placed effectively and keeps on truckin’. . .