From The Negotiator’s Field Book: The Desk Reference for the Experienced
Negotiator, Andrea Kupfer Schneider and Christopher Honeyman and,
Editors, American Bar Association, 2007.
_________________________________________________________
PROTEAN NEGOTIATION
Rejecting Orthodoxy and Shifting Shapes
Being also some Ruminations and Speculations on Evolutionary Impulses, a Minor Greek God,
the Literatures of Negotiation and Mediation, Cooperation and Competition, Morality and
Pragmatism, Paradox and Dilemma, the Bushmen of the Kalahari, Sun Tzu’s Strategy, and the
Management of Four Contradictory Imperatives, All of Which and Each of Which are Perfectly
Correct Things to do. 1
Peter S. Adler, Ph.D.
1.
Ancient Imperatives
Around the world, in classrooms, board rooms, and airport waiting rooms, the
theory and practice of negotiation is awash with advice on bargaining and
problem solving. Much of it is simplistic and some of it contradictory. One writer
implores us to know our bottom line. Another urges us to ignore it and focus on
needs. A third says to wait until the last moment to do a deal when the situation
is ripe. A fourth counsels us to get in early. At best, the many lists of “dos” and
“don’ts” serve as reference points and modest road maps for certain situations.
At worst, they misdirect us into thinking there is some grand unified field theory
or paradigm that, if we master it, will carry us seamlessly through every deal and
dispute.
More worrisome among the fashions of the moment is the trend towards
fundamentalism in the practice of mediation and facilitation which is closely
allied with negotiation theory. While there are many different styles, schools, and
1
My thanks to friends and colleagues Bob Benjamin, David Newton, Ann Gosline, and Doug Thompson
each of whom helped refine the ideas described in this paper.
1
brands with names like “collaborative law,” “extreme facilitation,” and
“transformative mediation,” most of these seems to devolve to four basic schools
of thinking about how humans behave in the face of real or imagined conflict,
how they negotiate, and how we might help them. One presupposes that all of us
are fundamentally competitive. A second assumes we are, at core, cooperative. A
third takes for granted that all of us will seek to do what is morally correct. A
fourth assumes we are rational and pragmatic.
These four impulses – pursuing your own fair share, uniting with others to
achieve a common end, insisting on doing what is right, and using logic and
reasoning to solve practical problems – seem to have evolutionary roots that date
back to our origins on the African savannah.2 The impulses also lead to different
theories of conflict and ideologies of negotiation and mediation that descend
from, embody, and personify these impulses. But there is also a fifth way, one
that acknowledges the universality and importance of all of them but is not
explicitly and strictly any of them. It too has ancient roots. Let’s call it “Protean
Negotiation.”
2.
Rumble in the Jungle 3
Imagine you are a senior official at Pulsar Pharmaceuticals International (“PPI”),
a mid-sized drug manufacturer that is seeking bio-prospecting rights in the
central Brazilian rainforest. PPI has a standing corporate pledge to “create
enterprise that is socially desirable, economically profitable, and ecologically
sustainable.” Pulsar has several Brazil-originated medicines it seeks to develop:
an extract from the taruma leaf which could treat degenerative arthritis; a slime
mold which may yield new therapies for allergies; and the root of the
muirapuama, considered an aphrodisiac by certain tribal healers and known
locally as "Amazon Viagra."
In the last six months, however, your job has become more complicated. You
have learned that your closest competitor, Consolidated Biological Science
(“CBS”), is pursuing the same three drugs. Brazil’s Ministry of Trade has recently
proposed new regulations and royalty rates that could add huge risks to Pulsar’s
investment. The government sees pharmaceuticals as a logical part of its
economic strategy and wants to control and profit from them. They are also
sensitive to bio-piracy from foreign countries. The Amazonian tribes and their
“shaman knowledge” are another potentially volatile issue. They have been the
subject of United Nations inquiries into human rights abuses, are an increasingly
important cultural icon for South America’s tourism industry, have the
2
See Ridley, M., 1996. The Origins of Virtue, Penguin Books, New York; Dawkins, R. 1976. The Selfish
Gene. Oxford University Press, Oxford; Ardrey, R. 1961. African Genesis, Collins Books, New York.
3
This problem is adapted from “Brazil Sees Promise in Jungle Plants, but Tribes See Peril” by Larry
Rohter, The New York Times, December 23, 2001.
2
sympathies of many urban voters, and control large tracts of land in the interior
some of which government would like to see opened for logging and farming.
You undertake a series of exploratory discussions beginning with Minister of
Trade, Carlos Mendoza. In public pronouncements, Mendoza has let it be known
that the government favors a centralized permitting system and a data bank that
will store the knowledge accumulated by "traditional scientists," as the shamans
are called. Prospecting rights will then be licensed to accredited drug
manufacturers. Privately, Mendoza says he is looking for a reputable
pharmaceutical manufacturer to help set up Brazil’s system and hints that
whoever undertakes this will have an inside track on early and perhaps
discounted permit applications. He also lets you know that he is talking with
your competitor, CBS.
You are also in contact with Arturo Terena, one of several elder leaders of the
Council of Amazon Tribes. Terena says his people would prefer to set up their
own system of patents, permits, and royalties and wants PPI to support their
effort and help them form a corporation. They have little regard for the Brazilian
government and would much prefer to maintain dominion over their own lands.
Terena says that Brazil has committed many historical atrocities against the
people of the forests and owes them this last chance at preserving their culture
and heritage and benefiting from it in a modern world.
Not long after and over a dinner in Rio de Janeiro, you talk with John
Henderson, your counterpart at CBS. The two of you have known each other for
many years. You exchange family news, swap stories about baseball and politics,
and then the talk turns to bio-prospecting in South America and the challenges of
working with the government on one hand and the tribes on the other. In
discrete terms, Henderson telegraphs signals that CBS might be willing to
explore some kind of joint venture to help both companies deal with the
situation. You thank him for a nice evening and tell him you will raise it with
your people.
Back in your office, you comb through your books on negotiation. The problem
seems to come down to a series of not very clear-cut strategic choices. Assuming
the numbers pencil out, do you trust CBS enough to join forces for what could be
a complex and long-term set of challenges with unclear payoffs? Can PPI
cooperate on this venture but compete in other places? Would the strains turn
the relationship toxic? Either way, and regardless of whether you do or don’t join
forces, should you pursue the inside track with Mendoza? Can the government
really be trusted? Might they use you to help set up their management system
and then have contracts awarded elsewhere? And what about Terena? You know
that the tribes have been treated badly but can you and should you ally yourself
with them? Is a company that prides itself on “creating enterprise that is socially
3
desirable, economically profitable, and ecologically sustainable” obligated to do
so? What would be the impacts of relations with of government of Brazil, and on
CBS if you are competing with them?
3.
Four Pathways to Problem Solving
If I were advising PPI, I think I might, as a starting point, offer up Elder Olson’s
1959 cautionary poem called Directions to the Armourer.4
All right, armourer,
make me a sword--not too sharp,
a bit hard to draw,
and of cardboard, preferably,
on second thought, stick
an eraser on the handle,
somehow I always
clobber the wrong guy.
Make me a shield with
easy-to-change
insignia. I'm often
a little vague
as to which side I'm on,
what battle I'm in.
And listen, make it
a trifle flimsy,
not too hard to pierce.
I'm not absolutely sure
I want to win.
Make the armor itself
4
Olson, E. “Directions to the Armourer.” The New Yorker, 1959.
4
as tough as possible,
but on a reverse
principle: don't
worry about its
saving my hide:
just fit it to give me
some sort of protection--any sort of protection--from a possible enemy
inside.
The literatures on negotiation, including those in this volume, suggest other
considerations. For PPI to engage the challenge of discovering new products and
bringing them to market, it might want to examine various cultural factors, keep
an eye on escalation dynamics, have a passing knowledge of the complexity and
chaos concepts, understand agency and representation, hone its skills at in-team
bargaining, manage the tides of emotion and affect, and have a good grasp of the
slightly different challenges of negotiated dispute resolution (untangling the
past) versus negotiated deal–making (crafting the future). Directly in the
telescope of this negotiation, however, are some major collisions between the
cooperative, competitive, moral, and pragmatic imperatives. The crosshairs look
like this:
MORAL
COOPERATIVE
COMPETITIVE
PRAGMATIC
Played out in the realm of negotiation, each of these imperatives has its own
logic, its own bargaining pattern, its own outlook and style, its own assumptions
5
about human nature, its own explanation of conflict, its own theoreticians, and
its own zealots. Each also stands in tension with one or more of the others.
In popular writing, competitive negotiation is often considered a natural
extension of sport, warfare, Darwinism, and the long and sometimes gruesome
struggles between individuals and individuals and groups and groups. In his
book Rules for Radicals, for example, Saul Alinsky, a community organizer and
champion of underdogs, argued that power derives from money, position, and
privilege and since poor people have little of any of these, they must band
together and push their way in. His negotiation advice included formulating a
clear enemy, causing confusion, fear, and retreat, making the enemy live up to
their own espoused book of rules, and infuriating the opposition through
strategic ridicule.5 As different as they may be substantively, Alinsky is not that
far away procedurally and psychologically from his counterparts in the business
world, someone like Donald Trump, who says: “I don’t do it for the money. I’ve
got enough, much more than I’ll ever need. I do it to do it. Deals are my art
form.”6
In scholarly and professional literatures, Alinsky’s rules are a colorful variation
of distributive bargaining which focuses on allocating the value at play and
maximizing one’s own gains. The themes of distributive bargaining deal with
target and resistance points, the dance of demands and offers, the role of
position-taking and concession-making, and the use of tactics such as low-balls,
nibbles, bogeys, good guys/bad guys working in tandem, and many more.
Distributive negotiation tends to be about hard bargaining and substantive
winners and losers.7
In these same professional and popular literatures, cooperative negotiation is
often thought of (and criticized by competitors) as soft bargaining. It focuses
largely on the quest for relatedness in ways that are jointly affirming.8 Lewiki,
Raiffa, and others call this integrative bargaining and its themes are mutuality,
reciprocity, communication, and the free exchange of information. Where
distrust is the assumed condition of competitive bargaining, the creation and
maintenance of trust is the bedrock of cooperative negotiation. “Negotiators
5
Alinsky, S. 1971. Rules for Radicals, Random House, New York. For other iconic popular examples, see
Trump, D. 1987. The Art of the Deal, Random House, New York. Ringer, R. 1973. Winning Through
Intimidation, Fawcett Crest, Los Angle and Koren, L. and Goodman, P. 1991. The Haggler’s Handbook,
W.W. Norton, New York, and Schatzki, M. 1981. Negotiation: The Art of Getting What You Want, Signet,
New York.
6
Trump, D. 1987. The Art of the Deal, Random House, New York.
7
See Lewiki, R. et. al. 1994. Negotiation, Second Edition, Irwin, Illinois and Raiffa, H. 1982. The Art and
Science of Negotiation, Belknap Press, Cambridge.
8
Bush, R.A.B and Folger, J. 1994. The Promise of Mediation: Responding to Conflict Through
Empowerment and Recognition, Jossey-Bass, San Francisco.
6
create a communication system,” says Bernard Mayer. “It may be carried over
from previous exchanges, or it may be freshly created, and its nature strongly
affects how the negotiation proceeds.”9 Cooperative negotiation is predicated on
the search for common ground. It seeks reciprocity, mutuality, and the avoidance
of breakdowns because of relationship problems.
Closely allied to cooperation is a third negotiating philosophy that begins with a
moral or ethical proposition and builds to what one set of writers has called the
creation of “higher ground.”10 To accomplish this, moral suasion in negotiation
takes a fact pattern, invokes a set of principles, builds logic around them, applies
them to the facts, and works to bring others to the same conclusions. Many
negotiations over larger or smaller matters, especially those that are aimed at
disentangling a grievance, begin with one side or the other saying “it’s the
principle of it.” Third-parties who work from this same premise often prefer the
term “peacemaking” to “mediation” because it implies something greater than
making a deal or restoring a relationship. “The moral imagination,” as John Paul
Lederach calls it, “has a quality of transcendence. It breaks out of what appear to
be narrow, shortsighted, or structurally determined dead-ends.”11
Finally, and in counterpoint to the moral impulse in negotiation, is a philosophy
of pragmatism and rational problem-solving. Much of the literature on interestbased negotiation might be thought of in this vein. It assumes that people know
and understand their needs, that interests can rationally and dispassionately
analyzed, and that elegant if not super-optimum solutions can be found. Fisher
and Ury’s famous dictums of separating the people from the problem, focusing
on interests, generating possibilities, and insisting on objective criteria are an
attempt to create a rational, if not quasi-scientific critical inquiry process that
leads to a more easily negotiated result.12
Even more expressive of rationalistic negotiation is the work of Brams and
Taylor who have developed clever protocols that overcome the problem of envy
and successfully divide everything from goods and services, to marriages and
whole businesses, to the borders and territories of feuding countries “The
problem of fair division,” they write, “is old as the hills, but our approach to this
problem is new. It involves setting forth explicit criteria, or properties, that
9
Mayer, B. 2000, p. 152. The Dynamics of Conflict Resolution, Jossey-Bass, San Francisco.
10
Dukes, F., et. al. 2000. Reaching for Higher Ground in Conflict Resolution, Jossey-Bass, San Francisco.
11
Lederach, J.P. 2005. The Moral Imagination: The Art and Soul of Building Peace, Oxford University
Press, Oxford, p. 27.
12
Fisher R. and Ury, W. 1981. Getting To Yes: Negotiating Agreement Without Giving In, Houghton
Mifflin, Boston.
7
characterize different notions of fairness; providing step-by-step procedures, or
algorithms, for obtaining a fair division of goods, or alternatively, preferred
positions on a set of issues in negotiations; and illustrating these algorithms with
applications to real life situations.”13
By themselves, each of these negotiating imperatives – pursuing a fair share,
uniting with others to make common purpose, insisting on doing what is right,
and using logic and reasoning to solve problems – has a particular clarity and
utility in the moment of certain facts and circumstances. Yet, taken to excess or
transformed into orthodoxy, each runs risk of instability and destructiveness the
more attached we become to the impulse. Saul Alinsky and Donald Trump are
tough, competitive, goal-oriented poker players accustomed to pushing, pulling,
probing, bluffing, and feinting. So was Slobodan Milosevic who evolved into a
political monster, consummate warrior, and war criminal obsessed with his
intergenerational blood-feud. At the farthest boundary of competitive bargaining
lies the seduction of ruthlessness, retaliation, and predation.
Cooperative approaches are also vulnerable. If everyone is trusting, it is easy to
be cheated by competitors disguised as cooperators or duped by “free riders.”
Neville Chamberlain fell into this trap in his negotiations with Adolph Hitler
before Germany invaded Poland. A sole and persistent focus on moral suasion is
no more immune than other strategies taken to excess. Unbridled moral
preoccupation can turn to smugness, sanctimony, and fanaticism. There is a line,
not always distinguishable at first, between the purity of a moral high ground
and the fervor of an Osama Bin Laden who would like to eliminate all nonbelievers. In turn, unchecked rationality and hyper pragmatism eventually
overwhelms the collective humanity that links all of us through our hopes, fears,
hurts, joys and curiosities. A sole focus on rationality makes us cold. In the
extreme, when science goes completely mad, it takes us to the banality of an
Adolph Eichman who made death efficient and systematic.
When individuals and groups bargain with each other, the four imperatives play
out in complex and nuanced ways and with unpredictable emotional intensities.
As the impulses come to control our behavior and as the behaviors amplify, they
become more risky, exposed, and dangerous. Fortunately, most of us do not
operate from a single value premise. Values compete within us, seeking
attention. Though we may all yearn for the clarity that would come from a single
gospel of negotiation, the popular and scholarly literatures don’t really tell us
how to reconcile them. So most of us, most of the time, do what we always do.
We muddle along until we succeed or fail never quite knowing why either of
those happened.
13
Brams, S. and Taylor, A. 1996. Fair Division: From Cake-Cutting to Dispute Resolution, Cambridge
University Press, Cambridge.
8
4.
Polarity and Paradox
It doesn’t matter if you are a tenant talking to your landlord, an ambassador
pressing for security measures on the India and Pakistan border, or Consolidated
and Pulsar testing the waters for a joint venture in Brazil: competition and
cooperation form a paradox. So too do the pressures of acting ethically and
pragmatically. Not every negotiation embodies every tension, nor are these four
the only predicaments that come up when people struggle to reconcile different
ideas. Nonetheless, inconsistency and contradiction create paradox and paradox
fosters what Todd Bryan calls a “strange loop that cannot be resolved to our
satisfaction”.14
Confronted by the ambiguity and inconsistency of countervailing imperatives,
the human mind seeks the purity of “one” or the “other.” We veer away from the
discomfort of being or doing “both,” split the differing injunctions apart, and
resolve the contradictions by insisting that life is one or the other. We are
competitive or cooperative, moral or pragmatic, emotional or intellectual,
expressive or bureaucratic, open or closed, aggressive or passive. Yet conflict
inevitably brings these paradoxes back to the fore. It forces us to confront what is
incongruous and requires us to take some kind of action.
This is not a new problem. Between 480 and 221 B.C., for example, during what
is now called the Warring States Period of the Chou Dynasty, a general who
would later be given the honorific name of Sun Tzu, wrote a short treatise on
how to triumph in warfare. Sun Tzu’s advice was simple and tough. He believed
in estimating costs, making plans, positioning oneself for success, maneuvering
for advantage, gathering intelligence, staying calm under fire, and wherever
possible avoiding unnecessary confrontation. Those sound like the traits of a
good negotiator, no less than a good general. And if Leonard Lira is correct, the
two are intimately connected.15
At core, said Sun Tzu, conflict is not just in the nature of things, it is the nature of
things. Conflict is as sure a thing as sickness and health, day and night, joy and
sadness, risk and opportunity. The paradoxical nature of conflict is thus
something to be mastered and used. He said: “To act on an entire organization is
ideal; to break an organization is inferior. To act on an entire corps is ideal; to
14
Bryan, T. 2004, p. 886. “Tragedy Averted: The Promise of Collaboration,” Society and Natural
Resources, 17:881-896.
15
Leonard Lira, “Transforming Conflict in Post Combat Operations: The Military profession’s Use of
Negotiation Skills in Constrained Environments,”…..(cite)
9
break a corps is inferior.” In sum, he opined, “Those who win one-hundred
triumphs in one hundred conflicts do not have supreme skill. Those who have
supreme skill use strategy to bend others without coming to conflict.” 16 All of
this may sound like New Age hocus-pocus but it is also the common sense of
someone confronting the dilemma of achieving competitive victory at the lowest
possible cost.
Negotiation is filled with detailed strategic and tactical paradoxes of just this
type. All of them require attention and action. If I am Pulsar, do I disclose
information to CBS or withhold it? If I am the ambassador, do I make a first
move or wait for theirs? If I am the tenant, do I come on tough or open friendly
to the landlord? And more generically, should I meet in their office or insist that
they come to me? Do I try to do a fast deal or wait for a better one? Do I come
right to the point and start with an offer or demand or establish atmospherics
and context first? All of these decisions represent choices in time and each choice
potentially has cascading effects, not all of which can be predicted, all of which
must be made with imperfect knowledge, and any or all of which could
reverberate back negatively as revenge effects.17
Ultimately, managing paradox requires us to embrace both ends of the dilemma
(because both ends have validity), to then find a comfortable place with the
uncertainty that sits between them, and to apply that uncertainty to the
negotiation at hand. In negotiations, there are specific things to be done. We can
make the dilemmas that usually stay unspoken explicit by giving voice to them.
We can seek to define and clarify them to make sure everyone understands them.
We can map them by describing the polarities, examining their attributes
carefully, and review the strengths, weaknesses, threats, and opportunities that
attend each.18 Finally, we can use both ends of a paradox to help reframe the
opposites into questions that can be answered through negotiation.
The affinity, ability, and tolerance for doing these things are the essence of
“Protean” negotiation.
5.
The Illusive God of Negotiation
16
R.L. Wing, 1988. Chapter 3, The Art of Strategy: A New Translation of Sun Tzu’s Classic. New York:
Doubleday & Company.
17
See Tenner, E. 1997. Why Things Bite Back: Technology and the Revenge of Unintended Consequences,
Vintage, New York.
18
Johnson, B. 1992. Polarity Management: Identifying and Managing Unsolvable Problems. HRD Press,
Amherst.
10
Amidst the incessant feuding and dysfunctional love lives of the Greek gods,
Proteus was an enigma. A minor actor at best, he was one of Poseidon’s less
known children, and certainly not the most important. In fact, he resided by
himself on an island called Pharos off the coast of the Nile delta, his day job
being the tending his father’s seal herds. As such, he was more of a servant than
a political player. Yet, Proteus had unique qualities. He was a shapeshifter and a
much sought after mystic who could peer into the future and answer the most
difficult questions posed to him with great prescience and clairvoyance. Others
gods would try to capture him and force answers from him. Proteus would
wiggle away from their grasp by changing shapes. It was his way of avoiding the
uncomfortable task of telling others what they ought to do, and perhaps of being
wrong.
In the late 1960s, psychiatrist and historian Robert Jay Lifton picked up on this
notion of psychological shapeshifting in a series of talks he gave for the Canadian
Broadcasting System. In his radio essays, Lifton ruminated on some of the cases
he had been dealing with, among them, survivors of Hiroshima, victims of
brainwashing in China, and young radicals in both Asia and America who found
their traditional sensibilities collapsing about them. In the context of great
institutional upheavals and rapid social changes, Lifton found some common
threads among his disparate patients: a deep loneliness; restlessness and constant
flux; a persistent feeling of isolation and disconnection; and a constant and
sometimes all-consuming search for authenticity. Paradoxically, he also found
great strengths: an intellectual, emotional, and spiritual rejection of orthodoxy;
resilience and an often fluid ability to reinvent oneself; and a sense of inner
“many-sidedness” that created a certain gift of empathy and tolerance.
A deeply reflective man and a skillful writer, Lifton synthesized his observations
and tried to placed them in a larger context. He saw a connection between the
dislocations of his patients and the historical dislocations of the times. In so
doing, he talked about a new and distinctly “Protean Style” of identity that he
was finding in different cultures and countries. Lifton speculated that it might be
part of a more universal response to what we now know as globalization, the
unprecedented flooding of images and ideas across borders, the meltdown of the
traditional anchors of family and place, and a reaction to our permanently
altered notions of nature and culture.
“The Protean style of self-process,” he said, “is characterized by an interminable
series of experiments and explorations, some shallow, some profound, each of
which can readily be abandoned in favor of still new psychological quests.” 19
Like that ancient son of Poseidon sitting alone with his seals and visions, modern
humans are, for the first time in history and on a scale unimagined, becoming
19
Lifton, R.J. 1967, p.4. Boundaries. Psychological Man in Revolution. Vintage: New York.
11
shapeshifters, able to adjust and adapt, able to manage contrary imperatives, able
to succeed in the midst of complexity and chaos. Foreshadowing some of the
ideas of Thomas Friedman three decades later, Lifton contrasted this new
Protean style of identity with an older more fundamentalist self conception that
he found rigid, unyielding, fearful of breakdown, obsessed with chaos, wary of
loss of control, and absolutely self-certain.20
“An effective negotiator,” says Robert Benjamin “requires a thinking frame that
is adaptive, dynamic, fluid, and shifting and a model of negotiation that can
house a variety of negotiation rituals.” 21 As the following schematic suggests,
the Protean negotiator is a dancer.
MORAL
COMPETITIVE
THE PROTEAN
NEGOTIATOR
COOPERATIVE
PRAGMATIC
He or she can dance the competitor’s jitterbug, the cooperative’s tango, the
moralist’s waltz, and the pragmatist’s four step. One dance may be more
comfortable than the others but they are all in the repertoire. The Protean
negotiator adapts.
Like Proteus, skilled negotiators seem to be able to reconcile the tensions of
inconsistent and confusing impulses that may attend cooperative, competitive,
moral, or pragmatic approaches to negotiation. In an instant, they can undertake
some kind of emotional and intellectual diagnostic, recalibrate expectations, and
20
Friedman, T. 2000. The Lexus and the Olive Tree: Understanding Globalization, (First Anchor, New
York.
21
Benjamin, R. 2004. “The Protean Sensibility: Reconsidering Approaches to Leadership and Negotiation.”
Unpublished Paper.
12
reflexively adjust their approach. Paradox is neither distasteful nor
uncomfortable for these people. In fact, the ambiguity and tension created by
paradox becomes the spawning ground of solutions. Malcolm Gladwell calls this
“thin slicing,” a form of rapid cognition and sometimes subliminal conclusionmaking of the sort that emergency room physicians, athletes, policemen, and
many others use to great effect in everyday life.22
Negotiation is an all-too human business, a strange and challenging alchemy of
difficult choices. It reflects, says Susan Podziba, Aa chaotic mix of passions,
values, interests, emotions, self interest, and altruism.@23 Negotiation is filled
with contradictions, some of obvious magnitude and importance, others small
and almost insignificant that can amplify as a negotiation proceeds. It is the job
of the Protean negotiator to manage all of these with highest degree of elegance
and intelligence possible. It is the job of the Protean mediator to help other
negotiators turbo-charge their efforts and make them as humane and productive
as possible.
6.
Ancient Imperatives - Revisited
In 1950 John Marshall, an anthropologist and film maker, received funding from
the Smithsonian Institution and Harvard University to study one of the last
migratory bands of the !Kung people, also known as the San People or Bushmen.
Living in small groups in Namibia on the edge of the Kalahari Desert, these
people were, and remain, one of the last true hunting and gathering peoples left
on the planet. Though few in numbers, they are, even today, what we all were
like 2,000 generations back.
The result of Marshall’s work was a film called “The Hunters.” It was, among
other triumphs, the first use of color film in ethnographic cinematography. The
film, which I first saw as a graduate student, is remarkable for more substantive
reasons as well. In a slow but mounting drama, it chronicles the story of a
hunting expedition by four men from a particular band who have set off to find
large game at a time when the group desperately needs a major infusion of
protein. The band is small, four or five extended families, with a total population
of about 30. Without fresh meat, elders and babies die. Without fresh meat,
women and men lack the strength to gather tubers and hunt.
So the men depart. Over the next several days, in fits and starts, they spot and
track various animals without much luck. They sneak up on a kudu, try to get
22
Gladwell, M. Blink : The Power of Thinking Without Thinking.
AThe Human Side of Complex Public Policy Mediation,@ Susan Podziba, in Negotiation Journal,
October 2003, p. 285-290.
23
13
close, and spook the animal away. They find some porcupines and eat their
meager flesh themselves. They spot other animals but are unsuccessful in
bringing them down. Finally, they encounter a small herd of giraffes and
succeed, after many complications, they manage to lodge a single arrow tipped
with poison into one of them. For the next few days we follow them as they track
the creature over hard terrain, nearly losing it in the surrounding hills and scrub.
Finally, they find the animal in a stand of trees, weakened and abandoned by the
rest of the herd. With arrows and spears they battle the still dangerous giraffe
and bring it down, butcher and dry it, and begin the journey home.
Seeing this film again after many years, I now looked at it through the lens of a
professional career layered with the dilemmas of hundreds of disputes, deals,
and conflicts. I hazily recalled the four hunters as short, tough, skilled men
working in tandem to accomplish their objectives. I remembered the dry and
torturous terrain and the sense of urgency I felt for them to find food. But this
time, I saw something else: their individuality and uniqueness; their quarrels,
irritations, and teasings; their moments of stress and their constant and ferocious
presence in the landscape. And rising above these moments, I saw four men,
each different; four functions in the group, each different; four skills and
preoccupations, each different.
Although all of them hunt, one man among them is more skilled than the others.
He is strong and competitive, able to pick up scents and follow trails when the
others seem baffled. In these moments, the others cede leadership to his
knowledge and prowess. The second is a craftsman. He is the technician, the one
who fashions the small, intricate, and highly lethal poison-tipped arrows they
use, the one who repairs spears and belts and bows. At certain moments, others
cede leadership to his knowledge and skill. The third is the shaman, the man
who performs small ceremonies along the way and who reminds the others of
the rituals that must be done if harmony in the world is to be maintained. At key
moments, he leads. And the last is the headman, the man who insists on
cooperation when the others are quarreling, the one who wears the weight of
their many failures on his shudder, the one who urges them to work together
until their goal is accomplished.
Four men, four styles of leadership, four approaches to negotiation, four ancient
imperatives that permeate our work as problem solvers in dimly understood
ways. In an essay celebrating Marshall’s 1950 ethnography, William Irwin
Thompson writes about the historic clash of values that each of these men
represent. “The model of four seems to be a persistent one,” he writes; “it recalls
the rule of four in the Indian caste system, Plato, Vico, Blake, Marx, Jung, and
McLuhan.” Perhaps that same rule is at play now in Pulsar’s negotiations in
Brazil, in the tenant’s urgings to her landlord, in the secret ambassadorial talks
that are inevitably going on along some border. Says Thompson: we may never
14
know if this structure of four exists in reality or is simply a convenient artifice
that we have concocted to try to explain our crude fumblings when we attack
difficult problems.
Either way, Marshall’s film hints at something older and more mysterious that
permeates the negotiations we are all engaged in. If there is a deep imperative
here, perhaps it is a reminder that our greatest individual and collective
strengths, taken to excess, inevitably become weaknesses.
15
[2.05]
[2.25]
[2.45]
[2.55]
Introduction....................................................................................................... 39
[2.05]
Negotiation – definitions ...................................................... 39
[2.20]
How does a style influence a negotiation? ........................ 43
Integrative negotiation and distributive negotiation................................. 44
[2.37]
Integrative negotiation .......................................................... 46
[2.40]
Integrative negotiation and distributive negotiation ....... 47
Skills in negotiation ......................................................................................... 49
[2.50]
Negotiating style profile ....................................................... 49
Preparing for negotiation ............................................................................... 53
[2.55]
Harvard Project – seven-element preparation model ...... 53
Conflict coaching.............................................................................................. 56
[2.65]
Stages in conflict coaching .................................................... 57
[2.70]
Conflict coaching .................................................................... 59
[2.75]
Varying approaches to conflict coaching ........................... 60
Assisted negotiation – negotiating with agents ......................................... 60
Complex negotiations...................................................................................... 63
Research about negotiation ............................................................................ 64
I
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–
[2.05]
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[2.10]
[2.60]
[2.80]
[2.85]
[2.90]
Negotiation is a process that is not frequently defined. This may be
because of the wide variations in terms of negotiation theory and practice. Some
authors have referred to the Oxford Dictionary definition of negotiation:
to confer with another for the purpose of arranging some matter by mutual
agreement. 1
The National Alternative Dispute Resolution Advisory Council (NADRAC)
descriptions refer to “indirect negotiation” as follows:
Indirect negotiation is a process in which the participants in a
dispute use representatives (for example, lawyers or agents) to
identify issues to be negotiated, develop options, consider alternatives
and endeavour to negotiate an agreement. The representatives act on
behalf of the participants, and may have authority to reach agreements
on their own behalf. In some cases the process may involve the
1
[2.10]39
N Spegel, B Rogers and R Buckley, Negotiation: Theory and Techniques (Butterworths, Sydney, 1998)
p 1.
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[2.15]
assistance of a dispute resolution practitioner (the facilitator) but the
facilitator has no advisory or determinative role on the content of the
matters discussed or the outcome of the process, but may advise on or
determine the process of facilitation. 2
However, it could be argued that the definition of negotiation is broader
and extends beyond the actual interaction and conferral that may take place
between negotiating parties. Negotiation in this sense includes preparatory steps
as well as any concluding post-negotiation phase. 3 The outcome sought in
negotiation may also not embody a sense of mutuality or even have agreement
as a purpose. The objectives of any negotiation may vary according to the
negotiation strategies adopted and the complexity of the issues involved.
Negotiation processes may also be defined by reference to the outcome sought
and the relationship between the participants. For example, negotiation has been
used throughout our legal and social history to resolve disputes. However,
negotiation is also used in a transactional sense – to create and foster
relationships. There are a number of differences that arise in the form and
content of a negotiation depending upon whether negotiation is used in a
transaction or to resolve a disputes and whether there is a degree of compulsion
(that is whether the negotiation is mandatory or required to be undertaken) that
exists within a negotiation.
There is now a wealth of literature about negotiation and much of this is in
the form of “self-help” books. Much that is written about negotiation originates
in very different disciplines although there have been some attempts to bring
theories and insights together in recent years. 4 Negotiation theory is based on a
number of different theories that include game theory, behavioural analysis, 5
strategic decision-making and what has been referred to as negotiation analysis
theory. 6 Most literature, however, refers to the theory in terms of distributive
2
3
4
5
6
National Alternative Dispute Resolution Advisory Council (NADRAC), Dispute Resolution Terms (AGPS,
Canberra, September 2003). See also NADRAC, Dispute Resolution Guide (2011), where negotiation is
described as an interest-based process, available on http://www.nadrac.gov.au (accessed 5 October
2011).
See, eg, D Lax and J Sebenius, 3D Negotiation: Powerful Tools to Change the Game in Your Most
Important Deals (Harvard Business School Press, Boston, 2006) in which they refer to the three
dimensions of negotiation: “tactics”, “deal design” and “setup”.
See, eg, A Schneider and C Honeyman (eds), The Negotiator’s Fieldbook: The Desk Reference for the
Experienced Negotiator (American Bar Association, Dispute Resolution Section, Washington, 2006).
This collection of essays and other materials is directed at bringing together different disciplinary
discoveries regarding negotiation.
See, eg, W Bottom, A Mislin and P Boumgarden, Psychological Foundations of the Behavioral Theory of
Negotiation, Meetings Paper (International Association for Conflict Management, 2007), available at
Social Science Research Network (SSRN) on http://www.ssrn.com (accessed 23 August 2011).
See W Edwards, R Miles and D von Winterfeldt (eds), Advances in Decision Analysis (Cambridge
University Press, 2007) and the contribution by J Sebenius, Negotiation Analysis: Between Decisions
and Games, available at SSRN on http://www.papers.ssrn.com (accessed 23 August 2011).
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and integrative approaches to negotiation that underpin much of the negotiation
work in recent years (see later discussion in this chapter) or in terms of
behavioural analysis (and decision-making behaviour). 7 To some extent, this
literature attempts to deal with rational theory and behavioural responses and
actions in negotiation that may appear to be irrational.
As a dispute resolution process, negotiation is responsible for the resolution of
more disputes than any other process. 8 As noted in Chapter 1 at [1.55], in 1989 it
was estimated that only 5.7 per cent of all commercial disputes end up within
the court system 9 and there has recently been a greater focus on the way that
negotiation takes place within the business setting. This is not a new
phenomenon – Fisher and Ury’s Getting to Yes: Negotiating Agreement Without
Giving In 10 (and other key self-help negotiation strategy books that emerged
from the Harvard Negotiation Project), and the business management industry
throughout the 1970s, 1980s and 1990s spawned an industry that informed many
in society about different negotiation strategies. Much of this material focused on
transactional negotiation and techniques that was then transplanted into the
dispute resolution setting. Some of this negotiation literature reflects on
strategies, tactics and “type” identifiers and is focused in behavioural analysis. 11
In contrast, negotiation literature relating to dispute resolution may also focus
on less linear constructions of negotiation. It may move beyond a competitive
construction of negotiation and be more focused on problem-solving processes
that “… subordinate[s] strategies and tactics to the process of identifying
possible solutions and therefore allow[s] a broader range of outcomes to
negotiation problems”; 12 that is, the focus in negotiation literature that is
directed at dispute resolution tends to focus on style as well as process.
The “Orange story” is often used to illustrate the basic problem-solving and
interest-based approach in negotiation. In the Orange story, Fisher and Ury in
7
8
9
10
11
12
See, eg, K Milkman, T Rogers and M Bazerman, Harnessing Our Inner Angels and Demons: What We
Have Learned About Want/Should Conflicts and How that Knowledge Can Help Us Reduce Short-Sighted
Decision Making, Harvard NOM Working Paper No 08-020 (September 2007), available at SSRN on
http://www.ssrn.com (accessed 23 August 2011). In terms of decision-making behaviours see D
Malhotra and M Bazerman, Psychological Influence in Negotiation: An Introduction Long Overdue,
NOM Working Paper No 08-058 (Harvard Business School, 28 January 2008), available at SSRN on
http://www.ssrn.com/abstract=1088115 (accessed 23 August 2011).
It could be suggested that many involved in disputes do not negotiate but simply “give up”.
M Fulton, Commercial Alternative Dispute Resolution (Lawbook Co, Sydney, 1989) p 6.
Fisher and Ury, Getting to Yes: Negotiating Agreement Without Giving In, (Houghton Mifflin, Boston,
1981); R Fisher, W Ury and B Patton, Getting to Yes – Negotiating Agreement Without Giving In (2nd ed,
Random House, Sydney, 1991).
See C Menkel-Meadow, “Legal Negotiation: A Study of Strategies in Search of a Theory” (1983) 8(4)
American Bar Foundation Research Journal 905 referring to H Cohen, You Can Negotiate Anything: How
to Get What You Want (Bantam Books, New York, 1980); see also R Brinkman and R Kirschner, Dealing
With People You Can’t Stand (McGraw Hill, New York, 2002).
[2
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C Menkel-Meadow, “Toward Another View of Legal Negotiation: The Structure of Problem Solving: A
Study of Strategies in Search of a Theory, American B” (1984) 31 UCLA Law Review 754 at 794.
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Getting to Yes 13 tell of two sisters who each wanted an entire orange. Only one
orange was available and it was cut in half to satisfy them. The first sister
squeezed her half for the juice and threw away the peel. The second sister grated
the peel from her half to use in a cake and threw the rest away (including the
juice). Neither was satisfied or had their needs met with the “solution”. Both
girls had wanted the whole orange, but each one needed (or had an interest in)
only the juice or the peel respectively. Both of their interests could have been
satisfied with each taking a part of the whole orange (for example, an agreement
where one took the peel and the other the juice) – each maximising their gain,
and not to the detriment of the other.
The Orange story supports cooperative, principled or interest-based
negotiation and stresses that in such negotiations the most important question is
why someone wants something. That question will usually lead to an
examination of the parties’ most important needs or interests, rather than a sole
focus on their positions. There are often several needs and usually these are not
exactly the same or necessarily in conflict with the needs (interests) of the other
party. For example, in a family dispute over parenting, the reasons (interests) a
mother may have in wanting the children to reside with her may not be
incompatible with the reasons (interests) that the father may have. It is important
to recognise that not all disputes can be resolved using interest-based
negotiation. However, reinforcing an interest-based negotiation approach can
assist the parties to negotiate more effectively.
There has been little qualitative or quantitative empirical examination of the
use of negotiation and satisfaction levels that occur where unassisted negotiation
takes place. For example, there has been an increasing theoretical focus on the
possible negotiation styles that can operate; however the impact on outcomes or
problems that can arise in a negotiation setting are often difficult to assess. 14
As noted in Chapter 1 at [1.45], in terms of a behavioural approach the
negotiation styles that can be adopted in any setting can be described as follows:
• avoidance – where the issue, dispute or conflict is avoided. In a family or
workplace dispute, for example, this could be characterised by a lack of
contact or a reluctance to “confer”;
• submissive – where a party “gives in” and decides not to engage on an issue;
• compromise – where the outcomes that are suggested are “give and take”
outcomes and a bargaining approach is adopted;
13
14
R Fisher and W Ury, Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin,
Boston, 1981) p 100
R Gordon, “Private Settlement as Alternative Adjudication: A Rationale for Negotiation Ethics” (1985)
18(2) University of Michigan Journal of Law Reform 503. There is, however, an expanding body of
evaluation literature in respect of some aspects of negotiations – eg, in relation to procedural
fairness, see A Schneider and C Honeyman (eds), The Negotiator’s Fieldbook: The Desk Reference for
the Experienced Negotiator (American Bar Association, Dispute Resolution Section, Washington,
2006). There is also an increasing focus on evaluation in specific domains – see the Negotiation
Journal (various) published by the Program on Negotiation at Harvard Law School and Blackwell
Publishing.
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• competitive or positional – where one party seeks to “win” and adopts a
“position” without exploring the parties’ needs or interests. This may be
characterised by the use of coercive strategies;
• collaborative or cooperative – where the parties’ needs and interests are explored
and a range of options are developed address those needs and interests.
There are a range of activities that can assist individuals and groups to analyse
their negotiation approach on a more general level. Some of these activities are
set out in this chapter and may assist you to analyse your negotiation behaviour,
style and approach.
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Style or behavioural descriptors may be helpful to a varying degree in any
negotiation. They can be used to assist a negotiator in responding or can be used
to help analyse the approach of others in a negotiation. However, an individual
negotiator may adopt one stance or style in relation to an issue or at one time in
a negotiation before shifting approaches. For example, a negotiator may adopt a
competitive stance towards one issue and a collaborative stance towards another.
Similarly, a negotiator’s stance adopted may alter if they are tired, hungry or
uncomfortable.
Where teams of negotiators are engaged, the styles may be influenced by the
team dynamics as well as the impact of different negotiator characteristics. The
style adopted may also be influenced by lateral, vertical or other pressures. The
audience, constituents and the relationships may play a central role in
influencing the styles adopted.
A growing body of writers 15 has suggested that there are a number of
different negotiation strategies and approaches. These can be referenced back to
style indicators. One approach is defined as an adversarial approach and
involves competitive negotiation. In this “give and take” approach, “what one
party gains the other must lose”. 16 For instance, one party states a position: “I
want that orange”. The other says: “I want the orange”. Rather than exploring
why either party wants the orange, one or both parties seeks an outcome where
the whole orange is obtained by one party.
Compromissory negotiation patterns 17 (rather than cooperative approaches)
are derived from the use of positional, competitive or adversarial approaches to
negotiation. These approaches are based upon the assumption that “the parties
desire the same goals, items, or values”. 18 The approach is most classically
15
16
17
18
H Astor and C Chinkin, Dispute Resolution in Australia (2nd ed, LexisNexis Butterworths, Sydney, 2002)
p 113.
C Menkel-Meadow, “Toward Another View of Legal Negotiation: The Structure of Problem Solving: A
Study of Strategies in Search of a Theory, American B” (1984) 31 UCLA Law Review 754 at 755.
H Astor and C Chinkin, Dispute Resolution in Australia (2nd ed, LexisNexis Butterworths, Sydney, 2002)
p 117.
[2
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C Menkel-Meadow, “Toward Another View of Legal Negotiation: The Structure of Problem Solving: A
Study of Strategies in Search of a Theory, American B” (1984) 31 UCLA Law Review 754 at 765.
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demonstrated as a “bidding approach”. Using the orange example above at
[2.15], the orange could be cut in half. This occurs as one party seeks to “win”
and adopts a “position” without exploring the parties’ needs or interests. This is
also referred to as distributive bargaining – essentially, a fixed amount of benefit
is divided among those negotiating. Distributive bargaining is often accompanied
by positional negotiation. 19 A characteristic of positional negotiation has been
said to be the presence of confronting and personal attacks.
Although everyone negotiates on a regular basis throughout life, many people
use processes that could be categorised as distributive, compromissory or
positional. Such negotiations are often unsuccessful for one or both of the
parties. However, distributive bargaining may be useful where the relationship
with the other party is not important, for example in a one off transaction or
where ethical issues are not relevant. 20
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In recent years, problem-solving negotiation, which works towards joint or
mutual gains and is popularly referred to as “win–win” negotiation or
integrative bargaining has evolved and developed further. This style of
negotiation assumes that the content that is the subject of the negotiation is not
19
A number of authors draw a distinction between “creating” and “claiming” value in a negotiation.
See, eg, D Malhotra and M Bazerman, Negotiation Genius: How to Overcome Obstacles and Achieve
Brilliant Results at the Bargaining Table and Beyond, (Bantam Dell, New York, 2007); D Lax and J
Sebenius, 3D Negotiation: Powerful Tools to Change the Game in Your Most Important Deals (Harvard
Business School Press, Boston, 2006).
See R Lewicki, D Saunders and J Minton, Negotiation (3rd ed, Irwin McGraw Hill, Singapore, 1999).
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fixed but variable. Variations in content can be related to a vast range of options
that include timing, apologies, understandings, provision of additional
information and new agreements, as well as options of high value to one
negotiation participant and of low value to another. Obviously, not all conflicts
can be resolved through integrative bargaining, but certainly many can.
Learning when and how to apply this theory to conflict has been of major
interest to negotiation theorists. In Getting to Yes, 21 Fisher and Ury focused on
the method of interest-based negotiation. The most important technique in this
type of problem-solving negotiation is to distinguish between interests (or
needs) and positions (desires, wants).
Some authors have suggested that, as noted in Chapter 1, the work of Fisher
and Ury in Getting to Yes 22 was instrumental in popularising the establishment
of alternatives to hard and soft positional bargaining. These variations in
approaches underpin much of the development of different forms of ADR, such
as mediation. For example, mediation may involve a focus on principled
negotiation while case conferences and some forms of conciliation may assume
that positional negotiation strategies will be used.
Another factor that influences negotiation is related to content. In distributive
negotiations, there is essentially a negotiation over who will have access to a
limited resource. Distributive negotiations are often categorised as “hard” or
“soft” according to the style adopted by the negotiators.
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The basic distributive negotiation approach is sometimes
referred to as competitive negotiation and is founded on assumptions
that:
1.
2.
negotiation is a zero-sum game where parties want the same
goals, items and values; and
the contents must be divided.
Distributive negotiation is often characterised by adversarial
approaches and competitive behaviours. The result may be
compromissory, that is each party must compromise, however, often
the result may be that the negotiation fails to secure an agreed
outcome for any of the parties involved.
Distributive negotiation will usually involve:
1.
2.
21
22
an opening offer and adoption of a style (avoid, submit,
compromise or compete);
the making of concessions; and
R Fisher and W Ury, Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin,
Boston, 1981); R Fisher, W Ury and B Patton, Getting to Yes: Negotiating Agreement Without Giving In
(2nd ed, Random House, Sydney, 1991).
[2
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R Fisher and W Ury, Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin,
Boston, 1981).
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3.
tactical behaviours that can include withholding information,
intimidation, aggression, deception, omission and modification.
Distributive negotiation is used where the focus is on a single or
“one-off” transaction. The tactics and strategies that are used are often
not supportive of any continuing relationship. For this reason,
distributive negotiation is often unhelpful where a continuing
relationship is involved, a fixed value is not in issue and all parties
seek an agreed outcome.
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Integrative negotiation, in contrast, assumes that the objectives and
interests of the parties are not mutually exclusive. That is, by defining the
problem, exploring underlying issues and generating options the parties can
create an outcome that satisfies underlying interests (not positions). The
dynamics of integrative negotiation are enhanced by training and clear
understanding of the processes. There is much research that suggests that joint
outcomes are more likely to be achieved where integrative negotiation processes
are used. In addition, the integrative negotiation approach is said to enhance
both relationships and satisfaction. 23
Integrative negotiation is also often referred to as co-operative, principled and
interest-based negotiation and these forms of negotiation are said to increase the
likelihood of reaching agreement if an “unconditionally constructive” 24 approach
is adopted. Interest-based negotiation or bargaining can be traced back to a
variety of negotiation theorists. In particular, Mary Parker Follett advocated a
“mutual gains” approach to negotiation associated with what would be called
“integrative bargaining”. Negotiation theory achieved popularity and greater
interest with the publication of Fisher and Ury’s Getting to Yes. 25
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The integrative negotiation approach is also referred to as
collaborative, merit-based, principled, cooperative or problem-solving
negotiation where:
• a focus on interests, needs and objectives rather than positions is
encouraged;
23
24
T Atkin and L Rinehart, “Research Report: The Effect of Negotiation Practices on the Relationship
Between Suppliers and Customers” (2006) 22(1) Negotiation Journal 47.
R Fisher and S Brown, Getting Together: Building a Relationship that Gets to Yes (Business Books Ltd,
Great Britain, 1991) p 38. See also A Schneider, “Shattering Negotiation Myths: Empirical Evidence on
the Effectiveness of Negotiation Style” (2002) 7 Harvard Negotiation Law Review 143–233.
[2
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25
R Fisher and W Ury, Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin,
Boston, 1981).
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[2.40
]Exam
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• a range of options is generated before an outcome is determined
after reference to any objective criteria; and
• the issues rather than the people involved in the dispute remain the
focus. 26
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: Alexei purchased a broadband internet package from a
telecommunications provider. This included a portable USB modem that would
provide wireless access to up to five computers, phones or other devices (eg
iPads) and a two-year contract with a monthly charge. The modem was “free”
provided that a monthly amount was paid that was linked to his mobile phone
account. A package containing the modem and brief instructions were
delivered to his home. When he opened the package and tried to install the
software on his laptop computer, it would not work. He rang the
telecommunications company.
What might happen in a distributive negotiation scenario? – Alexei
rang the telecommunications company. He waited for 20 minutes and then
gave up. He rang again the next day, waited for a considerable period of time
and then, after speaking to a range of people in the accounts area, he was put
through to someone who could help him (delay is often viewed as a strategy in
competitive negotiations). Alexei presented them with a list of demands. He
said that if he did not get his money back and compensation for business he
had lost (manipulating costs is often a technique in competitive negotiations),
he was cancelling all of his contracts and would contact a national media
program (essentially an opening offer that is exaggerated). The
telecommunications employee responded by saying that Alexei had signed a
contract and was liable to pay the full amount if he cancelled. The employee
said that if there was something wrong with the equipment it could be
returned, at Alexei’s cost, to be repaired. This would take up to four weeks.
Further, the operator said that all of this was spelled out on the last page of the
brochure that was contained in the sealed package Alexei had received and that
was also available on the website. Alexei insisted that no concessions should be
made by him because his starting point was valid. The employee responded
“that is all that I can do” (final offer). Alexei then reinforced the threat of “going
to the media”.
26
[2.40
]47
See Australian Law Reform Commission (ALRC), Review of the Adversarial System of Litigation: ADR –
Its Role in Federal Dispute Resolution, Issues Paper 25 (ALRC, Sydney, June 1998) p 25, referring to H
Astor and C Chinkin, Dispute Resolution in Australia (Butterworths, Sydney, 1992) p 83 and also to R
Fisher, W Ury and B Patton, Getting to Yes: Negotiating Agreement Without Giving In (2nd ed, Random
House, Sydney, 1991). See also C Menkel-Meadow, “Pursuing Settlement in an Adversary Culture: A
Tale of Innovation Co-opted or “The Law of ADR”” (1991) 19(1) Florida State University Law Review 1 at
3.
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What might happen in an integrative negotiation scenario? –
Alexei rang the telecommunications company. He was referred to an employee.
The employee asked how he was going and said that it was clear that Alexei
had been a customer with the company for a long time. Alexei and the
employee spent some time talking about the problem and his
telecommunications needs. While they were talking, the employee went
through some troubleshooting tips. The employee and Alexei talked through
what may be causing the problem. After carefully checking the modem, it was
clear that it was not connecting to the internet – essentially, the
telecommunications network was not available. The employee checked
availability in the area and said that the coverage should extend to his area. The
employee then said that she would contact the service technicians and asked if
she could ring Alexei back in 15 minutes. The employee rang back in
10 minutes and asked whether the modem showed any different lighting
patterns if the laptop was in the upstairs section of Alexei’s home. It did. The
employee indicated that Alexei was in an area of patchy reception and that this
meant that the modem might not be able to access the network in all areas of
his house. Alexei replied that he really needed the modem to work all over the
house (not just upstairs) as he did most of his work downstairs. Alexei and the
employee then talked about what options might be available. The employee
indicated that reception to Alexei’s area was expected to be “boosted” in about
six months – until then the problem would not be fixed and he would probably
only get wireless connectivity upstairs. Alexei said he did not think that was fair
and the employee agreed. She asked Alexei about what he thought would be
fair. He said: “I should get some sort of significant discount”. The employee said
that she could not give a discount on the network charges but she could
provide a “loyalty bonus” that would be equivalent to three months’ payment
for the internet connection. Further, she indicated that if Alexei wished to sign
up for another 12-month contract for his mobile phone she would send him a
new highly functional mobile phone with an additional charger at no cost (in
his initial conversation with the employee, he mentioned that his existing
mobile phone was not remaining charged for as long as it had previously). They
agreed to these options.
Comments – Essentially in the integrative example, most of the time is spent
exploring the problem rather than focusing on the exchange of offers. There
are a range of options that are put forward and they are not “sold” or judged.
The options in the integrative model are referenced back to needs and interests
in the conversation. In the distributive example, there is almost no recognition of
underlying interests and the discussion focuses on the negotiation demands
and positions.
]
48[2.40
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[2.45]
Regardless of whether the negotiation is distributive or integrative, and
regardless of the content of any negotiation, it is useful to prepare before
negotiating. One of the most commonly used tools to prepare for negotiation is
derived from the Harvard Project work (see [2.55]). Good communication skills
and an understanding of your own pressure points are also essential.
Communication skills are explored in more detail in Chapter 7.
In terms of self-knowledge, there are a number of tools that can assist in
understanding how you negotiate. One that might be useful is set out below and
is adapted from a Negotiating Style Profile originally developed by the Law and
Graduate Center of Ohio State Law School in the 1980s. This instrument is
designed to help you gain a deeper understanding of your negotiating style.
There are no right or wrong answers and it is important that you respond to
each question in a candid manner. The final reporting information is designed to
show you how you negotiate and how your style compares with other styles.
This information may help you to determine whether changes in your style
could increase your negotiating effectiveness. 27
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[2.50
]D
irections
: There are 30 statements in this instrument. Please respond to
each statement by circling the number of the response that most accurately
reflects the extent to which the statement is descriptive of you or your thinking.
Then continue with the key scoring instructions below. Please be candid with
your responses. This instrument is best used solely as a self-evaluation exercise.
STRONGLY DISAGREE
DISAGREE SOMEWHAT
NEITHER AGREE OR DISAGREE
AGREE SOMEWHAT
STRONGLY AGREE
27
.....................................
.....................................
.....................................
.....................................
.....................................
1
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[2.50
]49
See also GR Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable People (2nd ed,
Penguin Books, New York, 2006) and the reference to the Thomas-Kilman Conflict Mode Instrument
(renormed by Xicom USA, in 2007).
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Scoringkey
]
50[2.50
Directions: The 30 statements in the instrument above have been correspondingly mapped
in five columns in the table below.
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Referring to your answer for each question above, transfer the number of the
response given to each statement into the corresponding “statement score” column
in the table below.
2.
Once you have transferred all response scores, add each column and enter the total
score in the “total” column provided below each “statement score”.
3.
Add the “total” scores and enter the number in the far right-hand column.
4.
Calculate individual style percentages by dividing each total “statement score” by
the “total score”. Enter the result in each “%” column.
Please transfer your totals to the following boxes:
[2.50
]51
In general, most negotiators could benefit by increasing their collaborative behaviours
and decreasing other negotiation behaviours. The band graph illustrates the proportional
use of all five behaviour patterns by an average negotiator (if an average negotiator can be
said to exist).
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An “ideal” use of these behaviours is said to look something like the following band
graph. Naturally the style that is adopted is in part dependent on context and
circumstances.
We all have assumptions about what is effective in a negotiation and some of these
assumptions may be based on culture and experience. Our combined assumptions and
behaviours become a personal approach. In a conflict situation, you may be inclined to
respond in certain ways. Some examples are provided below – circle or underline the
phrases that best describe your attitudes and behaviours when in conflict and then award
one point for each response:
Treat others as friends
Seek agreement
Make concessions to cultivate the
relationship
Be hard on problems and people
Change your position easily
Accept one-sided losses to reach agreement
Search for the answer they will accept
Insist on agreement
Yield to pressure
Stop when you get an agreement
]
52[2.50
Treat others as adversaries
Seek to win
Demand concessions as a condition of the
relationship
Be soft on people and problems (This can
be contracted with Fisher and Ury – Be soft
on people and hard on problems)
Stick rigidly to your position
Demand one-sided gains as the price of
agreement
Search for the answer you will accept
Insist on your position
Apply pressure
Stop when you are ahead
TOTAL
TOTAL
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If you have scored more than five points in either column, this may indicate that you may
have a tendency to avoid or submit (if you score more than five in the left-hand column) or
a tendency to compete (if you score more than five in the right-hand column). These
self-diagnostic tools may clearly be related to context – that is, in a work situation an
individual may be more competitive and in home situation their behaviour and style might
be more submissive.
Negotiation preparation tools are designed to raise awareness of negotiation styles and
are also focused on supporting process models that are more likely to assist in particular
contexts.
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ï
[2.5]
The Harvard Project outlined a number of steps that can be used to
prepare for negotiation. 28 The seven-element preparation model it developed
requires those who are negotiating to spend time working through a preparation
model before they negotiate. 29 This model may assist in decision analysis and to
support behaviours that can be useful in negotiation. The time spent working on
the model may vary according to the complexity of the dispute. Adapted stages
can be described as follows:
1.
2.
28
29
30
Determining interests. This requires each negotiator to explore their own
interests (not positions) and to consider the interests of the other parties
they are negotiating with. In addition, the negotiating party should
consider the interests of others who may not be present at the negotiation.
For example, in a salary negotiation an employee may consider their own
interests (for example, economic needs, housing, profile, promotion, work
tasks, flexibility etc), their employer’s interests (for example, having
motivated staff, ensuring profitability, staff retention) and the interests of
others who may be outside the negotiation (such as senior management,
other employees, families).
Determining alternatives. What is the alternative if the negotiation does not
produce an agreed outcome? This requires the negotiator to consider not
only their alternatives but also to consider the alternatives of the other
party. The question is – what will happen if there is no agreement? When
negotiating, it is worthwhile to explore these aspects and to determine
how your alternatives can be improved, particularly your “best alternative
to negotiated agreement” or BATNA, 30 and your “worst alternative to a
negotiated agreement” or WATNA (these approaches and concepts are
[2.5]53
The Harvard Negotiation Project (HNP) was established in 1979. Two existing initiatives that continue
under HNP are the Harvard International Negotiation Program and the Global Negotiation Initiative.
See http://www.pon.harvard.edu/category/research_projects/harvard-negotiation-project (accessed
7 November 2011).
See, eg, R Fisher and D Ertel, Getting Ready to Negotiate (Penguin, New York, 1995).
R Fisher and W Ury, Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin,
Boston, 1981).
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explored further and in some detail in Chapter 7). In addition, the
alternatives of the other party (their BATNA and WATNA) need to be
fully considered. Options to strengthen your alternatives and weakening
the options of the other party should also be considered.
3.
What options exist? That is, what ideas could be used in the negotiation? In
a salary negotiation, for example, there may be options other than money
that might be appealing, such as time in lieu, added flexibility, work
opportunities and options that may improve the status of an employee.
4.
What information is required? Are there questions that can be asked and, if
so, what are they? Are there any standards that can be used to assist in
measuring the agreement or any options? What can you do to help
persuade the other side or those outside the negotiation? Are there other
processes that could be used to assist to reach an agreement? How will
the negotiation take place, at what time and what are the expectations? Is
there a better time or place? Could the negotiation be conducted
face-to-face?
How are you going to communicate? What messages will you send? How
can they be framed? A message can be framed in many ways. For
example, sometimes it can be useful to framine a message in terms of
mutual interests. In other circumstances the message might be framed in
terms of more detailed information. The central approach requires that the
impact on those that you are negotiating with is considered and that the
message is framed in a way which is responsive to the other participants
in the negotiation. There may be particular communication strategies that
can be explored. These are canvassed in more detail in Chapter 7.
What relationship issues exist? How can the relationship be improved? If
there are relationship issues (for example, a lack of trust) what might the
cause be and how can this be addressed? The relationship can impact on
long- and short-term outcomes, and many negotiations can be adversely
affected by perceptions of reliability or perceptions of behaviour. Unless
such issues are attended to, the negotiation may not produce an outcome.
What are the products of the negotiation? What needs to be agreed? How will
it be followed up? Who will take action in future and how?
Implementation is sometimes forgotten in a negotiation and agreements
may be made to something that will happen “as soon as possible” – if the
parties are in dispute, this lack of certainty can lead to further
communication breakdown.
5.
6.
7.
When preparing for a negotiation, it is sometimes helpful to set aside time for
focusing on all seven items and noting down responses in every category. This
may also support the negotiator in terms of confidence building and can be
particularly useful where negotiation teams are involved. 31 Preparation
workshops can also assist those who plan to negotiate over complex issues to
better use the actual negotiating session and to ensure that useful information is
54[2.5]
31
See also D Philbin, “The One Minute Manager Prepares for Mediation: A Multidisciplinary Approach
to Negotiation Preparation” (2008) 13 Harvard Negotiation Law Review 249.
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considered prior to the negotiation. In some cases, all of those who will be
involved in a negotiation will attend a preparation session – this approach has
been used successfully in enterprise bargaining negotiations and other complex
negotiations in the resources area.
There are four basic considerations in principled or interest-based negotiation:
1.
Separate the people from the problem.
2.
Focus on interests, not positions.
3.
Generate a variety of possibilities (options) before deciding what to do.
4.
Insist that results be based on objective standards.
This can be difficult particularly if an individual’s “triggers” are pressed. What
may seem inoffensive to one person may offend another and sometimes it is
difficult to take time before responding in a negotiation. Clearly, maintaining a
relationship with the person they are in conflict with can be of great importance
to the parties. This is especially true for those who must continue to deal or work
with each other, such as family members, neighbours or employees. In some
disputes, the relationship is as important, if not more so, than the substantive
result of a negotiation.
One of the important strategies of negotiation developed in Fisher and Ury’s
Getting to Yes 32 was that of getting negotiators to be “unconditionally
constructive”. This is good not only for the relationship but for each individual.
Six points are outlined for unconditionally constructive negotiation:
1.
balance emotion with reason;
2.
try to understand;
3.
inquire, consult and listen;
4,
be reliable;
4.
be open to persuasion; try to persuade;
6.
accept the other as worth dealing with and learning from.
This work was expanded upon by Fisher and Brown in Getting Together –
Building a Relationship That Gets to Yes, 33 in which it was noted that it is not
necessarily sufficient in a negotiation to be internally consistent. What may be
required is ensuring that the parties are “congruent” – that is, that they have a
deep understanding of the beliefs of the other in a negotiation and are
committed to building a relationship.
32
33
[2.5]5
R Fisher and W Ury, Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin,
Boston, 1981). See also R Fisher and S Brown, Getting Together: Building a Relationship That Gets to Yes
(Business Books, London, 1989) and R Fisher and D Shapiro, Beyond Reason; Using Emotions as You
Negotiate (Viking, New York, 2005).
R Fisher and S Brown, Getting Together: Building a Relationship That Gets to Yes (Business Books Ltd,
Great Britain, 1991).
l[2te6r0
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.
Conflict coaching is a process that has been developed largely over the last
decade. It is “the process in which a coach and disputant communicate
one-on-one for the purpose of developing the disputant’s conflict related
understanding, interaction strategies, and interactions skills”. 34
Conflict coaching can be used to assist a participant or a group involved in a
negotiation. Much of the work that has been done in the conflict coaching field is
closely related to the executive coaching area. This field has rapidly developed
since the mid-1980s and it has been estimated that there are more than 50,000
“executive coaches” in the United States. 35 However, conflict coaching has also
been fostered in the ADR area with practitioners increasingly being involved in
systemic design issues that focus on communication cultures and styles that can
foster conflict coaching.
Conflict coaching models vary; however, each will generally involve a
discussion of a conflict or negotiation, exploring the conflict or negotiation using
a multi-perspective approach, clarifying the approach taken in the past and
rewinding events to explore conflict and negotiation styles and behaviours, and
then discussing redirection. 36
All models involve the coach spending time with an individual or group to
fully understand the negotiation or conflict. Some coaches may also obtain
information from other sources. Often a conflict coach will work with an
individual or group over a number of weeks or months with meetings scheduled
at regular intervals.
The conflict coaching approach is based on a relational view of conflict. Some
models are very focused on behavioural “triggers” and ascertaining core values
in an attempt to avoid or prevent reactions to conflict that may impede an ability
to engage in a negotiation collaboratively.
At present, there is no settled accreditation system for conflict coaches and a
range of different organisations and individuals provide training. Many of these
make reference to communication material that is used in the conflict resolution
area (see Chapter 7), while some are also engaged at the organisational change
level and focus on structures as well as individual responses. One issue that has
emerged in this field relates to the extent to which the “coach” can provide
direction to the person being coached about whether or not they should accept
an offer or do something that might assist them in a workplace environment. To
some extent, this issue mirrors the differences that exist in other ADR processes –
is the process intended to be facilitative or is there an advisory component? In
relation to any advisory question, the issue may also be whether a coach advises
56[2.60]
34
35
36
R Brinkert, “Conflict Coaching: Advancing the Conflict Resolution Field by Developing an Individual
Disputant Process” (2006) 23(4) Conflict Resolution Quarterly 517.
R Brinkert, “Conflict Coaching: Advancing the Conflict Resolution Field by Developing an Individual
Disputant Process” (2006) 23(4) Conflict Resolution Quarterly 517 at 519.
See T Jones and R Brinkert, Conflict Coaching – Conflict Management Strategies and Skills for the
Individual (Sage Publications, Los Angeles, 2008).
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on the content or process. However, all conflict coaching models have as a basic
premise that the goal of the process is “self-empowerment” and to support
individual decision making (see Chapter 3 for a further discussion regarding
empowerment approaches in mediation).
Conflict coaching can be used to support individuals and groups in
negotiation, mediation, collaborative practice and any form of ADR where a
continuing relationship is a possible outcome of the negotiation. It may be of
particular assistance in workplace and family conflict where supported
communication approaches can support relationships in the longer term.
S[2t.a6g5]esinconflictcoaching
The conflict coaching process may have a number of stages:
1.
2.
Goal setting. The coach will work with a group or individual to clarify or
set the goals of the coaching and ensure that prioritising takes place.
Useful questions in this stage of conflict coaching might include:
• Can you tell me more about what you would like to get out of the
session today?
• What is your greatest concern today?
• What would you like to accomplish by the end of our time together
today?
Assessment. The coach will investigate and clarify the presenting situation.
This stage will commonly take place with the coach asking questions that
are designed to elicit and establish the range of viewpoints that exist in
respect of a dispute or negotiation. The assessment is not confined to the
specific negotiation content and involves discussion of the behaviours and
characteristics of the individual or group. Questions might include:
• Can you tell me more about what has been happening?
• Is there anything that you have not talked about?
• What has been the impact on you so far?
3.
37
• How have you responded and tried to deal with this?
• What do you think the other person/group was thinking?
• What is it about the interaction that concerns you? What are you
hoping to achieve?
• What do you think the other person/group hopes to achieve?
Identification of internal reactions, trigger points, impact of the negotiation
or dispute, assumptions and the consequences of different reactive styles.
Not all conflict coaching processes will involve a thorough and separate
identification process. Conflict coach Cinnie Noble focuses on this aspect
and a primary aim of her conflict resolution strategy is directed at
evaluating values and how, in an exchange, an individual or group may
have their core values or needs challenged. 37 Other coaching models will
incorporate this stage into the second stage. The GROW (Goal, Reality,
[2.65]57
See C Noble, Conflict Management Coaching (Cinergy, Canada, 2012) who has created the CINERGY
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Options and Way forward) models that underpin a range of generalist
coaching models involve evaluating ideas and thinking habits but not
necessarily linking all behaviour to core value challenges. Questions that
may arise in this stage could include:
• Why do you think that the interaction challenged you?
• What values or needs were challenged? (values could include loyalty,
respect, autonomy, being organised, authenticity, trust)
• What is it about that need or value that is important to you?
• What emotions did you experience?
• How were you affected – what was the impact on the interaction?
• How did you react?
• How did you interpret what the other person/group did?
• How did they interpret what you did?
• How did you interpret what they did?
• What assumptions did they make about you?
• Before the difficult interaction, what were you thinking?
4.
Option or choice exploration. This stage involves the coach asking questions
to support the identification of options, behaviours and outcomes. This
stage may involve replaying past negotiations and behavioural responses
as well as testing future arrangements. It may also involve
communications coaching – that is, past situations may be reconstructed
after exploring past responses. In addition, there may be exploration
about how an individual or group may present an option to another in a
way that is more likely to resolve an issue or present a construction or
co-operative negotiation approach. This stage can involve a closer
examination of issues relating to culture and dynamics (see Chapters 7
and 9), as well as exploring the value and belief systems that may operate
within the other group or individual. Possible questions in this stage
could include:
• What do you think is the ideal way to handle this situation?
• How could you get the outcome that you want?
• Is there anything you could do differently?
• If you had the interaction again, is there anything you would do
differently?
• What steps would you take – how would you do it?
58[2.65]
• What do you need to do before meeting the other party?
• What do you think the other person/group needs?
• What could prevent the negotiation from succeeding or working?
• What would you do if you had unlimited time and resources?
system of coaching: see http://www.cinergycoaching.com (accessed 9 October 2011).
5.
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Commitment or “way forward”. This stage is aimed at confirming the
direction and next steps. The coach will usually summarise, re-check and
ask questions directed at monitoring potential outcomes. Possible
questions could include:
• What are the next steps?
• How and when will this take place?
• Is there anything else that could assist the process?
• How do you think they will respond?
• What might get in the way?
• How can you be supported?
• What will you take away from today?
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Much of the work in the conflict coaching area is directed at exploring the
emotions and beliefs that are present in individuals and groups and that can
have an impact on negotiations. This work is derived in part from cognitive
behavioural therapy approaches and is directed at exploring approaches to
conflict and cognitive responses. 38
Ella has been trying to find another job for two years. She is concerned
about the workload and also does not like working with Jed. Jed is keen to
ensure he “gets ahead” and is concerned about the low morale in the unit that
he manages. Jed recently attended a leadership program at the request of his
supervisor where there was a discussion about how decisions are made and
how staff are involved in decision-making. He considers that his staff are too
busy to be involved in decision-making and that because they are already
overworked, they would not have time.
Recently, they had a staff meeting in which Ella barely participated. When
told that their team had to take on two new projects, she said: “We can’t do it –
you know that. We have too much work and doesn’t anyone care? You are the
manager – you should tell them”. Nobody else talked and the meeting ended.
Jed then sent an email to the team that set out the deadlines for the two
projects and added that, as a result of the addition of the projects, a new
workload allocation formula would be required.
[2.70]59
Ella and Jed have not spoken since and Ella is waiting for a “new workload
allocation formula”. When it arrives, she intends to challenge it. She has
38
For a helpful supportive resource in this area, see S Edelman, Change your Thinking (2nd ed, ABC
Books, Australia, 2006).
AlternativeDisputeRsolution
contacted the human resources area and complained about Jed who, she says,
is not complying with company process guidelines.
Jed’s supervisor is aware of the issues and has suggested that Jed and Ella
have some conflict coaching.
i[2.75]ngaproachestoconflictcoaching
V
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In Jed’s conflict coaching sessions, he indicates that over time he felt that he
was undermined by Ella and his competency was challenged. An exploration of
the discussion that Jed had with Ella and a close examination of Ella’s responses
highlights some staff autonomy issues that have surfaced in the past. Conflict
coaching sessions result in a conversation between Ella and Jed where each
speaks about their goals and their difficulties.
A very different approach to conflict coaching has been devised and is
used in some complex multi-group negotiations. The T-Group process is directed
at bringing groups together:
… often at an isolated site, for a period of a week or more, and there under the
supervision of trained experts [they] learn about themselves and their difficulties in
large part from one another. Frequent opportunities are deliberately provided for
the participants, who for this purpose are subdivided into smaller groups of around
a dozen persons (called T-groups, T for training), to experience most varied,
intensely emotional, and very frank interaction. 39
The training is directed towards supporting the participants to “learn about
themselves and their relations with others, particularly how to communicate
effectively with those from different groups, and thereby be able to overcome the
usual verbal facades and possibly create innovative solutions to the conflict”. 40
This training approach was adopted by Doob in the Fermeda Workshop in an
attempt to resolve complex disputes such as the border disputes between
Somalia, Kenya and Ethiopia, which involved groups of people from different
ethnic groups and different nations.
The workshop approach is focused on a single interaction rather than a series
of meetings that may take place over months or years.
A
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–
[2.80]
60[2.75]
Negotiation may sometimes be assisted by third parties or conducted by
agents. Where negotiation takes place with the assistance of an external party,
the process may be described as a facilitated negotiation. This process is
discussed in more detail at the end of this chapter and in Chapter 3 (Mediation).
Where agents are involved or where the style of the participants is
competitive, the negotiation can be more “adversarial” than litigation processes,
39
40
LW Doob (ed), Resolving Conflict in Africa: The Fermeda Workshop (Yale University Press, 1970) p 10.
RJ Fisher, Interactive Conflict Resolution (Syracuse University Press, 1997) p 38.
Negotiaon|CH
2
particularly where it is conducted in the shadow of litigation. For example, it has
been suggested that lawyers negotiate in a way that contemplates litigation. 41
The ethical requirements may also not be as onerous as would be the case in
litigation. One of the primary concerns in negotiation relates to the tactics that
can be used and how they may influence the outcome and process. 42 The use of
“dirty tactics” is one of the primary reasons why negotiation may fail or why
those in dispute may prefer to adopt a third-party process. These can include
stonewalling tactics such as “take it or leave it” ultimatums or “calculated
delays”; attacks on credibility, threats or manipulating the physical environment;
or deceitful tricks including “good guy/bad guy” strategies, using false facts or
claiming a lack of authority. It may be that the imposition of obligations or good
faith requirements on those who use ADR processes or who are negotiating can
limit the use of such tactics (see Chapter 11).
Negotiation is often conducted on a “without prejudice” basis in the litigation
arena where any comments made or documents produced are confidential and
cannot be used in subsequent proceedings. At times this rule is modified so that
the discussions are “without prejudice save as to costs” so that, should the
dispute end up being litigated, after the outcome has been determined, the
parties can introduce evidence of offers from a without-prejudice conference to
support their claim for a costs order (see Chapter 12).
In the United States, a two-part ethical standard has been set out in the
American Bar association Model Rules for lawyers in negotiation:
• the lawyer must act honestly and in good faith; and
• the lawyer may not accept a result that is unconscionably unfair to the other
party. 43
However, most writers consider that more complex ethical measures that extend
beyond truthfulness and fairness are aspirational. 44 Aside from ethical concerns,
there are broader issues about lawyers’ cultures and behaviours that could be
considered to determine whether lawyers negotiate from a positional and
adversarial perspective (see also Chapter 11 and 15). It has been said that some
41
42
43
44
R Gordon, “Private Settlement as Alternative Adjudication: A Rationale for Negotiation Ethics” (1985)
18(2) University of Michigan Journal of Law Reform 503 at 514. See also R Mnookin, S Peppet and A
Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes (Belknap Press of
Harvard University Press, Cambridge, 2000).
M Willis, “The Negotiator’s Ethical and Economic Dilemma: To Lie, Or Not to Lie” (2001) 12(1)
Australasian Dispute Resolution Journal 48.
R Gordon, “Private Settlement as Alternative Adjudication: A Rationale for Negotiation Ethics” (1985)
18(2) University of Michigan Journal of Law Reform 503 at 524. It has been argued that such a rule is
unhelpful as the definition of good faith is so uncertain. See a full discussion of ethical issues in
negotiation in C Menkel-Meadow and M Wheeler (eds), What’s Fair: Ethics for Negotiators (JosseyBass, San Francisco, 2004). This issue and the ABA Model Rule was formally considered in a formal
opinion of the ABA in 2006 (06 – 439). See http://www.apps.americanbar.org/labor/lel-aba-annual/
papers/2006/42.pdf (accessed 7 November 2011).
[2.80]61
See C Menkel-Meadow and M Wheeler (eds), What’s Fair: Ethics for Negotiators (Jossey-Bass, San
Francisco, 2004) and, in particular, E Holmes Norton, Bargaining and the Ethics of Process (p 270).
AlternativeDisputeRsolution
lawyers negotiate while wearing their “adversarial suits” 45 and that this
approach promotes the risk of stalemate and hostility because extreme positions
and a focus on “winning” 46 “most often produce an unprincipled compromise
even if a settlement is reached”. 47 For others, negotiation processes can redefine
the role of a lawyer at this level, which can include assisting to resolve a dispute
in a constructive and helpful way. 48
In Australia, attempts to change the negotiation culture and approach have
been the subject of a report by the National Alternative Dispute Resolution
Advisory Council (NADRAC) 49 as well as the Victorian Law Reform Commission
(VLRC). 50 NADRAC has suggested that conduct standards should be imposed
on disputants who are engaged in mandatory ADR at the federal level and that
good faith participation should be required. 51
The VLRC proposed that those involved in litigation and associated ADR
should be required to have an “overriding obligation”. The obligation is “to
create a ‘model standard’ for the behaviour of all who become involved in the
civil justice system”. 52 Essentially, the obligations are intended to improve
standards of conduct. The VLRC has said that “many of these reforms have been
directed to ameliorating the adversarial culture, in particular by emphasising
‘cooperation, candidness and respect for truth’”. 53 The VLRC set out proposed
obligations that include a duty to act in good faith as well as obligations to use
reasonable endeavours to resolve the dispute by agreement. In some ways, this
is an attempt to encourage the use of certain tactics in distributive negotiation
and also an attempt to support integrative approaches. However, it is
questionable whether the reforms that have been made in response to the VLRC
proposals will achieve this (see Chapter 11).
Negotiation may also be conducted (or not take place at all) in a more
adversarial manner as a result of the power or dominance issues that may exist
in a relationship. Participants who are affected by outcomes may never be
invited to the negotiation table, deliberately excluded from it; or, if they attend,
45
46
47
C Menkel-Meadow, “Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or
“The Law of ADR”” (1991) 19(1) Florida State University Law Review 1 at 33–35.
P Killingsworth, ““Winning” Redefined: A Positive Approach to the Practice of Law” (1996) 12 Georgia
State University Law Review 653 at 654.
C Menkel-Meadow, “Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or
“The Law of ADR”” (1991) 19(1) Florida State University Law Review 1 at 36.
62[.80]
48
49
50
51
52
53
B Sordo, “The Lawyer’s Role in Mediation” (1996) 7 Australian Dispute Resolution Journal 20. See also
Chapter 4.
See NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice
Through People (February 2011), available on http://www.nadrac.gov.au (accessed 23 August 2011).
See VLRC, Civil Justice Review: Report (May 2008) at http://www.lawreform.vic.gov.au (accessed
23 August 2011).
See NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice
Through People (February 2011) pp 34–36.
See VLRC, Civil Justice Review: Report (May 2008) at [6].
See VLRC, Civil Justice Review: Report (May 2008) at [13] and [16].
Negotiaon|CH
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they may be prevented from participating effectively because of the underlying
structures, language used, cultural constraints or lack of recognition present
within the negotiation. 54
Power imbalance within a negotiation framework may arise as a result of the
existing power, status, resources, education, personal attributes, association and
experience with process that individuals may have and these factors can shape
the strategies and approaches adopted within the negotiation. Forces outside a
negotiation environment may also exert pressure. The involvement of the media
or other lateral pressures may also cause behaviours to become more adversarial
and less constructive as negotiation approaches are reinterpreted and redefined
without the involvement of the central participants.
Issues relating to the way in which conduct obligations may define and
impact on negotiation practice are explored in more detail in Chapter 11.
A
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[2.85]
Negotiations can be complex because of the behaviours, characteristics
and cultures of those who are involved, and also because of the number of
people, organisations and interests that are involved. The issues that are
involved may also be complex and this (of itself) can present challenges in any
negotiation. Complex negotiations may take some years to complete and may
involve a series of complex interactions and team-building processes. In some
instances, team problem-solving approaches can be used to support interactions.
Where complex issues are involved, technology may be of assistance (see
Chapter 10). Technology can be used to support negotiation and understanding
and may also assist to support decision-making through artificial intelligence.
There are few guidelines available to assist in the development of negotiation
approaches to deal with complex public disputes. 55 These disputes can present
environmental, economic and social dilemmas. Wootten divides these categories
into “site-specific disputes and policy-related matters”. 56 Where numerous
groups are involved in conflict, there is now a considerable shift in the way in
which collaborative processes are used to manage the conflict. Simplistic
negotiation approaches that focused on individual differences are no longer seen
as optimal. Approaches based on broader negotiation strategies, the mapping of
past conflict and communication and value differences are seen as essential. In
the complex environmental conflict areas, there is also a greater focus on
determinative and advisory processes and the use of blended techniques (see
Chapter 5).
54
55
56
[2.85]63
P B Kritek, Negotiating at an Uneven Table: Developing Moral Courage in Resolving our Conflicts
(Jossey-Bass, San Francisco, 2002).
J Elix, More Than Resolution: System Design for the Management of Intractable Natural Resource
Conflict in Australia (PhD thesis, La Trobe University, Melbourne, 2005).
H Wootten, “Environmental Dispute Resolution” (1993) Adelaide Law Review 47 at 65–66.
A[2lt.e9r0na]tiveDisputeRsoluRtiEoSnARCHABOUTNEGOTIATION
Negotiation behaviour and styles have been the subject of considerable
academic research over the past few decades. In addition, practitioners have
been confronted with many “how to” books setting out approaches to
negotiation that are founded in either distributive tactical approaches or
integrative problem-solving theory.
There is, however, a fairly substantive body of empirical research that
suggests that problem-solving styles of negotiation are more effective in
simulated situations. 57 The simulated negotiation scenarios, where different
styles of negotiation are tested, can involve very large numbers of participants
and are often used to test theories that have been developed regarding
integrative negotiation. One such study, for example, involves training
negotiators in an integrative problem-solving approach (such negotiators are
then defined as “enlightened” and may be prompted by a script to adopt an
intellectual and relational approach to the negotiation) while others are
untrained (and defined as “naïve” negotiators). 58 Other studies have focused on
international negotiations and have again concluded that “better outcomes” are
likely to be achieved through the use of integrative approaches 59. There is also
an increasing focus on the use of integrative negotiation in the international 60
and domestic area.
There are criticisms of integrative negotiation and what has been labelled as
communitarian bargaining approaches. 61 These approaches support a group or
community approach to problem solving. Such criticisms are in part related to
the lack of broad scale empirical research in this area and the concern that many
individuals can focus on self rather than group interests.
There are some studies that show that integrative negotiation styles are more
effective in real-life situations. For example, some empirical studies have drawn
upon lawyers’ behaviour in negotiation. These studies address concerns that
have been expressed regarding an empirical study by Gerald Williams
57
58
See, eg, C Boone, B De Brabander and A van Witteloostuijn, “The Impact of Personality on Behavior in
Five Prisoner’s Dilemma Games” (1999) 20(3) Journal of Economic Psychology 343–377 and G Berger,
M Kern and L Thompson, The Enlightened Negotiator: What is the Best Type of Interaction? (16th
Annual IACM Conference Melbourne, Australia), available at SSRN on http://www.ssrn.com (accessed
23 August 2011).
G Berger, Gail, M Kern and L Thompson, The Enlightened Negotiator: What is the Best Type of
Interaction? (16th Annual IACM Conference Melbourne, Australia), available at SSRN on http://
www.ssrn.com (accessed 23 August 2011).
64[2.90]
59
60
61
See M Watkins, S Rosegrant and S Peres, “Integrative Negotiations” in Breakthrough International
Negotiation: How Great Negotiators Transformed the World’s Toughest Post-Cold War Conflicts (JosseyBass, San Francisco, 2001) pp 31–33.
As noted by C Menkel-Meadow, “Chronicling the Complexification of Negotiation Theory and
Practice”,
(2009)
25
Negotiation
Journal
415–429,
available
on
http://
www.scholarship.law.georgetown.edu/facpub/29 (accessed 23 August 2011).
RJ Condlin, “’Every Day and in Every Way, We are All Becoming Meta and Meta:’ Or How
Communitarian Bargaining Theory Conquered the World (of Bargaining Theory)” (2008) 23(2) Ohio
State Journal on Dispute Resolution, available at SSRN on http://www.ssrn.com (accessed 23 August
2011).
Negotiaon|CH
2
conducted in 1976. 62 The Williams study involved a relatively small sample
group of 351 lawyers (women lawyers were deleted from analysis because they
only constituted three per cent of the sample). A more recent and larger study of
negotiation behaviour suggests that lawyers who are most effective use a
problem-solving style. 63 In addition, lawyers who use an adversarial or
competitive approach are unlikely to be perceived as effective (25 per cent of
competitive lawyers were perceived to be “effective” in the Williams study and
only nine per cent in the much larger and more recent study by Schneider). 64
My own research on this topic also suggests that for clients, negotiation through
lawyers is a more unsatisfying form of dispute resolution than alternatives such
as mediation, arbitration and trial, although it is not clear whether the styles of
negotiation or the process itself (for example, whether it was conducted via a
“shuttle” letter-based exchange) impacted on these perceptions. 65
Similarly, the McFarlane 66 study in the collaborative practice area suggests
that integrative problem-solving can assist parties to reach significantly better
outcomes. This study is explored in some detail in Chapter 4. There is also work
in the mediation sector that is relevant. This is further explored in Chapter 3.
There are, however, only a few empirical studies that exist that apply to the
use of negotiation styles within the general population, or even specific dispute
areas 67 that can assist negotiators to understand the many issues that are
presented when analysing negotiation by reference to empirical studies
concerning “real life” behaviour. 68 Some small-scale studies have found that:
62
63
64
65
66
67
68
G Williams, Legal Negotiation and Settlement (West Publishing Co, US, 1983). See also IG Asherman, P
Bob, J Randall and S Asherman (eds), The Negotiation Sourcebook (2nd ed, Human Development
Press, Amherst, 2001) p 149 (for a summary by G Williams).
A Schneider, “Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation
Style” (2002) 7 Harvard Negotiation Law Review 143–233.
A Schneider, “Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation
Style” (2002) 7 Harvard Negotiation Law Review 143 at 189.
See T Sourdin and J Elix, Review of the Financial Industry Complaints Service 2002 – What are the Issues?
(Community Solutions, La Trobe University and University of Western Sydney, August 2002),
available on http://www.endispute.com.au (accessed 23 August 2011).
J Macfarlane, The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL
Cases (research report presented to the Family, Children and Youth Section, Department of Justice,
Canada, 2005).
[2.90]65
See, however, R Paqet, I Gaetan and J Bergeron, “Does Interest-Based Bargaining (IBB) Really Make a
Difference in Collective Bargaining Outcomes?” (2000) 16(3) Negotiation Journal 281–296 and a more
recent study discussed in T Atkin and L Rinehart, “The Effect of Negotiation Practices on the
Relationship Between Suppliers and Customers” (2006) 22(1) Negotiation Journal 47.
See RJ Condlin, “’Every Day and in Every Way, We are All Becoming Meta and Meta:’ Or How
Communitarian Bargaining Theory Conquered the World (of Bargaining Theory)” (2008) 23(2) Ohio
State Journal on Dispute Resolution, available at SSRN on http://www.ssrn.com (accessed 23 August
2011). A recent study concluded that “many questions in the field of negotiation research can be
effectively tested by using trained students as subjects”: see U Herbst and S Schwarz, “How Valid is
Negotiation Research Based on Student Sample Groups? New insights into a Long-Standing
Controversy” (2011) 27(2) Negotiation Journal 147.
AlternativeDisputeRsolution
• acknowledging the other side in a negotiation can improve the chances of
them accepting your concessions; 69
• better negotiation outcomes are likely to occur in positive climates (high trust,
cooperative orientations); 70
• there is a link between negotiators attitudes toward competitive-unethical
negotiating tactics and their actual behaviour; 71
• individuals trained to think creatively are more able to reach more integrative
solutions that are mutually beneficial to participants. 72
Most studies use simulated negotiations to make conclusions rather than
analysing real negotiations. While much research suggests that “adversarial
techniques” are unsatisfying and may have substantive impacts on a
relationship 73 and outcomes, there is undoubtedly a need to conduct further
empirical work in this area. It is probable that this work will be further
developed in the negotiation decision support area which involves using
technology to support negotiations and decision-making. Negotiation support
structures are discussed further in Chapter 10.
6[2.90]
69
70
71
72
73
See A Ward, L Disston, L Brenner and L Ross, “Acknowledging the Other Side in Negotiation” (2008)
24(3) Negotiation Journal 269.
See D Druckman and M Olekalans, “Turning Points in Negotiation” (2011) 4 Negotiation and Conflict
Management Research 1.
See R Volkema, D Fleck and A Hofmeister, “Predicting Competitive-Unethical Negotiating Behavior
and It’s Consequences”, (2010) 23(3) Negotiation Journal 263.
See D Ogilvie and S Simms, “The Impact of Creativity Training on an Accounting Negotiation” (2009)
18(1) Group Decision and Negotiations 75–87.
See, eg, T Sourdin and N Harding, A Review of Manly Council’s Development Application (DA) Process,
2006 (La Trobe University (Melbourne) and Nina Harding Mediation Services, 2006).