It's Not Over 'Til It's Over -- And It Isn't Over

Mark Evanier provides some very wise precautionary words on his blog News From Me, putting what's happening in negotiations in the context of past strike experiences. Here's an excerpt:

... it's a fine, even prudent idea to not get one's hopes too high. It is a not uncommon negotiating technique to get the other side into the mindset that the deal is done, and then to throw in a last second demand. In past WGA-AMPTP contracts, negotiating has even continued after the deal was made and ratified. Weeks, even months after the '81, '85 and '88 strikes were settled and work resumed, reps from the studio side were still arguing over what had been agreed to, insisting that their notes said we'd agreed to X when we were certain we'd consented to Y. And even when we all agree on what we all agreed upon, we can't always agree on the interpretation of some clauses and codicils.

And Alfredo Barrios' piece, The Strike Is A Lawyers' Game, is something we should all reread right now -- especially the latter part of the essay, where he talks about how to get Nick Counter out of the equation -- and many of his predictions have come startlingly true. An excerpt:

And by taking the fight to them, I mean, maintaining picket lines at the studios at peak levels, relentlessly picketing locations, continuing to put out creative videos that entertain and inform people about the strike, denying waivers to award shows and picketing those shows, seeking alternative ways to put out creative work on the Internet for pay, etc.

Playing this kind of offense serves a couple of purposes. First, when a CEO drives through the studio gates, or hears about how a location shoot was impacted by picketing (like for example, when an actor leaves the set or a day has been added to the schedule), or sees how his untenable bargaining positions are being ripped apart on websites, or is told about how his award show is falling apart, or reads how Google is about to form a competing entertainment powerhouse, it all collectively begins to call into question the promise that Counter made – i.e., that we would crumble. It’s a daily reminder that we are not losing our resolve. It makes him worry. His expectations aren’t being met. Things are uncertain again. And it begins to chip away at Counter’s credibility as the guy who could resolve the strike with minimal inconvenience to the studio CEOs.

This last point is important. Why? Because the way you win is by taking the lawyer out of the equation. Deny him the promise that he made to his client – i.e., that he would add value by battering all of us down. Once the CEOs begin to believe that we’ll stick to our guns until we get a fair and equitable deal, that’s when we’ve won. That’s when the CEOs and their CFOs will step in and begin to deal directly with us. Why not Counter? Because his job wasn’t to deal with real and fair numbers; it was to screw us. Once he fails at that, it’s time for others to step in. Trust me, it happens.

He went on to make some predictions about the DGA negotiations:

As the upcoming DGA talks proceed, I predict that Counter will try to ram a really bad deal down the director’s throats. And he may succeed, given the makeup of that union’s membership and their historic appeasement of studios during labor talks. I suspect that whatever deal is reached will be slightly better than what was offered us (it certainly couldn’t be worse) and will be wielded like a stick to beat us into taking it as well. The DGA leadership will certainly have every incentive to spin it as a huge win for them and the industry. How could they not? It costs the studios nothing to take this approach. If we don’t take the same deal, they’re back to dealing with us, and the DGA is the only loser.

As for acting like “nicer” and “more accommodating” guys and gals… Well, let me just say that in all of my years as a corporate lawyer, “nice” and “accommodating” adversaries who never stuck to their guns and didn’t bring the fight to us never got better deals. They only get worse ones. So don’t buy into the our-leadership’s-too-militant line of argument. They’re not. They’re being appropriately tough. Trust me, you wouldn’t want it any other way.

Now it’s up to the rest of us to hang tough with them.

Serious progress has been made, we're told, and we're all waiting to see what it is. But we should all take a breath, and remember: it's not done yet.