Element Theory Tables
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Last update: 20160318
Contents
1. Yoshiaki NOMURA ........................................................................................................... 2
2. Tetsuo MORISHITA .......................................................................................................... 7
3. Tsuneo NIKI ...................................................................................................................... 8
4. Tsuneo OSAWA.................................................................................................................. 8
5. Tetsushi OKUMURA ...................................................................................................... 16
6. Katsumi NITTA............................................................................................................... 16
7. Atsuko KAGA .................................................................................................................. 21
8. Toshitaka TAKEUCHI (Revised: 20160304) ................................................................. 23
9. Daniel FOOTE................................................................................................................. 27
10. Yuji EGUCHI ................................................................................................................. 27
11. Kei HIRAI ...................................................................................................................... 27
12. RENGYO ....................................................................................................................... 32
13. Kazuyoshi FUKUZAWA................................................................................................ 34
14. Rikiya KUBOYAMA...................................................................................................... 38
16. Shozo OTA ..................................................................................................................... 38
17. Hisashi ONOGI ............................................................................................................. 53
Element
One of seven elements.
Paraphrase
Paraphrase of the element.
Theory
Theory on which the element is based
Contents of the theory
Sources of the theory
Case which illustrates the theory
Commentary on the case
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1. Yoshiaki NOMURA
1-1 (Yoshiaki Nomura)
Element
Invent options for mutual gain.
Paraphrase
Enlarge the pie.
Theory
Pareto improvement and Pareto optimality
Contents of
the theory
“If a social innovation makes at least one member of the society better
off than the current state without making any member of the society worse off
than the current state, then such social innovation can be said to bring about Pareto
improvement.” (Ota, p.4)
“Pareto optimality is a function for the assessment of social condition,
which refers to a social state in which it is impossible to make any member of the
society better off without making at least one member of the society worse off.
In other words, this is a social state that comes after all “Pareto improvements”
have been exhausted.” (Ota, p. 3)
Sources
of
the theory
Shozo Ota, “ADR for Socially Desired Dispute Resolution” in Arbitration and
ADR No. 7 (Japan Association of the Law of Arbitration and Alternative Dispute
Resolution, 2012), p. 1, 3, 4.
Case which
Orange case (Source: Handbook of “Negotiation Demonstration DVD: It’s fun to
illustrates
Negotiate!” (Shoji Homu, 2011))
the theory
Na: A sister puts an orange on a table and is starting to do something. Then, her
brother comes in.
Brother: Oh, an orange. Lucky!
Sister: No! Mom gave it to me.
Brother: You’re keeping it all for yourself? It’s not fair. Give me some.
Sister: No!
Na: The argument continues.
Brother: You are mean! You can give me half, can’t you?
Sister: If you insist …Ok, only half.
Na: What did they do with the orange that was cut in half? The brother peeled the
orange and threw the peel into the trash can. He only ate the fruit of the orange.
Na: The sister peeled the orange and started to shred the peel. She wanted to bake
a cake with the orange peel.
Na: What the sister wanted was not the fruit of the orange but just the peel. This
dispute over an orange teaches us many things. What would have been the best
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way of negotiation for them to obtain a more satisfactory result for both of them?
Commentary
on the case
If they did not negotiate, then the sister would have kept the orange all
to herself (Solution A). In the orange case, the sister and the brother negotiated
and they divided the orange into two equal parts (Solution B). Under Solution A
by which the sister keeps the orange to herself, the level of satisfaction of the
sister will be 100% but the level of satisfaction of the brother will be 0%.
In contrast, under Solution B by which the orange is divided into two
equal parts, the level of satisfaction of the sister will go down to 50%, and the
level of satisfaction of the brother will go up to 50%. In this case, when the levels
of satisfaction of both are added, the total level of satisfaction will be 100%,
which is the same as that under Solution A where no negotiation is made.
Then, how about the solution by which the orange is divided into “fruit”
and “peel” parts (Solution C)? By this Solution, the sister gets the orange peel she
really wanted, and the brother gets the fruit of the orange he really wanted, and
thus the level of satisfaction of each of them will be 100%. Under Solution C,
when the levels of satisfaction for both are added, it will become 200%, which is
higher than that under Solution A (keep it to herself without negotiation) and
Solution B (divide the orange into two equal parts). Therefore, Solution C is the
advantageous choice for both. As both gain benefit, this is a win-win solution.
Let us suppose that the relationship between the sister and the brother in
the orange case exists in a society consisting of these two individuals. If the state
created by Solution A is improved by Solution B, although the brother, i.e. “at
least one member of the society” will be in a state in which he is better off than the
current state, the sister will be in a state in which she is “worse off than the current
state.” Therefore, method B does not bring about a Pareto improvement.
In contrast, if the state under Solution A is improved by Solution C, the
brother who gets the fruit will be in a state (the level of satisfaction is 100%) in
which he is better off than the current state, and the sister who gets the peel will
not be in a worse state (the level of satisfaction is 100%) than the state in which
she keeps the orange to herself (the level of satisfaction is 100%). Therefore,
Pareto improvement has been achieved. The level of satisfaction of the society
consisting of the sister and the brother is 100% in the state under Solution A,
100% in the state under Solution B, and 200% in the state under Solution C.
If there is no better option than Solution C, then the state created when
Solution C is adopted is “a social state in which it is impossible to make any
member of the society better off without making at least one member of the
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society worse off.” (The level of satisfaction of the society consisting of these two
is 200%.) Therefore, this condition is the Pareto optimality.
To come up with an option that is advantageous to both means to reach
an agreement that pushes up the total level of satisfaction (or level of effectiveness
or happiness) of both parties to the negotiation to a level higher than the current
level, i.e. an agreement that achieves a Pareto improvement. We can say that the
Harvard-type method, i.e. Method of Principled Negotiation or Interest-based
Negotiation, uses the theory of Pareto optimality as a standard for the assessment
of negotiation. The standard for Pareto optimality is the same as the standard for
efficiency in the study of law and economics.
As the optimal state or improved state may vary depending on how the
level of satisfaction and advantages and disadvantages of the parties to the
negotiation are measured, this cannot be necessarily used as a sufficient standard.
Pareto optimality or efficiency is a prerequisite for social desirability, but is not a
sufficient standard. A way to overcome the limit of Pareto optimality will be
distributive justice. Distributive justice can be explained, in a catch-phrase-like
way, as “To each his own” or “allocate goods to those to which they belong.”
However, the standards for distribution vary in cases where goods are distributed
completely equally, goods are distributed according to the level of contribution, or
goods are distributed as needed (See Ota, pp.5-6).
Under distributive justice, it is difficult to find standards for distribution
(how much to whom) in which both parties to the negotiation can be satisfied. In
relation to this point, Harvard-type Principled Negotiation emphasizes the use of
objective standards which will be considered by everyone to be at least difficult to
criticize and to be somehow acceptable.
1-2 (Yoshiaki Nomura & Miseon Kim)
Element
Invent options for mutual gain.
Paraphrase
Expand the resources available prior to distribution.
Theory
The problem-solving model
Contents of
the theory
The problem-solving model was advocated by Carrie Menkel-Meadow.
It is contrasted with the adversarial model as follows (Table 1):
The orientation (adversarial or problem solving) leads to a mind-set
about what can be achieved (maximizing individual gain or solving the parties’
problem by satisfying their underlying needs) which in turn affects the behavior
chosen (competitive or solution searching) which in turn affects the solutions
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arrived at (narrow compromises or creative solutions) (p. 760).
Table 1: Two negotiation models
Orientation
Behavior
Mind-set
Maximizing
Adversarial
Individual Gain
Chosen
Competitive
Results
Narrow
Compromises
Problem
Satisfying their
Solution
Creative
Solving
Underlying Needs
Searching
Solutions
The primary criterion for evaluation of a negotiation model is the quality
of the solution produced (p. 760). In elaborating on approaches to negotiation she
considers the following criteria of evaluation:
1. Does the solution reflect the client’s total set of “real” needs, goals and
objectives, in both the short and the long term?
2. Does the solution reflect the other party’s full set of “real” needs, goals and
objectives, in both the short and long term?
3. Does the solution promote the relationship the client desires with the other
party?
4. Have the parties explored all the possible solutions that might either make
each better off or one party better off with no adverse consequences to the
other party?
5. Has the solution been achieved at the lowest possible transaction costs
relative to the desirability of the result?
6. Is the solution achievable, or has it only raised more problems that need to be
solved? Are the parties committed to the solution so it can be enforced
without regret?
7. Has the solution been achieved in a manner congruent with the client’s desire
to participate in and affect the negotiation?
8. Is the solution “fair” or “just”? Have the parties considered the legitimacy of
each other’s claims and made any adjustments they feel are humanely or
morally indicated?
Criteria one through seven are all based on a utilitarian justification of
negotiation (p. 761).
The problem-solving model finds solutions to the parties’ sets of
“underlying needs” (p. 794) and objectives.
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Although litigants typically ask for relief in the form of damages, this
relief is actually a proxy for more basic needs or objectives. Unearthing a greater
number of the actual needs and objectives of the parties will create more possible
solutions because not all needs will be mutually exclusive, but they are mutually
complementary (p. 795).
To the extent that negotiators focus exclusively on “winning” the
greatest amount of money, they focus on only one form of need (p. 798).
Understanding that the other party’s needs are not necessarily as
assumed may present an opportunity for arriving at creative solutions. It is
important for the parties to understand that even if there are different preferences,
they are not conflicting (p. 798).
The problem-solving model has two structural components as shown in
Table 2 (p. 840).
Table 2: Two elements of the problem-solving model
(1) identifying the parties’ underlying needs and objectives;
(2) crafting solutions:
1. By meeting those needs directly.
2. By expanding the resources available.
The problem-solving model of Carrie Menkel-Meadow explained above
is oriented towards integrative negotiation, and the adversarial model is oriented
towards distributive negotiation. The method of principled negotiation belongs to
the problem-solving model.
Element (1) of the problem-solving model, i.e., “Identifying the parties’
underlying needs and objectives” corresponds to the second element of the seven
elements of negotiation of the Harvard-type negotiation method (the method of
principled negotiation), i.e., “Focus on interests, not positions,” and element (2)2.
of the problem-solving model, i.e., “expanding the resources available,”
corresponds to the third element of the seven elements of negotiation of the
Harvard-type negotiation method (the method of principled negotiation), i.e.,
“Invent options for mutual gain” (cf. Paraphrase of the element: Enlarge the pie.
[Element-Theory Table 1-1]).
Sources
the theory
of
Carrie Menkel-Meadow, “Toward Another View of Legal Negotiation:
Structure of Problem-Solving,” 31 UCLA L. Rev. 754 (1984).
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Case which
The following case is based on an example appeared in 31 UCLA L.
illustrates
Rev. 799-800. The names of the couple are changed to Japanese names. Carrie
the theory
Menkel-Meadow borrowed this example from Pruitt & Lewis, “The Psychology
of
Integrative
Bargaining”
in
Daniel
Druckman
ed.,
Negotiations:
Social-Psychological Perspectives (1977), pp.162-164. In the original example of
Pruitt & Lewis, the issue was how to spend the husband’s two weeks of vacation
time while in the example of Carrie Menkel-Meadow, both husband and wife have
two weeks in which to take their vacation.
Husband Taro and wife Hanako were going to be able to take a
two-week vacation from each one's work during the summer. They just got
married last year and have no children yet. Taro and Hanako decided to discuss
how they should spend their vacation. Taro likes a place with mountains and
Hanako likes the ocean. One will act as Taro and one will act as Hanako and
negotiate on how this two-week vacation should be spent.
Commentary
on the case
The following is the explanation of the case by Carrie Menkel-Meadow
herself (pp. 799-800):
The simple compromise situation, if they engage in distributive
bargaining, would be to split the two weeks of vacation time spending one week in
the mountains and one week at the ocean. This solution is not likely to be
satisfying, however, because of the lost time and money in moving from place to
place and in getting used to a new hotel room and locale.
By examining their underlying preferences, however, they might find
additional solutions that could make both happy at less cost. Perhaps the husband
prefers the mountains because he likes to hike and engage in stream fishing.
Perhaps the wife enjoys swimming, sunbathing and seafood. If so, the couple
might find vacation spots that permit all of these activities: a mountain resort on a
large lake, or a seaside resort at the foot of mountains.
By examining their underlying needs the parties can see solutions that
satisfy many more of their preferences, and the “sum of the utilities” to the couple
as a whole is greater than what they would have achieved by compromising.
2. Tetsuo MORISHITA
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3. Tsuneo NIKI
4. Tsuneo OSAWA
4-1 (Tsuneo Osawa)
Element
Focus on interests, not positions.
Paraphrase
Do not adhere rigidly to one`s own position, but endeavor to both understand one’s
own specific interests and those of the other, in order to reach a solution to the
problem (Osawa’s interpretation).
Theory
The dual-concern model
Contents of
The dual-concern model premises that “a negotiator’s value orientation depends on
the theory
the strength of two independent factors – ‘a concern with one’s own interests
(self-concern)’ and ‘a concern with the interests of the other (other-concern)’, and
that “if a negotiator’s concern is ‘high-egoism and low-altruism’, it is hard for
negotiations to progress because of their increasingly self-assertive actions, but “a
negotiator who is ‘high-egoism and high-altruism’ finds it easier to reach
agreement by adopting problem-solving strategies”. “An integrative agreement
agreeable to both parties is easily reached when both the self-concern and the
other-concern are elevated”. A negotiator who is “high-egoism and high-altruism”
and cooperation-orientated will exchange information frequently during the
negotiation process in order to understand the other’s interests, and having
understood them will endeavor to achieve mutual understanding between the
parties to the extent possible.
＊According to the aforementioned source, “self-concern” is understood as a
“concern with one’s own interests”, and an “other-concern” as a “concern with the
other’s interests”. However, in this context “self-concern” should likely be
understood as a concern aimed at achieving one’s own interests and an
“other-concern” as a concern aimed at permitting others to achieve their own
interests. While it is originally in people’s nature to co-operate with each other
through reciprocal altruism (the basis on which society is formed), if when
negotiating they approach the matter self-consciously with both a high sense of
egoism and altruism, it leads to better integrative negotiation. That said, the
formation of large-scale human societies cannot be explained by reciprocal
altruism alone.
Sources
of
MIKA SASAKI (ed.), KOSHO NO SHINRIGAKU (THE PSYCHOLOGY OF NEGOTIATION)
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the theory
(Nakanishiya Publishing, 2012), pp. 15-21. Many foreign articles and books are
cited in this article.
Case which
Orange case (Source: ROGER FISHER & WILLIAM URY, WITH BRUCE PATTON,
illustrates
GETTING TO YES (Penguin Books, 3rd ed. 2011), pp. 59)
the theory
Some children quarreled over an orange. After they finally agreed to divide the
orange in half, the first child took one half, ate the fruit, and threw away the peel,
while the other threw away the fruit and used the peel from the second half to bake
a cake.
Commentary
The elder sister focused solely on her interest in eating the orange and took
on the case
assertive action without even trying to understand that her younger sister’s
interests lay in the orange peel (nor did the younger sister even try to understand
the elder sister’s interests). Accordingly, the two failed to reach a Win-Win
Resolution. If the two had been concerned about each other’s interests and actively
exchanged information, they might have avoided fixed-pie assumptions and
reached a Win-Win Resolution.
4-3 (Tsuneo Osawa)
Element
Invent options for mutual gain.
Paraphrase
Do not hold the fixed-pie assumption of thinking your and the other person’s
interests are polar opposites, but create a solution by making the pie larger
(Osawa’s interpretation).
Theory
Escaping from fixed-pie assumptions (a cognitive approach within psychological
negotiation theory)
Contents of
“Humans tend to fall into the trap of thinking that the other’s interests are directly
the theory
opposed to their own”, and of assuming (having a fixed-pie assumption) that an
important point of contention for them is important for the other also”. However,
“where there are multiple points of contention, and the parties stress different ones,
there is a complete breakdown in mutual interests”. Because negotiators who
operate from fixed-pie assumptions “tend to think that they will miss out as much
as the other person gains” (they imagine a polar-opposite scoring system whereby
what is important for them is equally important for the other), “they are more
likely to take action to assert their interests”. The more a negotiator rids themselves
of such delusions and accurately understands their and the other person’s
respective interests, the easier it is for them to reach an integrative agreement. In
order to achieve this it is important for them to “realize that they hold a mistaken
fixed-pie assumption”, and “actively exchange information” and “change the flow
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of conversation itself so that it focuses on the other’s interests” in order to
“understand the other’s interests as accurately as possible”.
＊ “Fixed-sum” means consisting of a single interest, the superiority or inferiority
of which decides victory or defeat, so that “one man’s victory is another man’s
defeat” (should one gain the other will miss out to the same extent). Different from
this is “variable-sum”, a structure whereby there are multiple interests and the
interests of one party do not necessarily lead to the other party’s loss, and the order
of priority of those interests differs between the parties.
Sources
of
the theory
MIKA SASAKI (ed.), KOSHO NO SHINRIGAKU (THE PSYCHOLOGY OF NEGOTIATION)
(Nakanishiya Publishing, 2012), pp. 24 onwards (Mitsuteru Fukuno, Chapter 1: 1.
What is “negotiation”?, 5. Three psychological approaches to negotiation). Many
foreign articles and books are cited in this article.
Case which
The orange case (Source: ROGER FISHER & WILLIAM URY, WITH BRUCE PATTON,
illustrates
GETTING TO YES (Penguin Books, 3rd ed. 2011), pp. 59)
the theory
Some children quarreled over an orange. After they finally agreed to divide the
orange in half, the first child took one half, ate the fruit, and threw away the peel,
while the other threw away the fruit and used the peel from the second half to bake
a cake.
Commentary
The sisters each had the fixed-pie assumption that “the other wants the whole
on the case
orange (fruit and peel)”, which prevented a Win-Win Resolution.
4-5 (Tsuneo Osawa)
Element
Prepare a better “BATNA” (“Best Alternative to a Negotiated Agreement”).
Paraphrase
Think of an alternative solution for when negotiations break down.
Theory
Theory of perspective-taking ability
Contents of
“The strength of one’s perspective-taking ability – the ability to put oneself in the
the theory
other person’s shoes – affects the outcome of distributive negotiations”. “The
stronger a negotiator’s perspective-taking ability, the more concessions he can
obtain from the other party and the more fruitful the negotiation”. This is because
“a negotiator who has strong perspective-taking ability can acquire much more
information than one with weak ability on the other person’s goals and limits on
their ability to give concessions”. Additionally, “having strong perspective-taking
ability has the effect of preventing negotiations from breaking down”. By
preparing one`s own BATNA, and putting oneself in the other person’s shoes to
work out what their own BATNA is, it is possible to have an effective negotiation
at close to breaking point.
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Sources
of
the theory
MIKA SASAKI (ed.), KOSHO NO SHINRIGAKU (THE PSYCHOLOGY OF NEGOTIATION)
(Nakanishiya Publishing, 2012), pp. 11-12 (Mitsuteru Fukuno, Chapter 1: 1. What
is “negotiation”?, 5. Three psychological approaches to negotiation). Many foreign
articles and books are cited in this article.
Case which
(Source: TADASHI SHIMIZU, AKIRAMERUNA KAISHA SAIKEN (DON`T GIVE UP IN
illustrates
COMPANY RESTRUCTURINGS) (Toyo Keizai News, 2001), pp. 179-180)
the theory
In a negotiation between a shipping company in the middle of a corporate
reorganization and a labor union, it was necessary, in order realize a “plan to
restructure by selling half of the ships owned overseas, and to raise the shipping
profitability of the remaining half”, to send the sailors for the ships being sold
ashore, which necessitated negotiations with the All Japan Seamen’s Union (JSU).
In this negotiation the company’s situation was explained to the Union’s assistant
branch chief, including the fact that there was a high possibility of severance
money not being paid should the company go into insolvency proceedings, that
even if the ships were occupied they would incur mooring costs, and it would not
be good for the physical and mental health of the sailors, that if it were to happen
now the parent company could be persuaded to pay at least 80% of severance
monies immediately, and that the remaining 20% would be paid at a later date
according to the organization plan as a preferred reorganization claim. The
assistant branch chief was very understanding of the situation and visited each of
the ships with his lawyer, and went around explaining to the sailors his
understanding of the situation, and an agreement was reached according to plan in
as little as two weeks.
Commentary
Good negotiating based on BATNA is critical for company restructurings. The
on the case
above case is an extreme example.
4-6 (Tsuneo Osawa)
Element
Make a carefully crafted commitment.
Paraphrase
Act in a way which is highly harmonious.
Theory
Personality theory
Contents of
Because “personality characteristics” such as the human personality traits of
the theory
“extraversion, agreeableness, conscientiousness” “include considerations to the
personalities of other people and prosocial intentions, they make it easier to induce
co-operative behavior during negotiations”. In integrative negotiation, negotiators
who are highly harmonious tend to obtain favorable negotiation outcomes. “Where
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circumstances and personality characteristics come together, such as with
integrative negotiation and a high level of harmoniousness, this increases
physiological arousal and strengthens a person’s level of commitment and pursuit
of goals for the other, and thereby makes it easier to reach advantageous
negotiation outcomes”. In negotiations which involve integrative issues,
negotiators who can harmonize with the other person are able to guide the
negotiation to a good outcome using harmonious communication and making
appropriate commitments. (However in distributive negotiation, it tends to be the
case that negotiators who are unharmonious obtain favorable outcomes. In
distributive negotiation ease of understanding does not necessarily lead to good
outcomes).
Sources
of
the theory
MIKA SASAKI (ed.), KOSHO NO SHINRIGAKU (THE PSYCHOLOGY OF NEGOTIATION)
(Nakanishiya Publishing, 2012), pp. 13-15 (Chapter 1: 1. What is “negotiation”?,
5. Three psychological approaches to negotiation). Many foreign articles and
books are cited in this article.
Case which
(Source: TADASHI SHIMIZU, AKIRAMERUNA KAISHA SAIKEN (DON`T GIVE UP IN
illustrates
COMPANY RESTRUCTURINGS) (Toyo Keizai News, 2001), pp. 130 onwards)
the theory
In negotiations over orders for fishing boat construction, in the midst of a
shipbuilding company`s corporate reorganization, the most important thing was to
“be able to smoothly deliver the items ordered, and to put the shipowner’s mind at
ease by explaining clearly how the raw materials are being procured, as well as the
situation as regards employees, subcontractors and outsourcing”. When a Kyushu
shipowner voiced concerns as to whether there were problems with the workers, it
was explained to him that “in times like these, the workers want to protect their
workplace and will work with twice or three times as much enthusiasm. They will
without doubt build a fine ship - of that I am convinced. And we`re paying them
their wages properly on the 25th of each month”. This put his mind at ease, and the
company was able to obtain numerous orders thereafter.
Commentary
on the case
4-7 (Tsuneo Osawa)
Element
Secure good communication.
Paraphrase
Convey accurate information in the right way.
Theory
Avoiding fixed-pie assumptions (the cognitive approach to psychological
negotiation theory)
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Contents of
Fixed-pie assumptions arise partially as a result of mistakenly processing
the theory
information on the other person’s interests and concerns (Processing ① incorrect
information ② in the wrong way). It is important as a means of avoiding fixed-pie
assumptions to communicate by conveying accurate information in the right way.
In a negotiation experiment, the motivation of the participants to be accurate is
increased by telling them that they will be interviewed later on their thought
process during the experiment, and making them responsible for explaining the
actions they took. As a result, the participants, now strongly aware of the need to
explain themselves, lose the fixed-pie assumptions held by those who are not,
which causes the result of the negotiation to become integrative.
Sources
of
the theory
MIKA SASAKI (ed.), KOSHO NO SHINRIGAKU (THE PSYCHOLOGY OF NEGOTIATION)
(Nakanishiya Publishing, 2012), pp. 24 onwards (Mitsuteru Fukuno, Chapter 1: 1.
What is “negotiation”?, 5. Three psychological approaches to negotiation). Many
foreign articles and books are cited in this article.
Case which
illustrates
the theory
Commentary
on the case
4-9 (Tsuneo Osawa)
Element
Secure good communication.
Paraphrase
In a complicated and unclear situation, say what you need to say clearly.
of
the
element
Theory
on
which
the
element
The concept of Tubingen-style negotiations based on structural thinking
is
based
Contents of
While the “concept of Tubingen-style negotiation” fundamentally supports
the theory
principled negotiation theory, it posits that one should adapt the method of
“structural thinking” with reference to dispute resolution techniques used by
lawyers. Today’s legal issues…can be seen from multiple points of view, which are
themselves related in important ways. These points of view are diversely
interrelated and it is often possible to rank them, and while part of these are
uncertain, it is the “items” which are raised which humans are able to process in
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their minds…these are limited…to seven at most, and so when humans are in a
negotiation situation which has problems, they face difficulties such as a lack of
similarity in opinions, complexity, lack of transparency, complications, fixed
dynamics, situations with multiple objectives, and uncertainty over whether or not
their goals have been achieved. Also, while we are in such a situation we have a
tendency to choose only those points of view which are convenient for us, and to
reduce a complex unclear situation to these points of view using straight-line
causation. It is said that in order to overcome these limits on our human abilities,
and to deal with the complexity and uncertainty of these issues, the most proper
thing is to apply the “structural thinking” used by lawyers, by structuring the
problem in layers from an abstract stage to a concrete one (the highest level plane
shows the “overall principle” which is at the heart of the issue, the second shows
the “leading principle” which expresses a standpoint, the third the “main points of
view” and the fourth “separate rationales”, with more and more layers branching
out as one goes down). It is said that people who are good at organizing and
processing information in their heads in this way can affect the way in which the
other party in a negotiation processes information also, and can take “leadership”
of the conversation using this structure, and by doing so have the greatest chance
of answering persuasively, even questions about things which are contested
between the parties. It is said that lawyers can have a very high chance of
convincing the other person with their views – to use the American phrase,
“getting to yes” – by taking formal leadership of the conversation, as well as of
important questions on the matters discussed, by bestowing on the various
elements in the confusion of the conflict a structure which is “correct” from a
technical perspective.
Sources
of
the theory
FRITJOF HAFT (Translated by Takahiro Hattori), RHETORIK-STYLE NEGOTIATION MAKING USE OF LAWYERS’ “STRUCTURAL THINKING” (Bokutakusha, 1993), pp. 46,
59 and 219 onwards).
Case which
illustrates
the theory
Commentary
on the case
4-10 (Tsuneo Osawa)
Element
Secure good communication.
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Paraphrase
Deliberate and debate rationally.
Theory
Deliberative democracy
Contents of
the theory
“Deliberative democracy” is “a democratic way of thinking which encourages
resolving problems as a group through rational deliberation and discussion
between people, that is to say forming an agreement through careful deliberation”.
This is a form of democracy which substitutes for the original aggregate
democracy which involves making decisions based on majority voting. As society
becomes more complex, sophisticated and mature, there is an increasing emphasis
on respecting the diversity of the individual, and also methods of and criteria for
solving social problems quickly are lost (because the legitimacy of authority is
constantly being questioned), and society becomes increasingly uncertain. It is
precisely this loss of the societal foundation that makes democracy essential. The
individuals who are assumed to participate in such a situation are those people who
“each reflect on and question the standards on which they act, and then make them
suitable – both substantially, socially and time-wise”. Deliberative democracy
requires that participants do not promote only their own interests, but communicate
with each other for the sake of the collective “common good” (what is meant by
this shared good is itself defined and revised in the course of debate). What is
important here is that the preferences of each person (what they think is good) are
being opened up to “change” as they get to know the perspectives of each of the
other participants. Through a discussion of diverse opinions, accumulation of
explanations of reasons and replies, and questioning by each person of their
respective preferences (reflective preference), a public spirit is formed (most
people wish to contribute to the public good as well as to their own interests). It is
this very public spirit which is the source of legitimacy in collective decision
making through careful deliberation. Agreements formed through such deliberation
do not need to be based on the same reasons for each participant. Agreements can
be formed even for different reasons. While formation of a rational and reasonable
agreement is central to deliberative democracy, there is an approach called
“agonistic democracy” which seeks to find democracy’s potential in the conflict
created by voicing objections to agreement. Agreement is always accompanied by
both inclusion and rejection, and it is important to continually consider the
opposing point of view (if someone raises a point it is not to be rejected, but rather
tabled for debate). Additionally, even though reasoning is important in debate, one
must not forget the importance of sentiments and emotions. The theory requires
that forms of communication such as “greetings”, “rhetoric” and “story telling”
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also be considered – not only rational “proof” – in order to hold an even deeper
debate
based
on
those
emotions.
Deliberative
democracy
necessitates
“multi-layered deepening”, and should be practiced even at a “civil society level”.
On this point, the following is thought-provoking: “democracy at the state level
may involve debate, but in the end is forced to use voting and majority-based
decision making. However, democracy at a civil society level does not necessarily
require decisions to be made. Rather, what is important is to conduct “opinion
forming” through deliberative democracy before decisions are made at the state
level. What is submitted to the place of decision making that is parliament is not
the “raw debate” of the people, but rather their opinions as refined through careful
deliberation. The greatest significance of deliberative democracy at the civil
society level is dependent on this point”. “Civil society” in this case means
“non-state and non-economic unions and associations based on free will” and
“associations, organizations and movements arising spontaneously, whether many
or few” (Habermas).
Deliberative democracy has a place even in even more informal domains. “In a
‘divided society’ it is important, before decisions are made, to first reconstruct
relationships between those divided people”, and “provided a discussion between
individuals leads to a “change in preferences” which contributes to the formation
of a social foundation between those people, this can be called deliberative
democracy”.
Sources
of
the theory
TETSUKI TAMURA, THE REASON FOR CAREFUL DELIBERATION – A POLITICAL
THEORY OF DEMOCRACY (Keiso
Books, 2008), p. 2, 106 and 121 onwards, 134 and
172.
Case which
illustrates
the theory
Commentary
on the case
5. Tetsushi OKUMURA
6. Katsumi NITTA
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6-1 (Katsumi Nitta)
Element
Separate the people from the problem.
Paraphrase
Win arguments by breaking through prejudice.
Do away with stubborn and unruly preconceptions.
Theory
The social intuitionist model (JONATHAN HAIDT (Japanese translation by Hiroshi
Takahashi), THE RIGHTEOUS MIND (Kinokuniya Books, 2014), pp. 88～96)
Contents of
the theory
It is in people’s nature to hold prejudices as regards philosophy and religion, and
even political parties and race. Haidt’s social intuitionist model (SIM) supposes
that when people make moral judgements they are quickly led by their intuitive
system, and after they have made a judgement on whether the behavior in question
is good or bad, their reasoning system thinks of which reason to add. In this way
prejudices are an aspect of human character which is impressed into people from
their childhood experiences.
Prejudices where personal interests are involved are particularly deep-rooted.
However, simply denying one’s prejudices does not solve the problem. It is hard to
eliminate prejudices, and impossible to tackle them head-on. Rather, it is better to
approach them from behind and seek to change their direction gradually. The
important thing is to continue the debate, even if it cannot be won.
Sources
of
the theory
GERRY SPENCE (Japanese translation by Tasuku Matsuo), GIRON NI ZETTAI
MAKENAI HOU (HOW TO ARGUE AND WIN EVERY TIME) (Mikasa Books, 1996),
pp. 112-150; Hiromi Takai, “The relationship between the intuitive system and
reasoning system in moral judgment” in Kyoikugaku Kenkyu Ronshu No. 5
(Mukogawa Woman’s University, 2010), pp. 27-32.
Case which
“12 Angry Men” (An American film from 1957)
illustrates
A young black man living in the slums is recommended for sentencing to death
the theory
for the first-degree murder of his father. From a female witness, an elderly person
who overhead noises and circumstantial evidence, 11 of the 12 members of the
jury decide that he is guilty. They decide that he is guilty firstly because of their
prejudice that as a young black man he is bound to have done something wrong,
because of their prejudice that there is no need to clarify the truth for a delinquent
like him, and because of their negligence – they would rather make a decision and
go home early. However, the remaining juror does not find him guilty and votes
against the guilty verdict, on the basis that he has doubts.
In the debate which follows a number of unclear points in the testimonies
become clear, such as the fact that the knife used for the killing was a common
item, and that faces are hard to distinguish at nighttime. The number of jurors
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voting against the guilty verdict gradually increases, until in the end all of the
jurors vote “not guilty”.
Commentary
In American court cases the race of the jurors often has an effect on the verdict.
on the case
For example, for a crime where a black person is involved, it is known that white
jurors will judge more harshly than black ones. However, in this case, as a result of
one of the jurors exercising calm judgement and debating the matter, the truth
gradually came to light. This is an example of the jury breaking through their
prejudices through debate.
6-2 (Katsumi Nitta)
Element
Focus on interests, not positions.
Paraphrase
Eliminate biases.
Theory
Cognitive bias
Contents of
the theory
Cognitive bias is a theory of cognitive psychology and social psychology, and
refers to the phenomenon whereby, when evaluating something, ones thoughts are
distorted by one’s own interests or hopes, or where one is drawn to characteristics
which are easy to assess but one’s evaluation of other characteristics is distorted.
For negotiations to be rational, each of the four biases of the fixed-pie bias,
vividness bias, nonrational escalation of commitment and susceptibility to framing
must be eliminated. An effective way to avoid the vividness bias is to create a
scoring system and separate information from influence. Non-rational escalation of
commitment can be defended against by starting negotiations with a preplanned
exit strategy, assigning someone to act as “devil’s advocate”, or anticipating and
preparing for the situation to escalate. Susceptibility to framing can be avoided by
having a proper understanding of what may be both gained and lost from the
situation.
Sources
of
the theory
DEEPAK MALHOTRA & MAX BAZERMAN, NEGOTIATION GENIUS (Bantam Books,
paperback ed. 2008), pp. 105-124, Chapter 4: When Rationality Fails: Biases of the
Mind;
“Cognitive
bias:
Psychological
effects
which
distort
thinking”
(http://ronri2.web.fc2.com/shinri07.html, last accessed on May 14, 2015)
Case which
Labor disputes in the US’ National Hockey League (NHL) (Source: DEEPAK
illustrates
MALHOTRA & MAX BAZERMAN, NEGOTIATION GENIUS (Bantam Books, paperback
the theory
ed. 2008), pp. 105-107)
On September 15 2004, in the midst of a fierce labor dispute, the National
Hockey League (NHL) conducted a lockout. Over the course of five months
several hundred matches were cancelled, so that the entire season was at risk.
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NHL’s management proposed reducing the total amount of their yearly salaries,
and in addition the commissioners proposed linking the upper limit on those total
yearly salaries with team revenue.
While the NHL Players Association agreed to the reduction in yearly salaries,
they refused to have the total amount of yearly salaries linked with team revenue.
On July 21, 2005 the NHL and NHL Players Association agreed to enter a labor
agreement, and the lockup came to an end. This was made possible due to major
concessions by the Players Association, and if the Players Association had agreed
to such conditions from the start the lockout would not have been required.
Commentary
The NHL case is an example of “the vividness bias”. For both parties the
on the case
conspicuous figures of the upper limit on total yearly salaries and their share
relative to total revenue encouraged them to take a hard stance. However, their
wishful thinking led them to underestimate the side effects of doing so, such as the
loss of ticket revenue or impact on the NHL’s reputation. They assumed it would
not be a big issue. In actual fact the public’s reaction to the situation was massive,
and they ended up having to pay considerable compensation to those affected.
6-4 (Katsumi Nitta)
Element
Invent options for mutual gain.
Paraphrase
Increase the variety of options available
Theory
Reframing theory
Contents of
the theory
Reframing means looking at matters from a different perspective by changing
the frame of reference.
What is important in the first half of a negotiation is increasing the range of
options available. To do so requires changing the perspective from which one
interprets the information one has been given. For example, “there are only 30
minutes left” and “we still have 30 minutes” are two different ways of looking at
the same information. This kind of reframing has been widely researched in the
field of neuro linguistic programming (NLP).
“Context reframing” involves thinking about what other circumstances
something or someone would be useful in. For example, a person who is not doing
well in a given role at work may demonstrate ability once their role is changed.
“Content reframing” involves thinking about what other meaning or value
content may have. An example is a person who loses their job in a restructuring
beginning a job they had always wanted to do.
Reframing is an effective method for considering a broad range of solutions as
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part of a brainstorming session.
Sources
of
the theory
RICHARD BANDLER & JOHN GRINDER (Japanese translation by Takeshi Yoshimoto
& Hiroyoshi Koshikawa), REFRAMING: NEURO-LINGUISTIC PROGRAMMING AND
THE TRANSFORMATION OF MEANING
(Human Growth Center, 1988), pp. 1-53.
Case which
(Created by Nitta)
illustrates
A conversation between a wife, her husband and a mediator. The wife has returned
the theory
to her family home in Tokyo after the Fukushima nuclear accident, and her
husband wants her to return to their home in Fukushima.
Mediator: It`s hard to decide, isn’t it? Stay in Tokyo or go back to Fukushima.
Husband: Things have settled down quite a bit the last few weeks after the accident
– I don’ think there’ll be any more major problems.
Wife:
Maybe it is safe now, but who knows what will happen in future. For the
sake of our children, you should quit your company and find a new job
in Tokyo.
Mediator: Is it possible for you to leave your company?
Husband: I think quitting right now would be pretty much impossible, and, to be
honest, at 29 I’m pretty much past it to be changing jobs.
Mediator: I see. Well, have you thought about living in Tokyo and commuting to
Fukushima?
Husband: Out of the question - commuting from Tokyo to Fukushima would be a
huge burden, both in terms of cost and time. My wife isn’t satisfied that
Fukushima is safe for the children, I’m not able to get a new job in
Tokyo, and it’s impossible for me to commute from Tokyo to
Fukushima. At this rate, I don’t think either place is going to offer a
solution.
Mediator: (to the wife) Do you need to live at your family home with your parents?
Wife:
I’m not set on it. As long as the children are safe, it’s fine.
Mediator: (to the husband) Is it absolutely essential for you to live in Fukushima?
Husband: As long as I can commute to work and live with my wife it’s fine – it
doesn’t have to only be Fukushima.
Mediator: In that case, how about living somewhere in the middle? Somewhere
where there’s more certainty of being safe, and which doesn’t create
problems with commuting to your current job.
Husband: So, maybe somewhere like Ibaraki? That would work for me.
Wife:
I would be happy with Ibaraki too.
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Commentary
The wife wants her husband to change jobs and live in the family home in Tokyo,
on the case
and the husband wants her to return to live in Fukushima. While there were only
two choices – her family home or their own home – they were able to change the
perspective to “how can we live together”, which produced the different idea of
living in Ibaraki. This is an example of “content reframing” in which the way of
looking at a matter is changed.
7. Atsuko KAGA
7-3 (Atsuko Kaga)
Element
(New Element)
Paraphrase
Actors perform while communicating with the audience.
Theory
Audience participation theatre model
Contents of
The nature of a play is found in and decided by not only the actors, but also the
the theory
behavior of the audience. In life it is more often the case that things do not
progress exactly as set out in the “plot”. It is not unusual for factors like the
behavior of the parties (code of conduct), decisions on what is good or bad
(preference) and so on to change with the course of events. In some cases it
becomes necessary to change the rules themselves, or try out completely new ones.
Sources
of
the theory
DOBOKU GAKKAI SHI HENSHU IINKAI (ed.), CONSENSUS THEORY: THE DILEMMA
OF GENERAL AGREEMENTS WITH INDIVIDUALLY CONFLICTING THEORIES
(Doboku
Gakkai, 2004), pp. 90 onwards, p.92 (Norio Fukuda).
Case which
The Yoshino River Conflict (Source: Asahi Newspaper, May 20, 2013 morning
illustrates
edition, Tama edition, region no. 1)
the theory
・As part of a plan by the old Construction Ministry (now the Land, Infrastructure
and Transportation Ministry), the “Tenth Floodgate” in Yoshino River in
Tokushima prefecture, which was created in its original form in the Edo era, was to
be removed on the basis that it would be endangered in the event of a flood, and
replaced by a new canal gate approximately 720 meters in length. Concerns over
damage to the environment and the necessity of the replacement led to calls for a
referendum over the matter. While a draft ordinance submitted directly to
Tokushima city was rejected by the city council, following council re-elections a
majority of the council members were people in favor of the referendum, and
accordingly a draft ordinance requiring a “50% vote in favor”, was submitted by a
council member and approved. In the vote of January 2000, with a turnout of
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54.995%, as many as 90% of the votes were against the construction taking place.
Following the vote the city itself came around to oppose the construction, and in
2010 the then Minister of Land, Infrastructure and Transportation, Mr Seishi
Maehara, announced the suspension of the construction.
Commentary
・There is a new development not found in the first scenario.
on the case
・In the process a new rule is introduced – a “referendum”.
・The number of parties interested increases, which leads to a new kind of
alternative solution (a conceivable developmental event) being tabled.
・Social infrastructure development takes place over a long period of time – from
several years to as much as several decades from conception to realization. Of
particular importance to conflict management is how, in an age where values,
technology and so on are changing dynamically, one can be flexible to pick up and
quickly deal with such “unforeseen compositions”.
・It can be thought that bringing in the new rule was justified on the basis of the
citizen’s response to and judgement of the situation as the “audience”.
・ This can be described as “conflict management through direct citizen
participation”.
7-4 (Atsuko Kaga)
Element
(New Element)
Paraphrase
In the theatre, the actors not only perform directly to the audience, but also
communicate indirectly with those people outside it.
Theory
Live / open outdoor theatre model
Contents of
In this day and age, where globalization and information socialization are
the theory
progressing day-by-day, this “live theatre” phenomenon means that it is no longer
unusual even for regional conflicts which used to be extremely “local” to attract
interest, and for the parties interested to be featured, even beyond a national level.
We need to search for a more flexible, comprehensive social system of conflict
management, which gives forethought to an outer composition encapsulating a
composition of conflict, within which that inner composition changes.
Sources
of
the theory
DOBOKU GAKKAI SHI HENSHU IINKAI (ed.), CONSENSUS THEORY: THE DILEMMA
OF GENERAL AGREEMENTS WITH INDIVIDUALLY CONFLICTING THEORIES
(Doboku
Gakkai, 2004), pp. 93, 94 (Norio Fukuda).
Case which
The Nagara River Conflict (Source: Maiko Sakamoto, Yoshimi Hagihara “An
illustrates
Analysis of the Conflict between Development and the Environment in the Nagara
the theory
River Dam Controversy” 18(1) JAPAN SOCIETY OF HYDROLOGY AND WATER
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RESOURCES MAGAZINE, pp. 46 onwards)
・The area surrounding the Nagara River has experienced repeated flooding since
olden times, creating a history of wars between the local residents and
water-related disasters. Given this background, the people living around Nagara
River were desperate to implement flood control measures. In particular, over the
course of three years starting with the Ise Bay typhoon of 1959, a series of
large-scale typhoons caused what are known as the Three Great Showa Floods, and
the damage to the region was devastating. These events led to a Nagara River Dam
Construction Plan being drafted. At first, out of Aichi prefecture (including Nagoya
city), Mie prefecture and Gifu prefecture, which are part of the Nagara River
drainage basin, only Gifu prefecture was opposed to the plan. However, because
Gifu was heavily damaged by the approach of the No. 17 typhoon of 1976, and
subsequently gave its agreement to the plan because it felt that putting flood
control measures in place was a matter of urgency, construction of the Nagara
River Dam was able to begin in 1988.
・In the 1980s environmental protection issues began to receive more attention.
Environment conservation groups sprung up demanding that the Nagara River
Dam construction should stop, on the basis that it would lead to environmental
contamination, and with the mass media criticizing the construction of the Dam, a
great wave of opposition to the plan began to sweep across the country.
・In this way, a bitter conflict started to unfold between the developmentalists led
by the Construction Ministry on the one hand, and the environmentalists led by the
environment conservation groups on the other. In the end construction of the
Nagara River Dam progressed and was completed in 1996. Operation of the dam
with a flood control surface subsequently commenced, and in 1997 operation with
a water utilization surface began.
Commentary
・The issue caught the interest of the nation, and spread from what was a regional
on the case
matter to an issue of national importance.
・The mass media’s turning of the issue into “live theatre” contributed to the issue
becoming one of national interest.
8. Toshitaka TAKEUCHI (Revised: 20160304)
8-1-1 (Toshitaka Takeuchi) as revised by Prof. Takeuchi (20160304)
Element
Focus on interests, not positions. (to be more precise, one reaches or aims to reach
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as far as possible an agreement which is not unsatisfactory to the parties, or at least
not as unsatisfactory as possible.) One does not seek to stall or break down
negotiations. While what constitutes a state (situation) which is not unsatisfactory
depends on the judgement of the negotiating parties, it would undeniably be
something which takes their position and interests into account.
Paraphrase
Resolve dissatisfaction.
Provided the parties each intend or aim to reach agreement in their negotiation, an
agreement which minimizes or removes sources of dissatisfaction to each of them
is the most desirable one. There is also a strong chance of such an agreement being
observed and maintained. At any rate, the focus is on the process of the negotiation
until an agreement is reached.
Theory
Critical risk theory
Contents of
① Description: One thinks of a multi-stage game, and at each stage of that game
the theory
(with its differing circumstances) each party seeks to assess the extent of each
other’s risk aversion, and the party with the weaker tolerance for risk is the
one who compromises.
② Hypothesis: Both parties (assuming a two-person game) would rather reach an
agreement by compromising if necessary, rather than making negotiations
break down. There is a difference in the level of risk tolerance between the
parties, and the one with the weaker tolerance compromises. The negotiation
finally reaches an agreement where the risk tolerance of both parties reaches
the same (zero) level. This theory can be applied to analyzing fierce conflicts
of interests (“zero-sum games”), such as those between countries.
・The theory assumes that a payoff can be assigned in the form of a cardinal
number.
・This summary is based on my personal interpretation of the theory.
Sources of
TOSHITAKA TAKEUCHI, GAME THEORY FOR POLICY RESEARCH (Minerva Books,
the theory
2011), pp. 119-126; GLENN HERALD SNYDER & PAUL DIESING, CONFLICT AMONG
NATIONS (Princeton University Press, 1977), pp. 48-52.
Case which
A negotiation game between a challenger (the party which wants to change the
illustrates
status quo) and a defender (the party which wants to preserve it). In this game the
the theory
parties, rather than failing to reach an agreement, prefer to make some kind of
compromise or have both parties make concessions. In this situation, the
challenger is demanding concessions from the defender using the threat that if he
refuses it will result in war between them.
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Commentary
on the case
According to critical risk theory, while one knows one’s own payoff, one does
not know the other’s precisely. However, there is an assumption that it is possible
to make a general estimate as to the extent of the other party’s payoff. Depending
on the extent of those payoffs it is possible to predict the strategies open to the
other party and the probability of them adopting each strategy. Accordingly, it is
possible for the estimated value of one’s own payoff and that of the other party to
change, and they can be manipulated depending on how each bargains (negotiates)
with the other.
In other words, the theory takes into consideration the possibility that the
demands made by the parties will change over time in the course of a negotiation,
and that the order of preference of the players will change accordingly.
An important point in this theory is that there is a limit to the amount of risk the
players can tolerate, and so when this threshold is exceeded they will make
compromises or concessions. That is to say, if the estimated likelihood (credibility)
of the other party sticking to a hardline policy (being uncompromising) is higher
than one’s own endurance threshold, one will compromise, and if lower one will
maintain one’s own hardline policy. The situation is such that one’s own choices
(strategies) change depending on whether the likelihood of the other person’s
hardline policy is too high to take a risk, or whether it is low enough so that the
risk can be thought to be worth taking.
What needs to be borne in mind is that whether oneself and the other party take
a strong stance or compromise depends on how credible you are relative to each
other (your critical risk), and so for instance the higher one’s own credibility is,
one will not adopt a compromise strategy unless the other party’s credibility
increases.
8-1-2 (Toshitaka Takeuchi) as revised by Prof. Takeuchi (20160202)
Element
Focus on interests, not positions. (to be more precise, one reaches or aims to reach
as far as possible an agreement which is not unsatisfactory to the parties, or at least
not as unsatisfactory as possible.) One does not seek to stall or break down
negotiations. While what constitutes a state (situation) which is not unsatisfactory
depends on the judgement of the negotiating parties, it would undeniably be
something which takes their position and interests into account.
Paraphrase
Create a situation whereby no justifiable objection exists.
Provided the parties each intend or aim to reach an agreement in their negotiation,
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an agreement which minimizes or removes sources of dissatisfaction to each of
them is the most desirable one. There is also a strong chance of such an agreement
being observed and maintained. At any rate, the focus is on the process of the
negotiation until an agreement is reached.
Theory
“Stable Set” as part of cooperative game theory
Contents of
① Description: In the course of a negotiation, an objection is voiced to a draft
the theory
agreement which has been proposed (a situation in which one personally
stands to gain a greater payoff by partnering with someone other than one’s
current partner). When a proposal which takes this objection into account is
made at the next stage, a counter-objection is likely to be made (the only thing
which is different is the player voicing the objection, but the reason for doing
so is essentially the same as above). An agreement (compromise) is reached at
the point that this series of objections and counter-objections comes to an end.
② Hypothesis: This comes within the category of a cooperative game, and
assumes that many (three or more) players are taking part.
A “cooperative game” generally means one in which if an agreement is reached
that agreement is adhered to. That is to say, adherence is assumed a priori.
However, in this particular case that this column is referring to, only those
agreements that are individually rational to a party will be adhered to by that party.
Thus, adherence is not assumed a priori. In other words, it means that agreements
other than these are ones in which one cannot see any increase in one’s personal
benefit.
・The theory assumes that a payoff can be proposed to the other party in the form of
a cardinal number.
・This summary is based on my personal interpretation of the theory.
Sources of
TOSHITAKA TAKEUCHI, GAME THEORY FOR POLICY RESEARCH (Minerva Books,
the theory
2011), pp. 227-282; MITSUO SUZUKI, NEW GAME THEORY (Keiso Books, 1994),
pp. 310-316.
Case which
This theory is useful for analyzing the stability of cooperation in a situation where
illustrates
there is no one party in parliament which has a majority, and there is conflict
the theory
between a large number of minority parties.
Commentary
on the case
A “stable set” is a set of payoff vectors where no “justifiable objection” exists.
“Justifiable” means that no counter-objection exists to a given objection. The
assumption is arguably that, in order for a negotiation to have a successful ending,
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the parties to that negotiation have no objections to the final proposal. Accordingly,
the stable set shows the scope within which a final agreement is possible.
An objection can be defined as a set y which satisfies the following conditions
where there is a coalition. k and h are the players forming that coalition, and there
exists a coalition C∈A in which k∈C, h∉C. Within this, a personally rational
payoff configuration (y;A) which satisfies the conditions yi>xi and ∀i∈C,
expresses an objection of k to the current coalition. xi is the payoff of player k
within the current coalition. In other words, it is possible for k to form a coalition
with a group of players which does not include h and obtain a better payoff.
Furthermore, if all the other members in that group are able to obtain at least the
same payoff than that which they currently have, h is forced to treat k’s objection
as having merit. This is because if h does not present a new distribution proposal
which is more beneficial for k, it is foreseeable that h itself will be excluded from
the cooperation and will be put at a disadvantage. The same is true for counter
objections.
9. Daniel FOOTE
10. Yuji EGUCHI
11. Kei HIRAI
11-1 (Kei Hirai)
Element
Separate the people from the problem.
Paraphrase
Separate emotions from facts.
Theory
Cognitive bias (Emotional bias)
Contents of
People’s decisions are inseparable from cognitive bias. Emotional biases such as
the theory
worry and fear have a particularly strong influence. Making decisions concerning
terminal care arouses particularly strong anxiety, so that certain decisions can be
strongly affected by it. For this reason, one separates the feelings which the people
involved in the decision hold from the facts on which they should make their
decision (such as the choice of place to receive care), deals with the anxiety by
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reducing its burden, such as by providing appropriate information or psychiatric
anxiety management methods, and then addresses the details of the decision
through fact-based debate.
Sources of
D. KAHNEMAN, P. SLOVIC & A. TVERSKY (eds.), JUDGMENT UNDER UNCERTAINTY:
the theory
HEURISTICS AND BIASES (Cambridge University Press, 1982), pp. 163-178.
Case which
＜A terminal cancer patient who wishes to remain at home (created by Hirai)＞
illustrates
■Patient: A 70-year old man. Currently in the palliative care ward of a hospital for
the theory
digestive cancer with 1-3 months left to live. “I want to go home” he says. His
cognitive functions are declining, and his physical condition is also worsening
gradually.
■Patient’s wife: She is deeply anxious about home-based care as the two of them
used to live at home together.
■Patient’s daughter: She feels that if her father must leave hospital, she should take
him back to her own home and look after him herself. She feels that if the ward
staff recommend he leaves the hospital it will be like he’s being driven out of the
place.
■Ward staff: They proposed the patient leaving the hospital as the last chance for
him to spend time at home. They want to realize the patient’s wishes.
Psychiatric consultant:
The consultant clarified with the ward staff the issues with each of the patient,
wife, daughter and medical staff, and proposed sorting the issues by separating
them into emotions (feelings) and facts.
Outcome of issue sorting by ward staff:
While the patient himself has a desire to return home, it was not exactly clear. His
wife was anxious (emotion) about being alone at home with her husband who is
seriously ill. The daughter was concerned (emotion) that if her father’s condition
got worse she would not be able to take him to the hospital. On the other hand, she
was aware that there were resources that could be used at home (fact).
Psychiatric consultant:
The family’s (the wife and daughter’s) anxiety was not simply due to the patient
coming out of hospital. Rather, the situation in which the patient would be placed
was the greatest cause of their anxiety, and so I proposed to them that when they
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felt concerned about other issues, they should deal with them as they would any
other concern such as by contacting someone straight away, and providing relevant
information.
Commentary
When making decisions in a medical situation, in particular in a terminal care
on the case
situation, emotions often heavily influence those decisions. The medical
practitioner can help to reach a smoother and more rational decision by separating
the emotions of the person making the decision from the facts on which they
should make their decision. As part of this specialists in psychology (psychiatrists
etc.) are trained to assess the person’s feelings, draw them out and address them.
11-2 (Kei Hirai)
Element
Focus on interests, not positions.
Paraphrase
Clarify a person’s various “wants”.
Theory
Social problem solving theory (Problem solving therapy)
Contents of
In social problem solving, “problems” are defined as the difference between the
the theory
state which one desires (“what I want”) and the actual state of things (“how things
are”). In negotiation situations where parties which have multiple standpoints are
involved, the state which each one desires (“what I want”) differs according to
their respective standpoints, and so it often becomes hard for them to reach
agreement. In such case it can be possible to find shared points of interest between
the parties by clarifying their multiple wants according to their respective
standpoints.
Sources of
T. J. D’Zurilla & M. R. Goldfried, “Problem solving and behavior modification”,
the theory
PP. 78, J ABNORMAL PSYCHOLOGY (1971), pp. 107-126.
Case which
＜A terminal cancer patient who wishes to remain at home (created by Hirai)＞
illustrates
■Patient: A 70-year old man. Currently in the palliative care ward of a hospital for
the theory
digestive cancer with 1-3 months left to live. “I want to go home” he says. His
cognitive functions are declining, and his physical condition is also worsening
gradually.
■Patient’s wife: She is deeply anxious about home-based care as the two of them
used to live at home together.
■Patient’s daughter: She feels that if her father must leave hospital, she should take
him back to her own home and look after him herself. She feels that if the ward
staff recommend he leaves the hospital it will be like he’s being driven out of the
place.
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■Ward staff: They proposed the patient leaving the hospital as the last chance for
him to spend time at home. They want to realize the patient’s wishes.
Psychiatric consultant:
When I asked the ward staff what the purpose of having the patient leave the
hospital was, it was confirmed to me that the principle of the palliative care ward
was to provide the patient with the care which suited their wishes, and that in the
present case it was to realize the patient’s desire to “go home” for what was
arguably the last time.
However, as they had not sufficiently conveyed this intention to the patient’s wife
and daughter, I advised them to explain again at their next meeting the principle on
which the ward operated and the reason why they were proposing having the
patient leave the hospital.
I understand that “leaving hospital” is not an interest (that is, not an objective in
and of itself), but rather a method for achieving a shared interest.
Outcome of the meeting between the ward staff and the family:
It was confirmed to the family that it was not in the hospital’s interests to force the
patient to go home, but rather the purpose was to realize the patient’s wish to go
home, and that this was of shared interest between the parties.
Commentary
In an example of terminal care, it is common for multiple stakeholders to ask each
on the case
other “what do you want?” (wants), that is, that there is no shared interest between
them. This comes about as a result of them not having properly explained or
discussed their original objectives. By each party with their respective standpoints
explaining to the others and discussing what it is they want, it becomes possible to
find shared interests between them.
11-3 (Kei Hirai)
Element
Invent options for mutual gain.
Paraphrase
Think of multiple options in the course of a brainstorming whilst reserving
judgement on their feasibility.
Theory
Social problem solving theory (Problem solving therapy)
Contents of
In social problem solving theory, in order to produce a solution a brainstorming
the theory
session is conducted in which one ① thinks of as many options as possible, ②
reserves judgement on whether each of these are achievable or not, and ③
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increases the variety of options by combining them together. Even in negotiations,
it is important to carry out the same kind of brainstorming and think of multiple
options whilst reserving judgement on their feasibility.
Sources of
LAURENCE MYNORS-WALLIS, PROBLEM-SOLVING TREATMENT FOR ANXIETY AND
the theory
DEPRESSION: A PRACTICAL GUIDE (Oxford
Case which
■Patient: A 70-year old man. Currently in the palliative care ward of a hospital for
illustrates
digestive cancer with 1-3 months left to live. “I want to go home” he says. His
the theory
cognitive functions are declining, and his physical condition is also worsening
University Press, 2005), pp. 39-73.
gradually.
■Patient’s wife: She is deeply anxious about home-based care as the two of them
used to live at home together.
■Patient’s daughter: She feels that if her father must leave hospital, she should take
him back to her own home and look after him herself. She feels that if the ward
staff recommend he leaves the hospital it will be like he’s being driven out of the
place.
■Ward staff: They proposed the patient leaving the hospital as the last chance for
him to spend time at home. They want to realize the patient’s wishes.
Psychiatric consultant:
When speaking to the ward staff about the family and the patient leaving hospital,
the consultant suggested that they did not present the sole option of “leaving
hospital”, but instead think of a range of options. After asking them such questions
as “how long is it possible for him to stay at home in his current state?”, “can you
accept if he has to leave hospital?”, and “what’s the worst-case scenario?”, this led
to them presenting the following options to the family:
•
Having the patient leave hospital for one week for the time being
•
Introducing them to a home nursing station or private home care service
•
Allowing the patient to come back to hospital when his condition
worsened
•
Permitting the patient to remain in hospital if the family could not make a
decision
Outcome of the meeting between the ward staff and the family:
They succeeded in deciding that the patient would go home, even though the ward
staff told the family that the patient did not have to do so if he was not feeling well.
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Additionally, the family said that “it would be a shame if he was not able to return
home after all the preparations you have made”.
Commentary
When medical practitioners are discussing solutions with a patient and their family,
on the case
it is common to propose solutions after filtering them based on feasibility from the
outset. In such case, it becomes difficult to reach an agreement because multiple
options have not been considered. It is also common for similar solutions to be
chosen because their feasibility is considered from a limited standpoint. It is
important here to reserve judgement on feasibility, suggest multiple options, and
then discuss each of them in detail.
12. RENGYO
12-1 (Rengyo)
Element
Ensure good communication.
Paraphrase
Design an environment which ensures good communication.
Theory
The concept of affordance and environmental design
Contents of
“Affordance” is said to be “information which is valuable” to “perceivers” in the
the theory
“environment”. “Good communication” is not solely dependent on speaking
volume and speed (delivery skill) – environmental factors such as the size and
temperature of the room in which the negotiation takes place, distance from the
other party, noise, clothing and so on, have an extremely strong influence. Because
perceived information influences the form of agreement in a negotiation, it is
important to design an environment which makes it easy to reach an agreement.
Sources
of
the theory
ORIZA HIRATA & RENGYO, DRAW OUT YOUR COMMUNICATIVE POWER – HOW TO
RUN THEATRE WORKSHOPS (PHP Paperbacks, 2009), pp. 158-159; JAMES J.
GIBSON (Translated by Takashi Kozaki and others), THE ECOLOGICAL APPROACH
TO
VISUAL PERCEPTION – LOOKING FOR PEOPLE’S PERCEIVED WORLD (Science
Co., Ltd., 1986), pp. 137-138 (Chapter 3).
Case which
(Created by Rengyo)
illustrates
Mr A, who works for Company A, is involved together with his boss in the
the theory
execution of new business Project X. Project X is a joint project run together with
Company A’s business partner Company B, and first finds success when Company
A’s know-how and Company B’s technology company come together. One day, Mr
A holds a meeting together with his boss and representative Mr B from Company
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B in order to discuss the project’s progress.
The meeting room they prepared was an open sun-lit space, fully equipped with
office supplies such as desks and whiteboards. They debated in that room for three
hours from morning including breaks, and while they made clear to each other
their respective interests and visualized information using the whiteboards, each
was so intent on securing their company’s interests that they did not reach common
ground.
At this point Mr A, on coming to the lunch break, proposed going into a
restaurant with a room with sunken kotatsu built into the floor. This kotatsu room
was a private room with tatami flooring, and while bright it had a calm, airy
atmosphere. While after removing their shoes they were eating lunch in this
relaxed environment and making small talk, as the meal came to a close a
compromise plan was proposed which involved giving a major concession. Mr A
and his boss discussed the plan with each other in front of Mr B, and showed Mr B
a plan which involved both sides making a partial compromise, and then in that
very same kotatsu room they reached an agreement on terms which involved each
of them meeting each other half-way. In the afternoon the parties returned to the
meeting room and finished up the relevant administrative proceedings.
Commentary
on the case
In this case, the first “environment” was a meeting space full of equipment for
holding discussions. The negotiators Mr A and Mr B, who were “perceivers”, had
implicitly obtained from that environment the “valuable information” that it was
“suited to putting forward and sharing formal information with each other which
needed to be understood”, and in actual fact behaved in such a way. However, this
was not enough for them to reach an agreement. Subsequently, during the lunch in
the new environment of the sunken kotatsu room, the design of the room itself,
which led them to have a meal with their shoes removed, and the tatami floor
environment, became “valuable information”, causing the “perceivers” Mr A and
Mr B to relax their stance of trying to secure their respective companies’ interests,
and so led to a compromise solution being proposed. If the necessary information
had not become clear during the morning’s discussion the lunchtime agreement
would never have happened, and even if in the meeting room they had proposed
taking off their shoes and sitting on the ground to relax, Mr A would hardly have
accepted it but rather would have been suspicious, wondering what it was Mr B
was up to, and it is likely the negotiations would have run into difficulty. We can
say that the respective environments of the morning and lunchtime led the parties
through the necessary process of first “clarifying information” and then “speaking
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one’s mind and searching for common ground”. It is also important to “design”
such an environment.
The situation in this case is based off the dedicated training meeting facility and
Space Alpha Kobe (http://www.sa-kobe.jp/) concept rooms provided by Fujitsu
Xerox.
13. Kazuyoshi FUKUZAWA
13-3 (Kazuyoshi Fukuzawa)
Element
Secure a good communication.
Paraphrase
The parties do not understand superficially their opinions each other, but
communicate their real intentions which is hard to show on conversation. To do so, it
is significant to secure a standard frame of communication referenceable to the
parties.
Theory
Toulmin Model of Argumentation
Contents
of A claim is supposed to be backed up by some empirical evidence. Furthermore, you
the theory
need a warrant to know why given evidence is good enough to support the claim. In
other words, you need to clarify collection of assumptions behind the warrant which
make the evidence possible to support the claim. This thinking process required
something more than just identifying what the evidence is. You have to know why
someone thinks that this is evidence. This thinking process will be helpful to see
multiple aspects of negotiation even when the opposing idea seems to be simple.
Sources
of KAZUYOSHI FUKUZAWA, GIRON NO LESSON (LESSONS IN ARGUMENTATION) 65-81
the theory
(NHK Publishing, 2002).
STEPHAN TOULMIN, THE USES OF ARGUMENT 87-100 (Cambridge University Press,
Updated ed. 2003).
Case
which
The following description concerning the role of warrant in argument is
illustrates the
created by Kazuyoshi Fukuzawa based on the article #1 by Stephen Labaron entitled
theory
A NATION CHALLENGED: LIABILITY; Insurer Sues to Limit Its Payout for
World Trade Center (October 23, 2001) and on the article #2 by Joseph B. Treaster
entitled A NATION CHALLENGED: THE LIABILITY; Insurance Companies
Favor a Plan to Limit Terrorism Losses (November 6, 2001).
One of the biggest problems that Larry A. Silverstein, WTC leaseholder
and the insurer, Swiss Re was to argue whether or not two hijacked airliners that
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crashed into the towers constituted two separate attacks or a single insurable
incident.
The real estate executive Larry A. Silverstein asked for $7 billion from
insurers. He argues that each of the two hijacked airliners that crashed into the
towers constituted a separate attack covered by $3.5 billion (total $7 billion) in
insurance. On the other side, the insurer, Swiss Re, sued to limit how much it will
pay to half of what the buildings' managers are asking ($3.5 billion). Swiss Re, the
insurer liable for the largest share of the claims asked the Federal District Court in
Manhattan to determine that it and the other insurers would be liable for only $3.5
billion because both crashes amounted to a single insurable incident.
To make the matter worse, there was no insurance policy yet issued on the
properties when WTC were destroyed. Since the Port Authority transferred
management of the properties to a group of investors led by Mr. Silverstein shortly
before the attack, the insurance policy was under negotiation at the time the
buildings collapsed and final wording had not been completed.
Mr. Silverstein looked at the incident claiming that the two separate
buildings were destroyed in two separate plain crushes while Swiss. Re. viewed the
same incident as one insurable phenomenon. In other words, Mr. Silverstein looked
at the issue from psychological perspectives while Swiss Re. took a whole terrorist’s
attach as one political or ideological behavior. Both of them agreed that the two
buildings were destroyed separately with some time lag but their views concerning
the whole phenomenon were quite different. In terms of Toulmin’s argumentation
model, they have totally different warrants for the same phenomenon.
This whole issue was too big for the local court to deal with and the
Congress started to involve with the resolution. Congress’s warrants applied to the
argumentation between Mr. Silverstein and Swiss. Re. could be the following. Their
warrants were characterized by the prospective view for the future damage caused
by the terrorists, future economy influence of insurance industry not taking the
current issue involved with the two parties.
Probable Congress’s warrant
1)
It would be beneficial to have a plan that would help the insurance
industry deal with losses from future terrorist attacks.
2)
A House plan, which provides long-term loans, is less appealing because it
sets no limits on how big their losses might eventually be.
3)
Without some measure of their potential losses, the insurers cannot set
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prices and provide coverage against terrorist attacks.
4)
Banking and real estate executives assume that such coverage is crucial for
the economy. Bankers would not make loans on projects unless they were insured
against terrorist attacks.
5)
The insurers are reluctant to criticize either proposal because they would
rather have some assistance than none.
6)
The insurers would not include terrorism coverage unless some way is
found to limit their risks.
7)
If the industry splits, the chances increase of something bad getting
enacted.
The insurers favored a Senate plan that would require them to pay for the
first $10 billion in damage. Another aspect of the Senate plan, similar to the White
House’s proposal, is that the government would pay for 90 percent of the losses from
a terrorist attack after the insurers paid the first $10 billion.
Senate, House, and the White House
Article #1
http://www.nytimes.com/2001/10/23/business/nation-challengedliability-insurer-sues-limit-its-payout-for-world-trade-center.html
Article #2
http://www.nytimes.com/2001/11/06/business/nation-challengedliability-insurance-companies-favor-plan-limit-terrorism.html
Commentary
on the case
13-4 (Kazuyoshi Fukuzawa)
Element
Ensure good communication.
Paraphrase
Achieve complete mutual understanding by establishing friendly relations in
advance (take the initiative in negotiations).
Theory
Contents
the theory
Leading effect, recent effect, order effect
of
In a psychological experiment on impressions given by people, a person was
depicted to half of the people taking part in the experiment as “deeply envious,
stubborn critical, impulsive, studious and intellectual”, and they were asked “how
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emotional” that person was. The remaining half of the experiment participants were
asked the same questions, but the order of depiction was changed to “intellectual
and studious, impulse, critical, stubborn and deeply envious”, so that it was directly
opposite to the order depicted to the first half of the participants. As a result, it was
found that the personality traits which were shown first had a stronger impact than
those which were shown later (Innami, 2002). First impressions are important as
they linger on afterwards.
In memory experiments in psychology (e.g. being shown around 20 items and
then memorizing and recalling them back in order), it is reported that items towards
the start and end are easiest to recall. It is thought that this is due to them being
stored in long- and short-term memory respectively. This phenomenon implies that
there are situations where a leading effect occurs, and where the impression of later
items is stronger.
Sources
of ICHIRO INNAMI, SUPERB DECISION MAKING (Chuko Paperbooks, 2002), pp. 111-112,
the theory
116-118
Case
The following is a direct quotation from Psychology Today.
which
illustrates the
theory
http://www.psychologytoday.com/blog/am-i-right/201302/the-power-first-impressio
ns
The Power of First Impressions
The sequence in which we encounter things affects how we judge subsequent
information (Published on February 5, 2013 by Arthur Dobrin, D.S.W. in Am I
Right?)
Do first impressions matter? A colleague thinks so. As each semester begins, he
greets his students wearing a jacket and tie. “You make only one first impression,”
he says. So while during the rest of the semester he teaches class in his usual, more
casual garb, during the first week he presents a different image.
Looking professional on the first day, he believes, will carry over through into the
rest of the semester, when he reverts to the work clothes he will don until he meets a
new batch of students.
His thought is that students will remember their first encounter positively and more
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readily give him the benefit of the doubt as the semester proceeds because they have
been primed to respect him through that favorable first impression.
The sequence in which we encounter things affects how we judge subsequent
information. The exaggerated impact of first impressions is related to the halo effect,
that phenomenon whereby the perception of positive qualities in one thing or part
gives rise to the perception of similar qualities in related things or in the whole.
Commentary
on the case
14. Rikiya KUBOYAMA
16. Shozo OTA
16-1 (Shozo OTA)
Element
Focus on interests, not positions.
Paraphrase
Stop discussing in terms of rights and duties, but focus on the consequences.
Theory
Utilitarianism and Pragmatism
Contents
of All arguments should be “evidence-based,” i.e., claims should be substantiated by
the theory
facts and evidence. Focus on the consequences for your side, for your opponents,
for the third parties, and for the society at large, if the opponents’ claims and/or
reasoning were accepted and implemented. Focus also on the consequences for
your side, for your opponents, for the third parties, and for the society at large, if
your claims and/or reasoning were accepted and implemented. Then compare the
two consequences, yours and your opponents’.
Sources
of JOSHUA GREEN, MORAL TRIBES 322-327 (Penguin Press, 2013).
the theory
Case
which
The great controversy ignited by the Federal Supreme Court judgment
illustrates the
in Roe v. Wade, 410 U.S. 113 (1973) which had legalized abortion on the ground
theory
that the right of privacy in the Constitution protects the women's access to
abortion.
The pro-lifers scathingly criticize the ruling and vehemently oppose
abortion, claiming that inseminated eggs and fetuses are already human beings
and that abortion is murder. The pro-lifers, basically political conservatives, try to
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forcefully close down abortion clinics, make demonstrations protesting abortion,
and lobby to law makers to enact State laws that severely limit the eligibility of
abortion.
On the other hand, the pro-choicers zealously support the Supreme
Court ruling and abortion, claiming that the women's right to choose abortion is
protected by the fundamental human right and the Constitutional right of privacy.
The pro-choicers, basically political liberals, make demonstrations in support of
abortion clinics and try to vacate abortion-limiting State laws by constitutional
litigation in the Federal Courts.
It seems the two sides are politically and ideologically so far apart that
there is no room what so ever for both parties to compromise and to go in the
middle way.
Commentary
So long as the both parties persist with their positions, i.e., no abortion at all or
on the case
right to abortion, the controversy will go on for ever. In fact some doctors of
abortion clinics were killed by the pro-life extremists in the past. Joshua Green, in
his book, Moral Tribes, claims that the way out of this standoff can only be
achieved by focusing not on the positions but on the consequences. He adopts
utilitarian pragmatism and analyzes from the perspective thereof, he concludes
that the pro-choicers have more merits than the pro-lifers.
16-2 (Shozo Ota)
Element
Insist on using objective criteria.
Paraphrase
Be mindful of the fact that criteria which look fair and neutral when seen from
one’s own perspective are rarely objective.
Theory
Contents of
the theory
(Unconsciously) biased fairness theory
“(Unconsciously) biased fairness theory” means the tendency in humans to treat
circumstances or information which are beneficial to their own position as fair,
even though not self consciously, according to the position in which they have
been placed – whether claimant or defendant, creditor or debtor, or so on.
(While this is called a “theory” in social psychology, one can say that this is
called a theory in the sense that it is a generalization of a hypothesis confirmed
through experimentation).
As there is a bias towards treating criteria which are favorable to oneself as fair,
and of treating criteria which are favorable to others as unfair, objective criteria
cannot be established between the parties unless these unconscious biases are
overcome. Accordingly, this theory means having the parties listen to the
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evaluation of a third party (or group) which they both agree is fair, or suggesting
criteria which are beneficial to the other but fair and objective criteria to oneself.
Sources
of
the theory
① Shozo Ota & Masahiro Fujita “The social impact of the system whereby losers
in lawsuits pay the winners’ legal fees: Report on the results of a preliminary
fact-finding survey” 54 (1) FREEDOM AND JUSTICE, pp. 20-37.
②Linda Babcock, G. Loewenstein, et al., “Biased Judgments of Fairness in
Bargaining”, 85 (5) THE AMERICAN ECONOMIC REVIEW, pp. 1337, 1337-1343.
③ROGER FISHER, BASIC NEGOTIATING STRATEGY: INTERNATIONAL CONFLICT FOR
BEGINNERS (Allen Lane, 1971), pp. 112-113.
Case which
(Source: Corresponding to parts ①～③ of “Sources of the theory”)
illustrates
① Burden on the loser of a lawsuit to pay the other side’s legal fees (A: When you
the theory
win a lawsuit, should you make the other side pay your legal fees?
B: If you lose a lawsuit, should you bear the other side’s legal fees?”
② An example of settlement negotiations in a traffic accident lawsuit, based on a
real case: The experiment participants are divided at random into claimant and
defendant sides. They are made to read the case and to write down an estimate of
what they think the amount would be if a judge gave a verdict. The amount can
range from nothing to $100,000. Where the claimant side is higher at $15,000 and
there is little difference between the claimant and the defendant estimates then
most times a settlement is reached, but if the difference is considerable
negotiations break down in 30% of cases. However, when the participants are
made to predict the judgement before choosing whether to take the claimant or
defendant side, negotiations break down in only 6% of cases.
③The most important group to whom the demand should appear legitimate is the
group with the decision to make. Success in getting them to make a decision
depends on how that decision looks in their eyes. Attempts to legitimize a desired
decision should start with them in mind. […] If we expect them to change their
minds, we must deal with what they think is right and wrong.
Governments usually formulate demands in just the opposite way: we first try to
make the desired decision appear legitimate in the eyes of our own people. […] We
justify our actions in Vietnam by identifying our adversaries as evil aggressors
acting in a grossly illegitimate way. They are murderers and violators of
international law. They are behaving outrageously. Such characterization helps
rally support for our side both domestically and, perhaps, among third parties. But
it makes our adversary even less willing to listen to what we have to say. It makes
it less likely that our adversary will make the decision we want. It often makes
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more likely the failure of our international efforts, with its attendant domestic
political costs.
[…] An attempt to point out to an adversary that he ought to make a decision
where the ‘oughtness’ is based on our ideas of fairness, history, principle, or
morality is at best a diversion from the immediate task at hand; at worst it is
destructive of the result we want. […]
If we begin by making our objective legitimate to the home audience, we may also
tie our hands. […]
Commentary
① The participants were first asked concerning the loser’s liability to pay whether
on the case
they were in favor of or against the system whereby if they won a lawsuit they
could force their opponent to pay their legal fees. When they were subsequently
told that under this same system if they lost a lawsuit they would be required to
bear the winner’s legal fees in turn, and asked if they were in favor or against this,
all those previously in favor changed their stance to oppose it, and vice versa. The
same thing happened even after switching the order of the questions.
② Although the participants know that they are on the side of either the claimant
or the defendant, and think that they have written down the judgement amount
which they consider right without regard to their roles, there is such a difference
between the amounts estimated by each, and where this is a large one they are
unable to reach a settlement. That is to say, their standpoint is having an
unconscious effect on their decision. When asked to predict the judgement before
choosing whether to be on the claimant or defendant side no such bias arose, and
the settlement did not break down. When people unconsciously project their
standpoint onto the situation and as a result become greedy when predicting the
judgement, anchoring causes this to influence the negotiations so that they cannot
reach an agreement.
③ By asking not whether one thinks the situation is fair, but whether it is fair as
seen by the other, one can control oneself from unconsciously projecting ones
standpoint onto the situation. Governments, however, do the opposite of this.
16-3 (Shozo Ota)
Element
Ensure good communication.
Paraphrase
Create a proposal which is easy for the other to accept.
Theory
Framing effect
Contents of
The same proposal of a theoretical nature can have a completely different
the theory
impression on the person receiving it according to how it is framed (the context in
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which it is presented). What this means is that, just as with phrases like “the glass
is half empty” or “the glass is half full”, “four out of 10 people will die” or “six out
of 10 people will live”, “the claimant’s 1,000,000 yen settlement proposal is
reduced by 600,000 yen” or “the defendant’s 100,000 yen settlement proposal is
increased by 300,000 yen”, people’s evaluation of and attitude to the situation can
change greatly with differences in framing such as the method of expression or
context, even if logically speaking it is the same situation.
Sources
of
DANIEL KAHNEMAN, THINKING, FAST AND SLOW (Penguin Books, 2012), pp.
the theory
363-374, Chapter 34: Frames and Reality.
Case which
① Negotiations over tax payments (Source: DANIEL KAHNEMAN, THINKING, FAST
illustrates
AND SLOW (Penguin
the theory
larger for the rich than for the poor. II: The childless poor should pay as large a
Books, 2012), pp. 369-370) [I: The child exemption should be
surcharge as the childless rich. III: Tax exemptions for families with children
should be at the same rate for low and high income earners.]
② (Source: An edited version of a story told by Mr Raymond Holtz, founder of the
San Francisco Community Board Program, during a speech as guest speaker at the
Daini Tokyo Bar Association 70th Founding Anniversary Symposium “The Future
State of Bar Association Arbitration”)
Seller A and buyer B entered into a sale and purchase agreement for product α at a
price of 100,000 yen. A change in the state of affairs took place whereby A was
unable to get product α into stock for less than 100,000 yen, when it was meant to
have been 80,000 yen. A asked B to terminate the agreement or to raise the price to
110,000 yen. B, who had planned to sell the product on for 120,000 yen, refused to
accept this one-sided price increase and took A to court. The two entered
settlement negotiations.
A: Framing of rights and obligations: Assuming the agreement is valid, A has an
obligation to stock the product for 100,000 yen and deliver it to B for the same
amount, and B has the right to receive the product for 100,000 yen. If we take this
as the starting point then A has no room for negotiation.
B: Framing of commitment to mutual benefit: This agreement was originally
intended for A and B to each make a 20,000 yen profit. If we go based off this,
then B has an expectation that it will make a 20,000 yen profit for performing the
agreement. A had made a commitment to B that B would obtain this profit. B
cannot be satisfied with less than 20,000 yen. If we work off this assumption, then
A can only settle by compromising to B and taking a loss.
C: Framing of interests: If we go based off the situation prior to the transaction,
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then the starting point is equal. A win-win scenario can be achieved even by
changing the price to 110,000 yen (creating a profit of 10,000 yen each). A would
be able to reach a settlement not by having B compromise, but by mutual benefit to
itself and B.
Commentary
While I, II and III in ① and A, B and C in ② above are in each case logically the
on the case
same situation, different evaluations of the situation are produced according to the
differences in framing.
①: While most people would not support the idea of increasing exemptions for
the rich as in I (regardless of what they would call themselves), III produces little
emotional backlash given the equality in the rate of exemption between rich and
poor. However, logically speaking the amount of the exemption would still be
larger for rich people as in I. Should one change the frame around and call for
additional taxation on families without children, few people would support
additional taxation on the rich and poor at the same amount, but given that the
amount of tax paid by families with children would decrease (because families
with children would not pay additional tax), I and III are at the end of the day the
same. People’s level of support and agreement or disagreement is heavily affected
by whether the issue is framed as exempting an absolute amount or a relative
percentage (I vs III), or as an exemption from tax or an additional tax charge (I and
III vs II).
②: While the question of how much the withholding price and surplus is and how
much the stock price has changed is the same, room for negotiation appears or
disappears depending on whether the frame is one of rights and obligations,
commitment to mutual benefit, or of interests.
16-4 (Shozo Ota)
Element
Make a carefully crafted commitment.
Paraphrase
Make your commitments credible (believable).
Theory
Credible commitments
Contents of
the theory
Credibility is a problem with all strategic moves. If your unconditional
move, or threat or promise, is purely oral, why should you carry it out if it turns
out not to be in your interests to do so? But then others will look forward and
reason backward to predict that you have no incentive to follow through, and your
strategic move will not have the desired effect. (p. 142)
[...]
We now offer eight devices for achieving credible commitments. Like
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the Buddhist prescription for Nirvana, we call this the “eightfold path” to
credibility. Depending on the circumstances, one or more of these tactics may
prove effective for you. Behind this system are three underlying principles.
The first principle is to change the payoffs of the game. The idea is to
make it in your interest to follow through on your commitment: turn a threat into a
warning, a promise into an assurance. This can be done through a variety of ways.
1. Establish and use a reputation.
2. Write contracts.
Both these tactics make it more costly to break the commitment than to keep it.
A second avenue is to change the game to limit your ability to back out
of a commitment. In this category, we consider three possibilities. The most radical
is simply to deny yourself any opportunity to back down, either by cutting yourself
off from the situation or by destroying any avenues of retreat. There is even the
possibility of removing yourself from the decision-making position and leaving the
outcome to chance.
3. Cut off communication.
4. Burn bridges behind you.
5. Leave the outcome to chance.
These two principles can be combined: both the possible actions and
their outcomes can be changed. If a large commitment is broken down into many
smaller ones, then the gain from breaking a little one may be more than offset by
the loss of the remaining contract. Thus we have 6. Move in small steps.
A third route is to use others to help you maintain commitment. A team may
achieve credibility more easily than an individual. Or you may simply hire others
to act in your behalf.
7. Develop credibility through teamwork.
8. Employ mandated negotiating agents. (pp. 144-145)
Sources
of
AVINASH K. DIXIT & BARRY NALEBUFF, THINKING STRATEGICALLY (W. W. Norton,
the theory
1993), pp. 142-145.
Case which
(From the screenplay of the movie “Intolerable Cruelty” 2003)
illustrates
MARYLIN: As you are well aware, my previous marriage ended with an
the theory
unjustified strain on my reputation. My motives were questioned. I was slandered
in court.
DOYLE:
You did good, Massey!
MARYLIN: As you are well aware, my previous marriage ended with an
unjustified strain on my reputation. My motives were questioned. I
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was slandered in court.
DOYLE:
You did good, Massey!
MARYLIN: Therefore in an effort to remove any trace of suspicion from my sweet
Howard -- I wish to execute a pre-nuptial agreement.
DOYLE:
And – there’s no talking her out of it. Believe me, I’ve tried.
MARYLIN: They say the Massey pre-nup has never been penetrated.
DOYLE:
She said “penetrate.” Heh heh heh.
MILES:
Oh, for the love of...
MARYLIN: That is true, isn’t it Miles? Your pre-nup is the best there is?
MILES:
That is correct. Not to blow my own horn, but they devote an entire
semester to it at Harvard Law.
DOYLE:
Harvard? Whoa, Daddy!
MILES:
I just want to make sure that you both understand what you’re asking
for here. The Massey pre-nup provides that in the event of a
dissolution of the marriage for any reason, both parties shall leave it
with whatever they brought in, and earned during. No one can profit
from the marriage. The pre-nup protects the wealthier party.
DOYLE:
Well -- at the moment, that’d be me.
MILES:
And without it, that party is exposed -- a sitting duck. No wriggle
room.
DOYLE:
A Wriggle Room! Maybe we should put that in the Malibu house.
Screw the screening room!
MILES:
(slightly sickened)
-- and we are sure... we are both sure that's what we want?
MARYLIN: Absolutely.
.....
RABBI BOLENKSY: Do you Chaim David Doyle, take Marylin to be the Barbara
to your Wolfgang though the lean years as well as those that are
heavily marbled?
DOYLE:
I do.
RABBI BOLENSKY: And do you, Marylin Rexroth, take Chaim to be the roux in
your bechamel? The stock in your sauce?
MARYLIN: I do.
MILES:
Argh.
RABBI BOLENSKY: Then, by the power vested in me by the state of California,
and as the maitre’d in the Prix Fixe Four Star Restaurant of Life, I
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now pronounce you -- man and wife...
.....
DOYLE:
And I’m going to start this marriage by EATING MY WORDS.
Because the hot hors d’oerve of this love story is -- Pre-nup
Primavera! [He reaches into his breast pocket and withdraws a piece
of paper.]
DOYLE:
Carmine! Bring on the Pesto!
DOYLE:
This is for you, darling. [He starts tearing strips off the piece of paper,
dipping them into the sauce, and eating them. His mouth stuffed with
paper, Doyle repeats:]
DOYLE:
This is for you, Darling.
MILES:
Brilliant.
WRIGLEY: Why is he doing that?
MILES:
Brilliant. It’s brilliant. He's eating the pre-nup.
DOYLE:
This is for you, Darling!
WRIGLEY: That’s -- the most romantic thing I’ve ever seen -- in my LIFE!
DOYLE:
Commentary
on the case
THIS IS FOR YOU, DARLING!
Rather than trying to marry the wealthy groom Doyle for his money, bride
Marylin wanted to be sure that their marriage commitment was made for true love,
and so entered into a marital property agreement (pre-nup), so that even if it came
to a divorce the courts would be sure to enforce the agreement so that she would
receive no part of her husband`s assets whatsoever. Through this the bride`s
commitment became a “credible commitment”.
By contrast groom Doyle, in order to remove bride Marylin’s fear that he
wanted to marry her because he was superficially attracted by her youth and
beauty, and that when with time her looks faded he would change her for a
younger, more beautiful woman, and in order to make sure that their commitment
to marry for true and eternal love was credible, destroyed the pre-nup by dipping it
in sauce and eating it in front of the reception guests, thereby taking the risk that if
he had a change of heart and divorced her for a younger woman he would have to
give her his assets. Through this the groom`s commitment became a credible
commitment (however, the bride’s commitment ceased to be credible).
16-4-2 (Shozo Ota)
Element
Make a carefully crafted commitment.
Paraphrase
Make the other person trust that you will be sure to do what you promise.
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Theory
Credible commitment
Contents of
the theory
Credibility is a problem with all strategic moves. If your unconditional
move, or threat or promise, is purely oral, why should you carry it out if it turns
out not to be in your interests to do so? But then others will look forward and
reason backward to predict that you have no incentive to follow through, and your
strategic move will not have the desired effect. (p. 142)
[...]
We now offer eight devices for achieving credible commitments. Like
the Buddhist prescription for Nirvana, we call this the “eightfold path” to
credibility. Depending on the circumstances, one or more of these tactics may
prove effective for you. Behind this system are three underlying principles.
The first principle is to change the payoffs of the game. The idea is to
make it in your interest to follow through on your commitment: turn a threat into a
warning, a promise into an assurance. This can be done through a variety of ways.
1. Establish and use a reputation.
2. Write contracts.
Both these tactics make it more costly to break the commitment than to keep it.
A second avenue is to change the game to limit your ability to back out
of a commitment. In this category, we consider three possibilities. The most radical
is simply to deny yourself any opportunity to back down, either by cutting yourself
off from the situation or by destroying any avenues of retreat. There is even the
possibility of removing yourself from the decision-making position and leaving the
outcome to chance.
3. Cut off communication.
4. Burn bridges behind you.
5. Leave the outcome to chance.
These two principles can be combined: both the possible actions and
their outcomes can be changed. If a large commitment is broken down into many
smaller ones, then the gain from breaking a little one may be more than offset by
the loss of the remaining contract. Thus we have 6. Move in small steps.
A third route is to use others to help you maintain commitment. A team may
achieve credibility more easily than an individual. Or you may simply hire others
to act in your behalf.
7. Develop credibility through teamwork.
8. Employ mandated negotiating agents. (pp. 144-145)
Sources
of
AVINASH K. DIXIT & BARRY NALEBUFF, THINKING STRATEGICALLY (W. W. Norton,
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the theory
1993), pp. 142-145.
Case which
Rakugo (comic story) "Parent/child Sake" Shosan Yanagiya (fifth generation)
illustrates
［Lead-in］Summary: A man declares that he will abstain from alcohol for a year,
the theory
and swears before god not to drink. A friend who is a bad influence comes to him
and says that he should be allowed to drink in the evenings if he otherwise abstains
from alcohol two years. The man is convinced by this and says, “in that case, if I
can drink in the mornings too, then I will abstain for three years!” Thus, he ends up
not doing anything.
［Main story］Summary: There was a father and son who both drank heavily. The
father recommended that his son quit drinking, but as this was hard for just one of
them to do, they decided to quit together. One cold winter evening, the father loses
his self control and has a drink. Roaring drunk, he sees his son come home, also
roaring drunk, after being urged to drink at a meeting.
Commentary
An example of trying and failing to make a commitment credible.
on the case
The point of entering a contract as referred to in ② above, is that a third party
(the neutral third party that is a court, that is to say, the State) will enforce it if
broken. This means making one’s commitment to fulfill a promise credible by
placing oneself into such a situation by entering a legally binding agreement. In
this case the father tries to make his declaration that he would abstain from
drinking credible by placing himself into the situation whereby a neutral and fair
“god” would be constantly watching over him in place of the court (State), and
would enforce that commitment in the form of heavenly punishment. However,
alluding to his bad company, he fails to stick to his promise.
The father makes use of the method of creating credibility through the teamwork
referred to in ⑦ above by forming a team with his son and together swearing to
abstain from drinking. However, in the end the two of them give in to temptation.
16-4-3 (Shozo Ota)
Element
Make a carefully crafted commitment.
Paraphrase
Make the other person trust that you will be sure to do what you promise.
Theory
Credible commitment
Contents of
the theory
Credibility is a problem with all strategic moves. If your unconditional
move, or threat or promise, is purely oral, why should you carry it out if it turns
out not to be in your interest to do so? But then others will look forward and reason
backward to predict that you have no incentive to follow through, and your
strategic move will not have the desired effect. (p. 142)
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[...]
We now offer eight devices for achieving credible commitments. Like
the Buddhist prescription for Nirvana, we call this the “eightfold path” to
credibility. Depending on the circumstances, one or more of these tactics may
prove effective for you. Behind this system are three underlying principles.
The first principle is to change the payoffs of the game. The idea is to
make it in your interest to follow through on your commitment: turn a threat into a
warning, a promise into an assurance. This can be done through a variety of ways.
1. Establish and use a reputation.
2. Write contracts.
Both these tactics make it more costly to break the commitment than to keep it.
A second avenue is to change the game to limit your ability to back out
of a commitment. In this category, we consider three possibilities. The most radical
is simply to deny yourself any opportunity to back down, either by cutting yourself
off from the situation or by destroying any avenues of retreat. There is even the
possibility of removing yourself from the decision-making position and leaving the
outcome to chance.
3. Cut off communication.
4. Burn bridges behind you.
5. Leave the outcome to chance.
These two principles can be combined: both the possible actions and
their outcomes can be changed. If a large commitment is broken down into many
smaller ones, then the gain from breaking a little one may be more than offset by
the loss of the remaining contract. Thus we have 6. Move in small steps.
A third route is to use others to help you maintain commitment. A team may
achieve credibility more easily than an individual. Or you may simply hire others
to act in your behalf.
7. Develop credibility through teamwork.
8. Employ mandated negotiating agents. (pp. 144-145)
Sources
of
the theory
Case which
illustrates
the theory
AVINASH K. DIXIT & BARRY NALEBUFF, THINKING STRATEGICALLY (W. W. Norton,
1993), pp. 142-145.
I want to borrow money, so I say that I will be sure to return the money I
borrow. The lender does not believe me.
Methods for making credible a commitment to repay borrowed money:
① Create a contract.
② Provide security.
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③ Provide collateral.
Commentary
The legal system for making commitments credible:
① Contract: By entering into a legally valid contract, contract law becomes
on the case
applicable. As a result, breaching the contract will lead to one losing a
lawsuit in court and having the contract enforced against oneself by state
power, an independent third party with which there is no possibility of
renegotiation. Through doing so, a mere verbal promise to repay becomes
a credible commitment.
② If one provides security and does not fulfill one’s repayment obligations,
this will lead to one having the security enforced against oneself, even
without a judgement or without going through any of the enforcement
proceedings referred to in ① above. In this way, a mere verbal promise to
repay becomes a credible commitment.
③ If one provides collateral and does not fulfill one’s payment obligations,
ownership rights to the property provided will pass to the other party, even
without going through any of the proceedings referred to in ① and ②
above. In this way, a mere verbal promise to repay becomes a credible
commitment.
16-5 (Shozo Ota)
Element
Prepare a better “BATNA”.
Paraphrase
It is more advantageous in negotiations for the damage to be limited in the event
talks break down.
Theory
Contents of
the theory
Mini-max strategy, exit strategy, opportunity cost
By adopting a strategy of seeking to minimize the amount of damage caused in
the event of a worse-case scenario (a “mini-max strategy”), this creates room for
negotiation and enables one to bargain advantageously. When negotiations break
down, one must give precise and thorough consideration to all the potential
consequences of the situation.
Because a party’s negotiating power is greater if leaving the negotiations would
lead to a better outcome, one should prepare such an exit in advance (have an “exit
strategy”). For example, an employee who would not be in hardship if they quit
their job can progress labor, pay and promotion negotiations more advantageously
than one who is struggling to make ends meet. When seeking to reach an
agreement with another person, one should implement that agreement after first
considering fully what value is being lost which would have been gained from
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making a different agreement, whether with the same or a different person (the
“opportunity cost”).
Sources
of
ROBERT D. COOTER & THOMAS S. ULEN (Translated by Shozo Ota), LAW AND
the theory
ECONOMICS (New edition) (Shoji Homu, 1997), pp. 49-50, 117-118, 58-66.
Case which
(Source: RYO KUROKI, MAJOR INVESTMENT BANKS (2nd volume) (Diamond-sha,
illustrates
2005), pp. 193-194)
the theory
Katsuragi ordered Japanese rice wine, and began by pouring his own drink.
The restaurant was almost completely full, partly due to the fact that it was
Friday. Many of the customers were elderly, and were eating their meals in silence.
“By the way, have you got “f--k you money” yet?” Fujisaki raised his head and
asked. “F--k you money” means enough money so you can tell your boss “F--k
you!”, in other words, enough money to live off if you lose your job. Fujisaki told
me this word when we first met on the New York metro in the summer of 1987.
“More or less”.
It had been 12 years since he had joined Morgan Spencer. He entered the
company in the 90s, and after the Dow Jones Average went from $2,800 to close to
$7,000 the value of his stock options shot up – Katsuragi’s personal assets had
reached around 500 million yen.
“Isn’t that great”.
Fujisaki smiled. “I’d like to say ‘f--k you’ too, soon, once I’ve got enough
money together”.
Commentary
Leaving an unpleasant boss or a job one hates means completely severing a
on the case
relationship. Where the loss caused by doing so is too hard to bear, one may have
no choice but to cry oneself to sleep at night instead. If one has enough money to
be able to eat even if one loses one’s job, then there is no need to be servile to that
unpleasant boss or continue with that unpleasant job. It also avoids creating
problems for one’s family.
16-5-2 (Shozo Ota)
Element
Prepare a better “BATNA”.
Paraphrase
A person with nothing to lose is in the strongest position. The person with the
strongest parachute is the most free.
Theory
Contents of
the theory
Mini-max strategy, opportunity cost, exit incentive
By adopting a strategy of seeking to minimize the amount of damage caused in
the event of a worse-case scenario (a “mini-max strategy”), this creates room for
negotiation and enables one to bargain advantageously. When negotiations break
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down, one must give precise and thorough consideration to all the potential
consequences of the situation.
Because one’s negotiating power is greater if leaving the negotiations would
lead to a better outcome, one should prepare such an exit in advance (have an “exit
strategy”). For example, an employee who would not be in hardship if they quit
their job, can progress with labor, pay and promotion negotiations more
advantageously than one who is struggling to make ends meet. When seeking to
reach an agreement with another person, one should implement that agreement
after first considering fully what value is being lost which would have been gained
from making a different agreement, whether with the same or a different person
(the “opportunity cost”).
Sources
of
ROBERT D. COOTER & THOMAS S. ULEN (Translated by Shozo Ota), LAW AND
the theory
ECONOMICS (New edition) (Shoji Homu, 1997), pp. 49-50, 117-118, 58-66.
Case which
David Kocieniewski, “Whistle-Blower Awarded $104 Million by I.R.S.,” The New
illustrates
York Times, September 11, 2012.
the theory
Sometimes, crime does pay.
Bradley C. Birkenfeld, a former banker at UBS, recently served two and a half
years in prison for conspiring with a wealthy California developer to evade United
States income taxes.
But Mr. Birkenfeld, 47, has a lot to show for his time and effort: The Internal
Revenue Service acknowledged on Tuesday that information he had provided was
so helpful that he would receive a $104 million whistleblower award for revealing
the secrets of the Swiss banking system.
By divulging the schemes that UBS used to encourage American citizens to dodge
their taxes, Mr. Birkenfeld led to an investigation that has greatly diminished
Switzerland’s status as a secret haven for American tax cheats and allowed the
Treasury to recover billions in unpaid taxes.
In addition to paying $780 million in 2009 to avoid criminal prosecution, the bank
turned over account information regarding more than 4,500 American clients.
The disclosure of Swiss banking information — which caused a fierce political
debate in Switzerland before winning approval from the country’s Parliament —
set off such a panic among wealthy Americans that more than 14,000 of them
joined a tax amnesty program.
I.R.S. officials say the amnesty program has helped recover more than $5 billion in
unpaid taxes.
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Element Theory Tables
Translated: 20160208 (except for 1-1, 1-2, 13-3, 16-1)
Last update: 20160318
Commentary
on the case
While it is possible to avoid danger to the public’s life and health through
whistleblowing, the whistleblower themselves can end up being fired from their
job, demoted or in some cases put in danger of violence, coercion or death.
While Japan has also established a Whistleblower Protection Act for the sake of
the public interest in whistleblowing, it simply says that no penalties must be
imposed, and does not rule out the possibility that a person is subject to what are in
effect sanctions. Consequently, when one has a real fear of not being able to
support oneself and one’s family, and is faced with deciding between such a
situation or continuing to put up with the current one, most rational people would
choose to keep quiet. As a result, wrongs and illegal acts in corporate organizations
go unaddressed, and it is impossible to avoid completely endangering people such
as consumers.
As an exit, even if one were to be fired from one’s job, if one could receive more
money than could be earned in one’s lifetime, so that one’s family would also have
no financial worries, and furthermore have efforts made to protect one’s safety as
part of a witness protection program, the cost of being a whistleblower would be
minimalized, and so whistleblowing would be encouraged as an incentive. In the
above example from the United States, whistleblower Mr. Birkenfeld received a
reward of $140 million (approximately 12 billion yen). By comparison, the
lifetime earnings of an average Japanese person are around several hundred million
yen.
17. Hisashi ONOGI
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