Negotiation: Strategy, Style and Skills [3 ed.] 0409338257, 9780409338256

Table of contents :
Full Title
Copyright
Foreword
List of Figures
List of Tables
Preface
Glossary
Table of Contents
Chapter 1: Negotiation: definitions, terms and approaches
The nature of negotiation
A constructive approach
How to use this book
Reflective and reflexive practice
Summary
Chapter 2: Positional negotiation
Introduction
Positional, distributive and adversarial negotiation
Setting the parameters: positions, goals, bottom lines, zones of agreement
Concession-making
Styles and tactics: positional negotiation
Opportunities and risks of positional negotiation
Summary
Chapter 3: Interest-based negotiation
Introduction
Interests, alternatives, options and independent criteria
Style and tactics of interest-based negotiation
Opportunities and risks of interest-based negotiation
Summary
Chapter 4: A constructive negotiation process
Introduction
What makes a negotiation successful?
Constructive Negotiation Model
Ten-step guide to constructive negotiation
Summary
Chapter 5: Preparing for negotiation
Introduction
A systematic approach to preparation
Summary
Chapter 6: Negotiation: larger-than-life communication
Introduction
The Negotiator’s Four Meanings in a Message (or the negotiator’s four tongues)
The negotiator’s four listening ears
Active listening
More communication skills for negotiators
Summary
Chapter 7: Deepening negotiator awareness and skills
Introduction
Working with conflict
Working with difference
Working with power
Working with multiple intelligences
Summary
Chapter 8: Decision-making in negotiation: storytelling, emotions, memory and persuasion
Introduction
Our brain and conflict
Making the most of memory
Negotiators as storytellers
Using your brain to make decisions in negotiation
Emotional hijacking (or the case of the stuck amygdala)
The power of empathy and contagious emotions
Decision-making traps
Emotions in negotiations — yours and theirs
The reflexive brain
Summary
Chapter 9: Culture, sex, gender and intersectional fluency — the language of the constructive negotiator
Introduction
The neuroscience of culture
Moving towards cultural fluency
Sex, gender and the constructive negotiator
Intersectional fluency
Summary
Chapter 10: Tough skills for tough negotiations
Introduction
How to handle hardball negotiation tactics
Overcoming impasses: so close yet so far away
Wicked problems
Summary
Chapter 11: Multiparty and team negotiations
Introduction
Multiparty negotiations
Understanding communication in groups
Team negotiations
Summary
Chapter 12: Ten principles for constructive negotiators
Introduction
Factors leading to an unsuccessful negotiation
Successful constructive negotiating
Useful books
Index

Citation preview

Negotiation Strategy Style Skills Third edition Nadja Alexander BA LLB (Hons) (Qld), Dip Internat’l (Vienna), LLM, D juris (summa cum laude) (Tübingen) Hon Professor, T C Beirne School of Law University of Queensland

Jill Howieson LLB (Hons) (Murdoch), BA (Psych) (Hons), GradDipBus (Edith Cowan), BA (English) (Curtin), PhD (UWA) Associate Professor, Faculty of Law University of Western Australia

Kenneth Fox JD (Cornelius Honor Society) (Lewis & Clark) BA (Rhetoric) (University of California) Professor, Business, Senior Fellow, School of Law Dispute Resolution Institute University Director, Conflict Studies Hamline University (US)

LexisNexis Butterworths

Australia 2015

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Alexander, Nadja Marie. Negotiation: strategy style skills. 3rd edition. 9780409338256 (pbk) 9780409338263 (ebk) Includes index. Mediation — Australia. Negotiation — Australia. Conciliation (Civil procedure) — Australia. Howieson, Jill. Fox, Kenneth H. 347.9409

© 2015 Reed International Books Australia Pty Limited trading as LexisNexis. 1st edition, Butterworths Skills Series — Negotiation: Theory and Techniques, 1998 (Reprinted 2003, 2004, 2005, 2006, 2009, 2010); 2nd edition, Negotiation: Strategy Style Skills, 2010 (Reprinted 2013, 2014). This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Bembo Std and Gill Sans Std Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Foreword I am pleased indeed to write the foreword to the third edition of Negotiation: Strategy Style Skills, which I consider to be a most important book. As business, social, family and political life become more complex, good negotiation skills are all the more necessary in all walks of life. However, good negotiators are not born with the necessary skills. In the past, the negotiation and conflict resolution skills that diplomats, business people and lawyers may have had were developed by trial and error and learned by (often hard) experience. Over the last quarter of a century, it has been recognised increasingly that there is a methodology of skill and practice in the field of negotiation and conflict resolution that can be both taught and learned. The authors of this book have outstanding credentials in the field of negotiation and conflict resolution as teachers, researchers, authors and as practitioners. Professor Nadja Alexander holds academic appointments in Australia, Hong Kong and the United States. She is a senior negotiation and mediation consultant for the World Bank Group and has worked as a conflict resolution specialist in more than 30 countries. Her books and journal articles related to the theory and practice of negotiation, mediation and conflict management are published worldwide, and she is an award-winning writer and teacher in this field. Currently, Dr Jill Howieson is Associate Professor at the University of Western Australia’s School of Law and conducts teaching and training programs in negotiation and mediation both in Australia and overseas. With a background in psychology and law, her research areas include procedural justice, alternative dispute resolution and legal education, and she has published widely in these fields. She has extensive practical experience as a lawyer engaged in the area of dispute resolution. Previously she was a member of the Mediator Standards Board in Australia. Professor Kenneth Fox has joined the writing team for this third edition of the text. He has taught,

trained, presented and worked on a broad range of projects related to negotiation, mediation and conflict management in the United States, Canada and Mexico, as well as in numerous countries in Europe, Asia and the Middle East. For the last 14 years he has been involved in a series of multi-year US State Department funded conflict transformation projects, working directly with Israeli, Palestinian, Jordanian and Lebanese educators and leaders. As with the other authors of this book, he has published widely in the areas of conflict theory, mediation and negotiation and similarly has broad and practical experience in the application of theory to practice in a wide business, government and community context. The authors have brought their considerable experience to the fore in writing this extremely readable, but thoroughly researched and thoughtful book. It is based upon the premise that the skills necessary to be a good negotiator can be learned in a structured and easily understood manner. The book provides the reader with the tools to engage confidently in constructive and principled negotiation practice. In the foreword to the second edition of this work I expressed my view that ‘this book will be of real assistance to all, lawyers and others, who engage in conflict resolution and negotiation, whether it be in the areas of commerce, employment, family, interpersonal or other kinds of disputes’. Experience since the publication of the second edition in 2010 demonstrates that that has indeed proved to be the case. I am confident that this third edition of a very useful and constructive book will prove to be even more valuable to those many people who have an interest in making our community a better place to live by the application of negotiation and dispute resolution processes. The Hon Murray Kellam AO Chair — National Alternative Dispute Resolution Advisory Council 2003–2010 June 2015

List of Figures Chapter 2

Figure 2.1 Figure 2.2

Chapter 3

Figure 3.1

Chapter 4 Chapter 5 Chapter 6

Figure 4.1 Figure 5.1 Figure 6.1 Figure 6.2 Figure 6.3

Figure 6.4 Figure 6.5 Figure 6.6 Figure 6.7 Figure 6.8 Figure 7.1 Chapter 7 Figure 8.1 Chapter 8 Figure 8.2 Figure 8.3 Chapter 10 Figure 10.1 Figure 10.2 Chapter 11 Figure 11.1

Zone of Possible Agreement No Zone of Possible Agreement — Bargaining Gap The Constructive Negotiator Does More Than Scratch the Surface — The Coral Reef Model A Constructive Negotiation Model Negotiation Navigation Map Basic Sender–Receiver Model Four-Meanings-in-a-Message Puzzle Four-Meanings-in-a-Message: Tom’s Message to Mia Speaking with Four Tongues Non-Verbal Meanings in a Message Incongruent Meanings in a Message Four Listening Ears Intention is not Impact Multi-Dimensional Constructive Negotiation We Have Three Brains ‘Think in Chunks’ Storytelling from the Emotional Brain The Impasse Quadrant Parties Move Back and Forth Between Two Types of Negotiation The Johari Window

List of Tables Chapter 2

Table 2.1

Chapter 3

Table 3.1

Chapter 4

Table 4.1 Table 4.2

Chapter 5

Table 5.1 Table 5.2

Table 6.1 Table 6.2 Table 7.1 Chapter 7 Table 9.1 Chapter 9 Chapter 10 Table 10.1 Table 10.2 Table 10.3 Chapter 11 Table 11.1 Chapter 6

Hypothetical Anatomy of a Negotiation Session Differences Between Positional and Interestbased Negotiation Concession-making Patterns Opportunities and Risks of Negotiation Openings Abbreviated Risk Analysis Visual Communication Media in Negotiation — Face-to-Face, Teleconference, Email Correspondence Framing the Discourse Ways of Reframing Negotiation Styles Cross-Cultural Starting Points Hardball Negotiation Tactics Shell’s Alternatives to Lying Typical Negotiating Traps Increase in Potential Relationships with an Increase in Group Size

Preface Since publishing the second edition of Negotiation: Strategy Style Skills in 2010, the field of negotiation has continued to evolve. Important new insights have emerged that shape the way we understand people, human interaction and the many contexts in which the negotiation process unfolds. This evolution includes new insights into the multiple dimensions of negotiator awareness; better understanding of the connections between our brain and our behaviour; a deeper appreciation of culture, race, sex, gender and intersectional identity; a deeper recognition of how wicked some negotiation problems can be and how to address them; and an evolving vision of what it means to be a ‘constructive negotiator’. This third edition incorporates many of these new and emerging insights. The reader will see both subtle and explicit changes from our second edition. We draw from a broad range of new sources, including many of the findings from a five-year international ‘Rethinking Negotiation Teaching’ initiative, as well as research from fields as diverse as anthropology and neuroscience, hostage negotiations and international diplomacy. What hasn’t changed is the central architecture of this book, which includes a three-dimensional model of negotiation and a ten-step constructive negotiation process. We continue to use a Negotiation Navigation Map as a visual preparation tool and link its central principles to evolving thinking in the negotiation field. All of these elements remain integrated in support of helping the reader become a sophisticated and constructive negotiator. Almost every chapter includes new information or insights. We have strengthened our discussion of reflective and reflexive practice in Chapter 1 to include multiple levels of awareness. We have updated examples in Chapters 2, 3 and throughout the book to reflect the increasingly globalised environment in which negotiations take place. In Chapters 4 and 5, we have enhanced certain elements of our ten-step process and negotiator’s map. In

Chapter 8, we have added new insights from neuroscience and decisionmaking. We created a new Chapter 9 to more fully explore culture, sex, gender and intersectionality in negotiation. In Chapter 10, we have added a discussion of ‘wicked problems’ — those complex, ill-defined and elusive negotiation situations that defy standard solutions. In Chapter 11, we have expanded our discussion of multi-party and team negotiations, and in Chapter 12, we have synthesised the new and additional insights into our ten principles for constructive negotiation. A number of people have contributed to this third edition, and we would like to thank them. We are particularly appreciative of the important work of Professor James Coben of Hamline University School of Law, Christopher Honeyman of Convenor Conflict Management, Giuseppe DePalo of ADR Centre, Rome, Andrew Wei-Min Lee of Leading Negotiation Institute, Shanghai, and Professor Noam Ebner of Creighton University. Collectively, these scholars shepherded a five-year, three-continent ‘rethinking negotiation’ process involving nearly 100 different negotiation scholars and teachers from around the world. The project produced four major volumes of writing, several special journal issues and multiple other publications that have extended negotiation thinking well into a new generation. We were among the fortunate who participated in, contributed to, and learned so much from, this monumental project. A number of changes to this third edition are a direct result of the Rethinking Negotiation Teaching project. We are grateful to Fox and Bradfield Lawyers in Brisbane for their input to various parts of this book. Heartfelt thanks go to George for his review and comments on numerous practical case studies throughout the book, to Doug for comments on Chapter 9 and to scientist and lawyer, James, for offering feedback and insights on the neuroscience aspects of Chapter 8. We are also very appreciative of the insights, resources, generosity and comments of A L ‘Fox’ Fox and Professor Colleen Bell for their invaluable contributions to Chapter 9 and our deepening understanding of the intersectional nature of culture, sex, gender, race and other characteristics of human identity and social power in negotiation. We are also grateful to the Honourable Murray Kellam AO for writing the

foreword to this third edition of the book. Ken is deeply thankful to Nadja and Jill for inviting him to join this important and rewarding enterprise, and for challenging him to continue to think more deeply and clearly about the possibilities of negotiation. During the writing of this manuscript, we have leaned heavily on those we love for all kinds of support. For their generosity and understanding, we thank our families without whom this book would not have materialised. We are deeply grateful to Mike and Mia; Claude, Jack, Cabe, Romy and Marco; Rhonda, Raina, Fox and Ian. Nadja Alexander Hong Kong, June 2015

Jill Howieson Perth, June 2015

Kenneth Fox St Paul, June 2015

Glossary Active listening

The cluster of skills involved in listening for the meanings in the message and providing the sender with appropriate feedback

Adversarial bargaining Negotiating in the shadow of the court. This means that negotiation takes places within the context of pending litigation and often includes arguments in relation to legal claims and remedies available from a court Alternatives

Those solutions available to you outside the negotiation, that you can pursue independently of the other party without needing to negotiate with that party. These are also referred to as walkway alternatives (see also ‘BATNA’ and ‘Walk-away alternatives’ below)

Bargaining gap

The absence of an overlap between your and the other party’s bargaining ranges (see also ‘Bargaining range’ below)

Bargaining range

The negotiation space between your opening position and your bottom line

BATNA

Fisher and Ury’s term for your ‘best alternative to a negotiated agreement’ (see also ‘Alternatives’ above)

Bottom line

Also referred to as your reservation level, it is your final offer before you are prepared to walk away from the negotiation

Brainstorming

A process whereby you and the other party put your ‘heads together’ to think of options without evaluating them

Calculus-based trust

Lewicki’s term for the more superficial type of trust found in short-term relationships

Claiming value

Deciding how to divide up the negotiation pie — in other words, who will get what in the negotiation (see also ‘Fixed pie’ below)

Compromise

The point of agreement, which lies between your opening position and your bottom line. It should be equal to or better than your bottom line and that of the other negotiator

Concession-making

The micro-process of offer and counter-offer as you and the other party each make concessions which move you closer towards an agreed outcome

Concessions

Concessions refer to the different positions that you may adopt as a negotiator as you move towards agreement. Making a concession generally involves giving up part of your previous position in order to move one step closer to the other negotiator’s position

Constructive approach An approach where negotiators recognise that no singular strategy is best, and where they will blend style, strategy and skill to conduct each negotiation in a constructive and ethical manner for successful and sustainable outcomes Constructive framing

Framing negotiation in an open, neutral and inclusive way, and framing messages in a way that acknowledges the other negotiator’s frame of reference as well as your own (see also ‘Reframing’ below)

Constructive negotiator

A negotiator who will make conscious choices between the diversity of styles, strategies and skills available in order to conduct each negotiation in a constructive and ethical manner

Creating value

Generating more options on the negotiating table in order to optimise your opportunities for mutual gain (see also ‘Expanding the pie’ below)

Critical reflection

Critically and honestly assumptions and biases behaviours and thoughts

Distributive negotiation

A form of negotiation characterised by the assumption that you and the other party are negotiating over a finite resource and that you will divide up (or distribute) the contents of the finite resource between you

Double-loop learning

Reflecting on what others’ motivations, underlying assumptions and theories in use may be, and how these might be influencing your own behaviours in social, political, theoretical, intellectual and psychological contexts

Emotional ‘hijacking’ or ‘flooding’

Occurs when emotions flood your brain and trigger emotional (rather than rational) responses

questioning the underlying your

Emotional intelligence Competence in perception, understanding, management and expression of emotion Empathy

Identifying and understanding the feelings of others, and responding with appropriate emotion

Expanding the pie

Collaborating to increase the resources available in the negotiation

Exploring issues and interests

The second stage in the four-stage constructive negotiation process, where you explore interests and issues, build trust and share information

Firm reasonable opening

An opening position that has two main characteristics: 1. there is little room for concessionmaking or similar negotiation manoeuvres, hence the descriptor, ‘firm’ 2. it is reasonable in that the opening position has taken into account concessions that might have been made by both negotiators and is above the bottom lines of both negotiators

Fixed pie

Viewing the resources available to you in positional negotiation as limited (to be contrasted with ‘Expanding the pie’ above)

Four-in-one message

Schulz von Thun’s concept of the four meanings contained in each message: information, selfdisclosure, relationship and request

Generating options

The third stage in the four-stage constructive negotiation process, where you focus on generating options that will meet the interests of the parties or solve the issues

Goal

Also referred to as your aspiration level, this is your assessment of the best possible outcome you could hope to achieve in a negotiation. It is what you aim for, although you do not necessarily expect to get it

Identification-based trust

Lewicki’s term for the trust found in deeper, closer and ongoing relationships

Independent criteria

Objective and independent points of reference and standards that you can use in relation to assessing and arguing the appropriateness (or not)

of a particular option Integrative agreements Include mutual gains and good quality deals for both parties Interest-based negotiation strategy

Negotiating towards outcomes that will satisfy your underlying interests and, at the same time, accommodate the interests of the other party

Interests

The needs, desires, fears and concerns that lie behind your position — the reasons why you make a certain claim or say you want something

Intersectionality

The complex, multiple and ‘intersecting’ power dynamics of race-, gender-, and class-based social and political interactions

Mentalizing

The ability to attend to mental states in yourself and others, and interpret behaviour accordingly

Meta-analysis

Reflecting on reflecting, or thinking about thinking

Multiple intelligences

Gardner’s capacities

Negotiation

Involves parties with perceived conflicting interests working towards an understanding or outcome as to how they can best resolve their differences

Negotiation Navigation Map

A negotiation preparation tool that canvasses essential aspects of the negotiation, including the process, the subject matter and the people involved in the negotiation

Opening position

Also referred to as your opening offer, a position that you adopt based on your goal and which may be the same as your goal

Options

Ways of meeting your and the other party’s

concept

of

different

intellectual

interests in order to resolve the issues between you Parties

Any individual, group, organisation or entity that has the authority to make decisions in a negotiation

Physical pacing

When you adopt body language that is congruent with that of the other party in order to build rapport

Positional information Information about your positions Positional negotiation strategy

Involves negotiating over positions and focuses on finding a solution that maximises your own gain — usually to the detriment of the other party

Positions

What you want or say you want: your goals, claims and demands

Priority information

Information about your main interests and issues (to be contrasted with ‘Positional information’ above)

Problem-solving opening

An opening that has two main characteristics: 1. no offers are made or positions described 2. it focuses on finding out what the other party’s needs and interests in the negotiation are, and why they are important

Reaching solutions

The fourth stage in the four-stage constructive negotiation process, where you work with the other party towards finalising an outcome

Reflection

Refers to the process of thinking about and

exploring issues that are triggered by an experience that you have had Reflective learning

The process of reflecting on your learning processes, which can then lead to you being a reflexive practitioner or negotiator

Reflexive practitioner

One who embraces critically reflective learning and will think about each negotiation in the social, political, theoretical, intellectual and psychological context in which it occurs

Reflexivity

Making sense of the experience beyond your world view, and with a view to the social, political, theoretical, intellectual and psychological context in which the experience occurred

Reframing

Changing the point of reference (frame) for a message with a view to moving the negotiation in a constructive direction

Relational positioning

The first stage in the four-stage constructive negotiation process, where you engage in both competitive posturing and relationship-building in testing the other party to see whether the negotiation will be competitive or cooperative, interest-based or positional

Risk analysis

An assessment of the opportunities and risks associated with choices that you may make in the course of a negotiation

Skills

Those abilities that enable you to implement your negotiation strategy

Soft goal-orientated opening

An opening position that has two main characteristics: 1. it is soft, meaning that it is just a starting point for negotiations — there

2.

is room for concession-making and similar negotiation manoeuvres it starts with your goal or very close to it, hence it is goal-orientated

Strategy

The overall method that you adopt in a negotiation, of which the two major strategies are interest-based and positional (see also ‘Interest-based negotiation strategy’ and ‘Positional negotiation strategy’ above)

Style

The set of interpersonal behaviours that you use in a negotiation

Tactics

The techniques, manoeuvres and other expedients you employ in a negotiation to further your strategy

Walk-away alternatives The range of alternatives available to you should you walk away from the negotiation (see ‘Alternatives’ above) Wicked problems

Complex, ill-defined negotiation situations that include elusive and shifting social, political and moral dimensions that defy standard solutions

Zero-sum

In distributive or positional negotiating, the parties negotiate as if they are dividing up a ‘fixed pie of value’. The more one party gets, the less the other receives and vice versa, resulting in a zero-sum game

Zone of possible agreement

The positive overlap between your and the other party’s bargaining ranges (see also ‘Bargaining range’ above)

Contents Foreword List of Figures List of Tables Preface Glossary

Chapter 1: Negotiation: definitions, terms and approaches The nature of negotiation A constructive approach How to use this book Reflective and reflexive practice Summary

Chapter 2: Positional negotiation Introduction Positional, distributive and adversarial negotiation Setting the parameters: positions, goals, bottom lines, zones of agreement Concession-making Styles and tactics: positional negotiation Opportunities and risks of positional negotiation Summary

Chapter 3: Interest-based negotiation Introduction

Interests, alternatives, options and independent criteria Style and tactics of interest-based negotiation Opportunities and risks of interest-based negotiation Summary

Chapter 4: A constructive negotiation process Introduction What makes a negotiation successful? Constructive Negotiation Model Ten-step guide to constructive negotiation Summary

Chapter 5: Preparing for negotiation Introduction A systematic approach to preparation Summary

Chapter 6: Negotiation: larger-than-life communication Introduction The Negotiator’s Four Meanings in a Message (or the negotiator’s four tongues) The negotiator’s four listening ears Active listening More communication skills for negotiators Summary

Chapter 7: Deepening negotiator awareness and skills Introduction Working with conflict

Working with difference Working with power Working with multiple intelligences Summary

Chapter 8: Decision-making in negotiation: storytelling, emotions, memory and persuasion Introduction Our brain and conflict Making the most of memory Negotiators as storytellers Using your brain to make decisions in negotiation Emotional hijacking (or the case of the stuck amygdala) The power of empathy and contagious emotions Decision-making traps Emotions in negotiations — yours and theirs The reflexive brain Summary

Chapter 9: Culture, sex, gender and intersectional fluency — the language of the constructive negotiator Introduction The neuroscience of culture Moving towards cultural fluency Sex, gender and the constructive negotiator Intersectional fluency Summary

Chapter 10: Tough skills for tough negotiations

Introduction How to handle hardball negotiation tactics Overcoming impasses: so close yet so far away Wicked problems Summary

Chapter 11: Multiparty and team negotiations Introduction Multiparty negotiations Understanding communication in groups Team negotiations Summary

Chapter 12: Ten principles for constructive negotiators Introduction Factors leading to an unsuccessful negotiation Successful constructive negotiating Useful books Index

[page 1]

CHAPTER

1

Negotiation: definitions, terms and approaches The nature of negotiation A constructive approach How to use this book Reflective and reflexive practice Summary

Objectives of this chapter Introduce a working definition of negotiation Explore the multi-dimensional nature of negotiation Introduce the constructive approach to negotiation Explain how to use this book in terms of its terminology Emphasise the importance of reflexive practice

The nature of negotiation 1.1 Negotiation is all around us. Although we negotiate often, we probably do not always name it, or recognise it, as such. Essentially, negotiation takes place any time that people have a discussion with each other (or a discussion

with themselves) to try to work out a solution, or to come to a common understanding, about an issue. [page 2] We know that negotiation is an ancient process and that humans have been negotiating for thousands of years. However, because it is such an habitual part of daily life, it is not something that we normally turn our minds to learning more about. We are likely to take negotiating for granted like speaking or walking: we don’t often think about it as a skill that we can learn. But, like any skill, it can be learnt and it can be improved with practice. This is one of the major aims of this book: to explore the nature of negotiation and to teach the key strategies, styles and skills associated with negotiating well.

What is negotiation? 1.2

So what is negotiation? One definition from Tillet is that:

Negotiation involves (two or more) parties with competing or conflicting interests or needs, working towards an agreement on how they will cooperate.1

We have adapted this definition, and a number of others, to compile our own definition.2 Negotiation involves people (negotiators) with perceived conflicting interests, working towards an understanding of how best to resolve their differences or reach a deal.

We explain this definition as follows. Negotiation: involves people: Negotiation is primarily a social interaction and can occur between individuals, between groups or within groups. Negotiation can also occur directly between the parties themselves, or between representatives (agents) who act on behalf of others. Negotiation can also take place within our own minds. It is therefore a fundamental and universal function that we share as humans; with perceived: People may or may not have shared interests. Even when they do, they often cannot see that they are shared when they are in the middle of conflict, or when they are arguing over a particular want or desire;

conflicting interests: Interests are the needs, desires, fears and concerns behind a demand and when we are negotiating or in conflict we often perceive that these interests are conflicting with those of our counterpart; working: Negotiation can involve hard work. It involves preparation, skill, patience and perseverance and can be time-consuming and [page 3] arduous. It is not necessarily a simple task to conduct successful and constructive negotiations; towards an understanding: The word ‘understanding’ implies a shared recognition of how best to treat a problem or issue and can have many facets to it; as to how they can best resolve: Negotiations can end with an agreement that is simply a bandaid solution; namely, it can leave the problem still festering and only temporarily avoided or fixed. Working with the other party to choose the best way forward implies resolution and finality; their differences or reach a deal: The aim of negotiation is to understand and reconcile issues and differences or to make deals that can improve upon otherwise available options. This can be achieved through using a range of strategies and skills, which we demonstrate throughout this book.

Purpose of negotiation 1.3 People negotiate over every conceivable thing. However, negotiations generally are initiated for one of two broad reasons: to establish new deals or relationships (transactional negotiations); and to save or end existing deals or relationships (dispute resolution negotiations). Transactional negotiations focus on establishing and defining new agreements and relationships — making deals. The transaction may be momentary, such as an immediate exchange of money for goods in a marketplace, or buying a refrigerator from a store. Alternatively, they may

extend over time, such as an ongoing business partnership, for example, a medical partnership or a partnership in the food and beverage industry. A successful transactional negotiation leads to an agreement that clearly defines the relevant elements to a new relationship. Dispute negotiations focus on problems, disputes or conflicts that arise from an existing relationship. A successful dispute negotiation leads to a settlement of contested claims or a resolution of the underlying sources or causes of the dispute, in turn leading either to a continuation of the existing relationship or an end to that relationship based on certain agreed upon terms.

Multi-dimensional nature 1.4 Negotiation is also a multi-dimensional process. It involves people, and all the patterns of personality, power, communication interaction and culture that attend our humanity. Negotiation also involves multiple dimensions of time (past, present and future) and space (physical and personal) and involves [page 4] a multiplicity of choices. Negotiation is also contextual. How it is conducted will depend on the purpose, issues, process and people involved.

Successful negotiation 1.5 Successful negotiation involves understanding the many dimensions and different contexts in which people negotiate. It involves understanding the different styles, strategies and skills of negotiating, and learning how to design and construct each negotiation in a manner that will achieve an outcome that both negotiators are satisfied with.

A constructive approach 1.6 The approach that this book takes to successful negotiation is called a constructive approach. It involves understanding both the art and science of negotiation.

Art, because negotiation is a creative and mindful process — being able to blend and balance the various dimensions of negotiation is an art form. Being artful means putting some of yourself and your personality into negotiations, developing your own style and trusting your intuition. Science, because negotiation is about humans — understanding how and why humans think and behave in the way they do in the negotiation, and being able to apply this knowledge in the context of each particular negotiation is a science. In this book, we take the view that being yourself and being artful, while at the same time learning from the science of negotiation, will hold you in good stead for conducting constructive and successful negotiations.

How to use this book 1.7 Because of the multi-dimensional nature of negotiating, we will not tell you how to negotiate in this book. Instead, we provide you with information that we have derived from our own experience as everyday negotiators and teachers, from media stories of negotiation, and from the abundance of social science research that researchers from many disciplines — including economics, psychology, business, sociology and law — have provided us with over the past century. At various points in this book, we use examples to illustrate concepts we are discussing. We invite you to think about your own lived experience and to draw your own negotiation examples from it. The main theme of the book is that there is no one strategy to cover all negotiation situations. Therefore, the best way to use this book is to consider the information provided, think about your own negotiating style and skills, and consider how you might up-skill those areas of yourself where you [page 5] have weaknesses as a negotiator, as well as learn how to better work with your strengths. Our aim is to provide you with ideas on how to master the

strategies and skills that might better equip you to conduct better negotiations in the future.

Terminology 1.8 As in any field, there is a considerable amount of jargon in negotiation scholarship and much of the terminology is often used interchangeably. Set out below is what we mean by the terms ‘strategy’, ‘style’ and ‘skills’, and a brief outline of how others might define these concepts. We also explain what we mean by other relevant negotiation terminology. Strategy 1.9 Strategy means the overall method that the negotiator adopts, and we identify positional and interest-based as the two major strategies. The positional negotiation strategy is one that focuses on finding a solution that maximises the negotiator’s own gain — usually to the detriment of the other party. Other terminology for this strategy includes distributive, competitive, adversarial or zero-sum bargaining or negotiation. It is also sometimes referred to as a ‘competitive claiming-value’ strategy. An interest-based strategy involves a substantially different methodology. It involves developing solutions that satisfy the negotiator’s underlying interests and, at the same time, accommodating the interests of the other party. Other terminology for this strategy includes integrative, problem-solving, cooperative, principled, win-win negotiation or bargaining. Sometimes it is also referred to as a ‘cooperative creating-value’ strategy.3 Style 1.10 Style refers to the set of behaviours of the negotiator, and the two most common styles include cooperative and competitive styles. The cooperative style of negotiator tends to show positive and friendly behaviours and this negotiating style is most commonly associated with an interest-based strategy. Terminology that others use for this style of negotiating includes conciliatory, collaborative or facilitative. A competitive negotiator is one who usually shows more obstructive and

negative behaviours and the competitive negotiating style is usually associated with the positional strategy. Other terminology for the competitive style includes adversarial, interventionist, evaluative or hostile. [page 6] Skills 1.11 Skills refer to the entire range of negotiator skills from preparation and strategy, to communication and intelligence. The skills of a constructive negotiator include knowing how to master the use of the appropriate skill at the appropriate time, and being flexible and reflective in negotiation practice. Tactics 1.12 Tactics is a word that often appears in the negotiation literature. Although the word can often have a negative connotation, we refer to tactics as the actions or structured behaviours of negotiators, both positive and negative, and again emphasise that skillful negotiators will choose from an assortment of tactics to suit the particular negotiation. Constructive negotiation 1.13 Above we introduced the term constructive negotiation. We refer to a constructive negotiator as one who will make conscious choices between the range of styles, strategies and skills available in order to structure each negotiation for the most successful and ethical outcome possible in the particular situation.

Reflective and reflexive practice 1.14 Further terminology that we use in the book is that of reflective and reflexive. These are another pair of words that writers often use interchangeably but there are important differences between them. What we present below is a reflexive–reflective framework. We talk about being a reflexive negotiator in

the more holistic and dynamic sense described below, and we refer to reflective learning as the process of reflecting on the learning process. Reflective refers to a process of thinking about and exploring an issue based on one’s observations and direct experience. One can reflect on (past) action and one can reflect in (ongoing) action. The aim of this reflection is to make sense of the experience in accord with one’s view of self and view of the world, to seek new insights from the experience about oneself, others and the situation, and then to incorporate the experience and insights into that view. Being reflective is an individual analysis if you like — this happened (or is happening) to me, this is what I think about and can learn from it, and this is how I will think and what I will do about it right in this moment or in the future. What we ask for you to do in this book is be a reflective learner. Reflexive refers to an awareness of the fluid nature of one’s experiences and the ways that meaning evolves through interaction. Reflexive [page 7] practice involves being attuned and able to make sense of complex and dynamic experiences as one interacts with one’s surroundings. It also means making sense of an experience beyond one’s world view, and with a view to the social, political, theoretical, intellectual and psychological context in which the experience occurred. It is both a meta-analysis and a micro-focus if you like, reflecting on reflecting, or thinking about thinking — this is what happened, this might be why it happened (in context), this might be how I arrived to understand it in the way that I do (in context), and this is one of the ways that I can modify it or change how I will interact with it moving forward.4 What we ask for you to do in this book is be a reflexive practitioner.

Building awareness 1.15 One way to be a reflexive practitioner is to build greater awareness — of oneself, of others and of the larger context within which negotiation interactions unfold. Within each of these three levels of awareness are multiple

dimensions: cognitive, emotional and physiological or ‘embodied’ awareness. By building greater awareness among these multiple levels and dimensions, a negotiator can better understand and navigate the emergent and complex nature of the negotiation process itself. Awareness of self. Awareness of self focuses on practices where a negotiator becomes better attuned to one’s own way of thinking, feeling and being — building inner awareness: What world views, ideological standpoints, assumptions and thought processes help me organise, interpret and judge the information I receive (the cognitive dimension of awareness)? How well do I perceive, understand, regulate and appropriately adapt my emotional self during negotiation (the emotional dimension of awareness)? How am I attuned to my physical sensations and spacial relations (physiological dimension of awareness)? Awareness of other. Awareness of other focuses on practices that help a negotiator become better attuned to one’s counterpart at the table and to those immediately involved in a negotiation situation. How open and curious am I to understand, on my counterpart’s own terms, their world view, values and ways of making sense of the negotiation (critical insight)? How ‘present’ can I be to the emotional dimensions of my counterpart’s experience (empathy)? How attuned [page 8] am I to the quality of physical presence of my counterpart in relation to me (proprioception)? Awareness of context. Awareness of context refers to a range of elements: the physical setting in which the negotiation takes place; the negotiation process itself; the cultural, ideological (world view) and environmental conditions that surround the situation; the roles and relationships (including power relations) among the parties and others within the larger network of relations and social contexts, including customary practices and norms. Taken together, these levels and dimensions of awareness help a negotiator open up to the many (and often subtle) sources of information that lead to

deeper insights and more successful outcomes. They are also part of reflexive practice.

Reflective-learning, reflexive practitioner 1.16 The process of reflective learning involves actively thinking about the process of learning about negotiation. It involves experiencing negotiation (either in real life or in role-play), thinking about the motivations and ideas behind your own behaviours in the negotiation (and what the other negotiator’s might be), confronting your own biases and assumptions (and speculating on the other’s), thinking about the characteristics of the negotiation situation (the process, context and culture), analysing how all of these are interrelated, reflecting on your analysis, and then using your reflection to guide your decision making or actions in the next negotiation — and then repeating the reflection process again after each negotiation. 1.17 Being reflexive is important for all professionals. Indeed, many now recognise that learning from one’s experiences in a reflective (exploring one’s experience as an individual) and reflexive (‘exploring one’s experience as an individual, as part of a dynamic social world and as a member of the intelligentsia’)5 manner can make the difference between a competent and an excellent professional. The same applies to negotiation. A reflexive negotiator will be one who rises above their knee-jerk reaction, to become a negotiator who is both an artist — in the sense that they can work within the multidimensional nature of negotiation — and a scientist who can adopt an approach of ‘knowledge as process’ to each negotiation. 1.18 Being a reflective learner and a reflexive practitioner can be a very powerful negotiator’s tool. Reflection makes behaviours conscious and reflexivity allows an understanding of the complexity and multi-dimensional [page 9] nature of negotiation. Our general message, therefore, is that constructive negotiators will need to be adept at the multiple strategies, styles, tactics and skills of negotiation to be effective. We also believe that to be effective

negotiators, you will need to be effective learners — and this means you will need to be reflective learners. We hope, therefore, that you will use this book not only to improve your negotiating skills, but that you will also use it to improve your learning skills.

Summary 1.19 We opened this chapter with a working definition of negotiation as a process that ‘involves people with perceived conflicting interests, working towards an understanding of how best to resolve their differences or reach a deal. We talked about the complex and multi-dimensional nature of negotiation and explained the concept of constructive negotiation, which we see as a blend and balance of the different styles, strategies and skills of negotiation. We discussed the idea that constructive negotiation is both an art and a science: an art because it is a creative and mindful process, and a science because it involves understanding the science behind the principles, processes and skills of negotiation. We concluded with descriptions of the terms used throughout the book and explained the importance of understanding reflective learning and reflexive practice.

Key negotiating points 1.20

The key negotiating points covered in this chapter are listed below:

Negotiation. Negotiation takes place at any time that people have a discussion with each other to try to work out a solution to a problem, or to try to come to a common viewpoint about an issue. It involves parties with perceived conflicting interests working towards an understanding or solution as to how they can best resolve their differences or reach a deal. Constructive negotiation. A constructive approach is one where the negotiator will recognise that no singular strategy is best, and where the negotiator will blend style, strategy and skill to construct each negotiation in the most successful and ethical manner possible. Reflexive negotiator. A reflexive practitioner is one who will build multiple dimensions of awareness, will embrace critically reflective learning and will think about each negotiation in the social, political, theoretical, intellectual, psychological and physiological context in which it occurs. Reflexive negotiators will modify their behaviour to make better choices for their next negotiation.

[page 10] The art and science of negotiation. Negotiation is a creative and mindful process and involves putting some of yourself and your personality into negotiations — this is the art. Negotiation is also a human process and involves being able to apply knowledge of human motivation and behaviour to negotiations — this is the science. Negotiation is learnable. Just as one can learn to create better artworks and understand scientific processes, so, too, one can learn to construct better negotiations. And, like learning any skill, one can learn to be a successful, constructive and reflexive negotiator.

___________________________ 1. 2.

G Tillet, Resolving Conflict, Sydney University Press, Sydney, 1991. G Tillet and B French, Resolving Conflict, 4th ed, Oxford University Press, South Melbourne, 2010; B Goodman, ‘The Art of Negotiation’, Psychology Today Magazine (Jan–Feb 2007).

3. 4.

R Fisher, W Ury and B Patton, Getting to Yes: Negotiating Agreement Without Giving In, 2nd ed, Penguin, New York, 1991. C Man Lam, H Wong and T Tse Fong Leung, ‘An Unfinished Reflexive Journey: Social Work Students’ Reflection on their Placement Experiences’ (2007) British Journal of Social Work 91; A Cunilffe, ‘Reflexive Dialogical Practice in Management Learning’ (2002) 33 Management Learning 35.

5.

Man Lam, Wong and Tse Fong Leung, note 4 above, at 94.

[page 11]

CHAPTER

2

Positional negotiation Introduction Positional, distributive and adversarial negotiation Setting the parameters: positions, goals, bottom lines, zones of agreement Concession-making Styles and tactics: positional negotiation Opportunities and risks of positional negotiation Summary

Objectives of this chapter Examine the similarities between positional, distributive and adversarial negotiation Discuss how positional negotiators set the parameters of negotiation using positions, goals, bottom lines and zones of agreement Show how positional negotiators use concession-making Explore the styles and tactics of positional negotiation Consider the opportunities and risks involved in using positional negotiation

Introduction 2.1

In this chapter, we will explore the strategy of positional negotiation.

As the name suggests, this approach to negotiation is based on the parties’ respective positions or claims. Positional negotiators focus on their differences and seek to bridge the gap by making a series of concessions. [page 12] Most civil litigation cases are settled out of court and don’t go to trial. The predominant negotiation style used for legal settlements remains positional. This is perhaps not surprising as they are conducted within an adversarial framework. Here is an illustration from the United States.1 On a dreary, rainy night in October of 1968, a young woman was driving behind a lorry truck in the US. Perhaps impatient with the speed of the transport in front of her, the young woman by the name of Ms Anderson steered her vehicle to peer around the lorry driver’s side to see if the way was clear. Before she could react, she was struck head on from an oncoming vehicle from the opposite direction. Ms Anderson sustained permanent and debilitating injuries as a result of this horrific crash. Just recently, she had retrieved her vehicle from Sorensen Chevrolet [where] she had been having some repairs completed. Unbeknownst to her, Ms Anderson did not notice that her front driver’s side headlight was malfunctioning. The oncoming driver who had struck her had not seen her on that dark misty night when the accident occurred. Mr Miller, lawyer representing Ms Anderson, held Sorenson Chevrolet as being liable for the accident and subsequently filed a $1,633,000.00 law suite against Sorensen. Sorensen had a faulty repair policy with an insurance company (which shall be called ABC Insurance). The policy had a ceiling of $500,000.00. Sorensen made it very clear to ABC Insurance that they would readily sue ABC if they settled for anything over the half million limit of the policy, urging them to settle out of court. Miller, the plaintiff’s lawyer, countered that he would not accept an out of court settlement for anything less than the maximum half million allowed under Sorensen’s insurance policy. ABC went to court and won a summary judgment where the decision rendered entailed that the plaintiff had no legal basis for a trial. ABC made a tentative offer of $25,000.00. Miller countered this with a demand for $400,000.00 and had, in the interim, appealed the court’s decision not to hear the case. ABC upped their offer to settle at $50,000.00. In December of 1973, the appeal was heard. The Appellate Court reversed the decision and the summary judgment was overturned. The case could now be heard before a jury which turned the game around. Miller, once again, demanded the full half a million. It was not until February of 1973 that ABC upped their offer to $200,000.00 which was rejected, and then upped their offer to $250,000.00. Miller lowered his demand to $400,000.00, as a counter offer. This was rejected by ABC, and he then lowered it again to $350,000.00. The time factor was beginning to play on the plaintiff, and Ms Anderson was becoming risk averse to the whole negotiation process.

[page 13] In January of 1975, Miller told ABC that the ‘bottom line’ settlement that he would accept would be $325,000.00. ABC said they would go to trial over the difference. It was virtually on the court steps that ABC discovered that Miller had been replaced as Ms Anderson’s counsel. Her new attorney offered ABC another ‘bottom settlement’ of $300,000.00. ABC agreed to the settlement.

Many of you may also recognise positional negotiation as the dominant approach associated with stereotypical images of buying and selling cars, houses and items from a garage sale. In some parts of the world, positional negotiation in the form of marketplace haggling is prevalent in relation to everything from celery to salaries. The art of haggling and its cultural importance is demonstrated in the now classic scene out of Monty Python’s Life of Brian, a film set in biblical times. In the negotiation scene, the buyer, Brian, pursued by Roman soldiers, fails to engage in the negotiation dance expected in positional market haggling and is willing to pay the first price that the seller, Harry the Heckler, asks. This leads to immense frustration on the part of Harry, who, in turn, refuses to part with the article — a fake beard which Brian plans to use as a disguise — unless Brian tries to bargain him down. What follows is an hilarious lesson in positional bargaining. As a negotiation approach, positional bargaining has a controversial reputation. It is frequently associated with ‘dirty tactics’ and aggressive behaviour, while positional negotiators have been likened to tricksters, gangsters and other ‘tough guys’. Hard-nosed positional negotiation provides the dramatic tension for negotiations represented in novels, films and television. In a thought-provoking article, Condlin2 challenges these images and criticises the demonisation and exclusion of positional bargaining in favour of the interest-based approach that we examine in the next chapter. We agree that it is unrealistic and unfair to limit positional bargaining and bargainers to such a negative caricature. At the same time, it would be naïve to suggest that exaggerations, bluffs and deceit do not occur in (positional) negotiation. Caught unprepared, inexperienced negotiators may quickly find themselves on the losing side of a win–lose game. This chapter begins with an exploration of positional bargaining conducted with integrity and in accordance with basic ethical principles. In Chapter 10,

we consider more closely positional tactics on both sides of the ethical divide and how negotiators can effectively respond. [page 14]

Positional, distributive and adversarial negotiation 2.2 In the negotiation literature, positional negotiation is also referred to as distributive and adversarial negotiation. These terms share fundamental commonalities such as the concept of the zero-sum game, which is explained below. However, they also emphasise different aspects of the negotiation process that we now address.

Positional negotiation 2.3 Positional negotiation emphasises linear, and typically reciprocal, concession-making, in which parties move from opening positions in everdecreasing increments toward compromise. Negotiators generally aim to reach an agreement that lies between two positions, namely their opening position and their bottom line. The opening positions of the parties set the parameters for the negotiation. For example, if you are selling your car and ask for $25,000 and the potential buyer offers $15,000, then these two opening positions set the parameters or points from which concessions are made. A loss for one party in the form of a concession means a win for the other.

Distributive negotiation 2.4 Distributive negotiation is characterised by the assumption that the parties are negotiating over a finite resource, often referred to in the literature as a fixed pie. This approach invokes the notion of a zero-sum game, according to which the parties divide up (or distribute) the contents of the fixed pie among themselves. Both parties assume they have the same objectives in terms of wanting the same item/s, and that the more one gets, the less for the other

and vice versa. Where, for example, there is a dispute over the terms of a deceased person’s will, the potential beneficiaries — the deceased’s children and partner — all compete for a piece of the estate pie. The more one person gets, the less there is for the others. It is no surprise, therefore, that with a distributive mind-set, disputes of this kind can be particularly competitive and acrimonious.

Adversarial negotiation 2.5 Adversarial bargaining also operates within a zero-sum framework. It is used particularly in the context of legal negotiation, or negotiation in the shadow of the law. When parties are negotiating in the context of pending litigation, they are operating within the zero-sum framework of the legal remedies available from a court. These include remedies such as an amount of money to be paid by one party to the other in the form of [page 15] damages, specific performance orders for one party to do something such as complete a contract, or injunctive orders to prevent a party from doing something. 2.6 In this book, we use the term positional negotiation or positional bargaining in a broad sense to include the concepts highlighted in the adversarial and distributive bargaining definitions above. So let’s look more closely at a positional negotiation. Imagine you are cleaning out your attic and find a vintage Motorola analog ‘brick’ cell phone (the kind you’d see in early 1990s television programs). It still has the original packaging and all the accessories. You wouldn’t mind keeping it as a souvenir but your partner insists that you list it on Craigslist along with the other junk you are getting rid of. You learn from a little research that this model is important to the history of mobile phones but is probably not functional on current digital networks. Other similar-aged phones listed on-line show a large price range — from as low as $10 to upwards of $250 or more, depending on model and condition. You list your phone for $150, but would

accept anything above $50. You would be thrilled if you could sell it for $100. Your partner would be willing to throw it in for free with any other item sold, just to get it out of the house. You get a call from a Mr Cooper (he says you can call him Martin) who is just visiting from Chicago and noticed your listing. He worked in the mobile phone industry from its earliest days, has a sentimental attachment to these old phones and has a small collection. He’d like to buy yours but says he is on a limited budget. Following a long conversation where you reminisce together about how this was your first phone and how he was part of an industry that changed the world, you agree to meet and talk price. Martin inspects the phone and its packaging and says he would like the phone, but that it is only worth about $40 (knowing full well that he will need to pay more if he intends to close the deal; in fact, he is privately willing to pay as much as $125). He adds there are not many people like him, who appreciate and are willing to pay even that much for a non-usable and obsolete phone. You counter that similar phones are listed on Craigslist and eBay for substantially higher prices and that your posted price is fair. You remind him of its sentimental value and your having considered keeping it. Finally, you counter at $125, to which he replies he hadn’t planned on buying anything on this trip. He could pay $70, commenting that it is about as high as he is willing to go. You reply that since he is on holiday and took the time to meet, he has a deal at $100. Martin hesitates. After looking one final time at the phone and packaging, he says: ‘We both came a long way for this deal. We share fond memories of these early phones. I doubt I will ever come back this way. If you can meet me in the middle, $85, I’ll pay you in cash and buy you lunch.’ [page 16]

Setting the parameters: positions, goals, bottom lines, zones of agreement 2.7 As indicated previously, from a substantive perspective, positional negotiation involves dividing up a fixed amount of resources. Setting the

parameters of the negotiation is critical to determining what resources are available and subject to negotiation. Once parameters are set, negotiations generally take place within those boundaries. The variables critical to setting the parameters of positional bargaining are, not surprisingly, different types of positions. The main types of positions are: the opening positions of all negotiators, also called opening offers or demands; the goals of all negotiators, also called aspiration levels; the bottom lines of all negotiators, also called reservation levels; and the expectations of the negotiators. In reality, there is more to positional negotiation than the positions listed above. In our example above, the two of you were building a relationship — albeit short-term — by discussing what the phone meant to you and about Martin’s early career in the industry. In addition, there are pauses, turns, gestures and reflective moments, which all contribute to the subtleties of the negotiation. These relationship and communication aspects of negotiation are considered further in Chapters 6 and 7. Here we will focus on the characteristic elements of positional bargaining that distinguish it from interest-based processes.

Positions 2.8 First, let’s define a negotiation position. Essentially positions represent what negotiators say they want: their presenting goals, claims and demands. Your initial posted price of $150 is a position, as is Martin’s initial offer of $40. So when we talk about positions, we are not considering how the relevant parties calculated the position; neither are we particularly interested in the concerns, interests and needs that led one party to adopt a particular position. That is not to say that these factors are irrelevant. On the contrary, as we will see below, they are critical in deciding where to set your opening offer and bottom line. However, unlike in interest-based bargaining, these motivating factors do not usually feature in the actual negotiation conversations between the parties. Now we will look at the different types of positions — goals, expectations

and bottom line — a little more closely.

Goals 2.9 Good negotiators always set goals, which are also referred to as aspiration levels. Shell explains that ‘goals are things we strive towards that are usually [page 17] beyond the range of our past achievements’.3 He explains that goals help to set our direction and motivate us to move beyond our comfort zones and aspire to personal bests — hence the term aspiration level. Moreover, we are not overly surprised or shocked, nor are we excessively disappointed, if we do not achieve our goals in a negotiation. Goals inform a negotiator’s opening offer. Opening offers can be seen as articulated goals. In other words, they are the goals you are prepared to communicate to the other side. That said, you are unlikely to get more than what you ask for in negotiation, and so the utility of an unarticulated goal to optimise your negotiated outcome is questionable. As you work through this book, you will see how your opening offer has a direct relationship to your negotiated outcome.

Expectations 2.10 In addition to goals, effective positional negotiators will also have expectations, sometimes called a target point. Expectations reflect a reasoned assessment of what you think you will realistically get out of the negotiation. If your expectations are not met in the negotiation, you are likely to be disappointed and you might even be surprised or shocked. In our case, although you listed the phone at $150, you expected to receive substantially less and would have been ‘thrilled’ to earn $100. Notice, too, that your partner was willing to almost give the phone away, which can also influence your expectations.

Bottom line

2.11 The point at or after which a negotiator will walk away from the negotiations is called the reservation level or bottom line. This is generally not the same as your expectation level. In our case, while you hoped for more, you were willing to accept an offer as low as $50. Thus, if you are true to your bottom line, then you would have walked away from Martin if he had not raised his offer to $50 or above. For his part, Martin was willing to spend as much as $125 for the phone, although he did not find a need to state that. 2.12 Once the parameters are set, the focus of the negotiation becomes how to distribute the value within them. As we indicated previously, this is known as the fixed pie in negotiation speak. In its simplest form, the fixed pie is the difference between the parties’ opening offers. It is also called the available surplus to be distributed between the negotiators. In the mobile phone negotiation it is $125 − $50 = $75. In other words, the parties will negotiate to determine how to divide the $75 between them. Notice that Martin’s opening offer was $40. This offer fell below your bottom line of $50. If you held true to your bottom line, there could be [page 18] no deal unless Martin raised his offer to, or above, $50 (which he did). As a result, in this case the real difference to be distributed is determined not by Martin’s opening offer, but by the bottom line itself. If you were to accept Martin’s final $85 offer, then the $75 surplus has been divided as follows: $40 for Martin; and $35 for you. Does this mean that Martin has negotiated better than you? Given the opening offers — and putting aside the free lunch for the moment — from a negotiation perspective, the answer is yes. We will look at how and why this is the case in our discussion of concession-making below.

Zone of agreement

2.13 When analysing negotiations, theorists refer to the zone of possible agreement (ZOPA) as both an indicator of the likelihood of agreement and a basis for examining how well each of the parties negotiated. The ZOPA can be defined as the positive overlap of the negotiators’ respective bargaining ranges. The bargaining range provides the parameters for concession-making and reaching agreement. Figure 2.1 illustrates a ZOPA using our hypothetical negotiation scenario. Here we assume that you would have sold the phone for as little as $50 and that Martin would have paid as high as $125. Therefore, on this scenario there is a zone of potential agreement with a range of $75. Notice that your list price of $150, and Martin’s opening offer of $40, both fall outside the zone of possible agreement, because there is no positive overlap at either end. Figure 2.1:

Zone of Possible Agreement

However not all negotiations have a zone of possible agreement. Let’s assume that your bottom line is $100 and that Martin’s bottom line is $85. [page 19] In this case, as Figure 2.2 shows, there is no ZOPA. Instead, there is a bargaining gap and, provided the parties stick to their respective bottom lines, there is no possibility for agreement. Figure 2.2:

No Zone of Possible Agreement — Bargaining Gap

Concession-making 2.14 Concession-making is the micro-process within positional negotiation that parties use to move them towards an agreed outcome. It is often referred to as a negotiation ‘dance’, due to the tactical choreography that ensues with a view to ultimately reaching agreement. It also gives positional bargaining the name ‘outside-in’ negotiating because, through this dance, negotiators move from more extreme initial outside offers in toward the middle where they seek a point of convergence, or agreement. We make some general observations about concession-making in this section, and then, in Chapter 10, we explore in more depth the skills that are critical to mastering the art and science of making concessions in particularly challenging negotiations. The process of concession-making takes negotiators through a series of positions, counterpositions, and culturally appropriate posturing as they move towards an outcome. Research shows that positional negotiators generally expect and value a settlement based on a progression of comparisons; that is, concessions.4 Let’s use your negotiation with Martin to look more closely at this process of micro-concessions. [page 20] Table 2.1: Negotiation round 1

Hypothetical Anatomy of a Negotiation Session You List mobile phone for sale at $150

Martin

Comment

2 3

Martin offers $40 $125

4 5 6

$70 $100 $85 cash plus lunch

Not many people would want a nonusable, obsolete phone You’ve done your research, comparable phones cost more, and this price is fair Martin hadn’t planned to buy a phone on this trip and is close to his limit He is on holiday and took time to meet with you Both you and Martin came a long way for the deal and share fond memories

2.15 You will notice, in Table 2.1, the series of offers and counter-offers, supplemented with various explanations and justifications. The negotiation, which follows a traditional concession-making sequence, illustrates the typical moves and counter-moves that competitive positional negotiators may make. We have put these behaviours and moves together as a set of guidelines for those wanting to understand, and engage effectively in, the positional dance. 2.16 Positional negotiators: 1. make sure their opening position leaves them sufficient room to make concessions. You listed the phone at $150 but were willing to accept as little as $50. In turn, Martin initially offered $40 but was willing to pay up to $125; 2. may make the first offer in order to set the tone for the negotiations. When positional negotiators have done their research, and are confident and well-informed about how the other side is valuing both the relationship and the subject matter of the negotiation, they will endeavour to make the first offer. This tactic makes use of the ‘anchor and adjustment trap’;5 namely, that people tend to be influenced by the first offer on the table, which may force them to rethink and adjust their expectations and goals. In our example, you have done your homework and set the asking price directly on Craigslist. Notice in our case that Martin’s initial offer was quite far away from your list price. He may be [page 21]

3.

4.

5.

a sophisticated buyer whose own expertise allows him to see past your anchor and to set his own — here, below your bottom line; may wait for the other negotiator to make the first offer. Conversely, if positional negotiators are not well prepared and lack confidence about how the other negotiator is likely to engage in the negotiation, they will encourage the other to open first. Once they know the other negotiator’s opening position, positional negotiators have time to rethink their own opening position with a view to optimising the chances of achieving their goals. In the alternative, sophisticated negotiators who think their counterparts may not know the true value of the subject of the negotiation, might also encourage the other negotiator to open first. This creates the possibility that the less sophisticated negotiator will open higher (or lower) than they might otherwise, in effect making an unforced concession and shifting the entire negotiation range in a direction favorable to the sophisticated negotiator. This is demonstrated regularly on a popular reality television program where a pawn store owner asks sellers to set the value of items they want him to buy. If they begin by asking too much, he counters low. If they ask too little, he continues to bargain for a lower price, having already achieved significant gains. Warning: where the other has an extreme opening position, negotiators must beware of falling into the anchor and adjustment trap themselves; will not concede on a major issue. One tactic positional negotiators use is to concede first on an issue and thereby indirectly put pressure on the other party to concede on the next issue, which is a more significant one. This tactic is even more effective where the first concession appears to be greater than it actually is; make concessions reluctantly and with great difficulty. Positional negotiators will recognise that concessions are more powerful and helpful to their desired outcome when they make them reluctantly. When other negotiators have had to work hard to get a concession, they are likely to feel that they have had a psychological win and will be more willing to engage in further and more substantial concession-making behaviour. In other words, giving away concessions easily, even on unimportant issues, has little impact and may even send confusing signals. In our case, Martin

6.

hesitates, looks the phone over (which he may or may not have needed to do), comments about how much they both have invested in this negotiation and reluctantly adds another $10 to his offer, while signalling this is about as far as he can go; keep the other negotiator’s expectations low. Positional negotiators will hold out before giving a concession, make few concessions and make the amounts of the concessions small; [page 22]

7.

make concessions slowly and with long intervals. However, they may make a short rapid series of substantial concessions where deadlines are imminent and there is a good rapport and level of trust between the negotiators; 8. make ever-decreasing concessions. As the amount of concessions gets smaller, the signal sent by positional negotiators is that the position is getting firmer and closer to their final offer. This pattern is largely followed in our negotiation; 9. use conditional-linked bargaining where appropriate. Positional negotiators will usually link the making of one concession to a reciprocal concession by the other party. In our negotiation, Martin says ‘If you can meet me in the middle, $85, I’ll pay you in cash and buy you lunch’. Here, he is linking his own concession — raising his offer to $85, paying cash and buying lunch — to your agreement to make your own concession of accepting $85; 10. link concessions to justifications. This approach imbues positional negotiators with the aura of rationality. Notice in our negotiation how each concession was matched with an explanation so that changes in position did not appear arbitrary; 11. try not to share this information with the other side until a deadline is imminent. If the other negotiator is aware of a positional negotiator’s deadline, they may try to stall negotiations in order to induce deadline pressure (see also point 7 above);

12. say no from time to time in order to demonstrate reluctance to move on a particular issue, or that they are not desperate to reach an agreement. Timing is very important here. If positional negotiators say no too often and too early, the other negotiator may walk away; 13. do not take back or reverse concessions that they have made, as this will suggest that they do not stick to their word and are not reliable. The exception is where the concession is conditionally linked to another issue, offer or concession, or otherwise justified. These guidelines provide insights into the complexity of concessionmaking. Effective concession-making depends not only on you and how you intend to play the game — your goal, bottom line, and the size and number of concessions that you intend to make. It depends just as much on how the other negotiator plays the game and this is something that you cannot predict. For this reason, there is value in developing a number of different concessionmaking responses when preparing for negotiations, incorporating different possible responses from the other negotiator. There is also value in building your levels of awareness about yourself, your counterpart and the negotiation context as you prepare to negotiate. [page 23] In our case, you had a pretty good idea of what you thought and how you felt about the phone you were selling (awareness of self). You also had a good idea about your partner’s attitude toward the phone — ‘get rid of it’ — and about the price range you might expect from your research of Craigslist (awareness of context). Both of these dimensions of awareness influenced how you negotiated: how you set your initial price; how tough you were in your demands and concessions; even how motivated you were to sell the phone in the first place. What you may not have known is that our buyer, Martin Cooper, just might be one and the same Martin Cooper who was the inventor of the mobile phone back in 1973 (awareness of other). Consider how this information might have changed everything about your approach to the negotiation — and the lunch that followed!

Styles and tactics: positional negotiation 2.17 Now that we have discussed how positional negotiators set parameters and make concessions, we will have a closer look at the bargaining style which positional negotiators gravitate towards, and the tactics that they use; specifically, we will look at positional negotiation tactics generally. (In Chapter 10, we explore hardball tactics or what are sometimes referred to as dirty tactics.)

Styles 2.18 As indicated in Chapter 1, styles refer to behaviour bundles. In the context of negotiation, behaviour bundles can be described as a bundle or a set of behaviours that are typically exhibited together and represent a dominant style of negotiating. Positional negotiators are usually associated with behaviour bundles that are predominantly competitive, hence their negotiating style is referred to as competitive. Conversely, interest-based negotiators tend to use a cooperative style, as shown in Chapter 3. The following characteristics are indicative of a competitive style of negotiating:6 Win/lose paradigm. The fundamental assumption made by positional negotiators is that if they are to win the negotiation, it necessarily follows that the other party must lose. This way of thinking permeates the way that positional negotiators behave. Communication is impaired. Negotiators seek to control the flow of information on the basis that information is power, and the more power they have, the better they will be able to negotiate. Negotiators may withhold information that is useful for the other party. In addition, they may distort or generalise information in such a way as to mislead the other side or skew their perceptions of what is possible. [page 24] Obstructiveness and lack of helpfulness. Positional negotiators seek to win at the expense of the other party, thus they do not seek to be helpful to

the other party. In some cases, they may even be obstructive in their behaviour; for example, by not responding to correspondence within a reasonable time, not turning up to scheduled meetings, or sending a representative with limited negotiation authority. This type of behaviour reduces confidence in the negotiation process. In addition, it encourages a negative attitude not only towards the substantive content of the negotiation, but also towards the other negotiator. This type of behaviour does not promote relationship or trust-building, which is particularly useful in transactional negotiations. It also tends to be focused on the past and seeks to blame the other party when addressing ongoing disputes. As a result, negotiators are less likely to perceive the positive aspects of the negotiation. The parties to the process are unable to divide their work. Negotiators compete with each other about who does what and can end up duplicating one another’s tasks in their competitive mode. In addition, they tend to check what the other is doing continuously. Where various interests and issues are bundled into one global position from which concessions are made, it can be a challenge to separate the tasks of preparing for, and conducting, the negotiation. This becomes obvious in team negotiations where role definition is often ambiguous.7 Repeated experience of disagreement and critical rejection. Negotiators tend to be highly critical of the other party’s position and proposals, which leads to reduced confidence in themselves, the other party and the negotiation process. This behaviour also feeds a climate of negativity, referred to above. Conflicting parties seek to enhance their own power. As indicated above, power is viewed as something to have and to continue to increase by reducing the other party’s power. Negotiators view power held by others as a threat to themselves.

Tactics 2.19 We discuss more about tactics in the following chapters, but here, in a snapshot, you can see some of the positional negotiator’s favourite tactics, which include: making extreme opening offers — soft goal orientated (this is discussed

further in Chapter 4); disputing each other’s information and legal advice; [page 25] claim and counter-claim sequence; implied blaming — ‘wasted our time’/‘should have know the risk’; framing offers as ‘walk away money’, or money ‘to get the deal done’ to save face; playing cards close to the chest — neither party revealing too much information; and splitting-the-difference offers — Martin’s final offer was to ‘split the difference’ at $85 (if you don’t count the cost of lunch). Another important tactic that successful positional negotiators use is anchoring, which means anchoring yourself to your goal rather than to your bottom line. Many of us make the mistake of focusing on our bottom line and not going beyond it in negotiations. It is a risk-averse attitude, and, while we may end up with an outcome above our bottom line, we seldom do as well as we could have had we set our goal as the anchor in the negotiations. In our case, your partner was, literally, willing to give the phone away. That may have influenced a host of factors, including the initial list price, the size and number of concessions, and what we considered a ‘good’ final deal.

Opportunities and risks of positional negotiation 2.20 There are opportunities and risks associated with positional negotiation. Before electing a negotiation strategy, think carefully about the opportunities it offers and the risks it poses in your situation. One of the ideas underpinning this book is that real-life negotiations are generally a combination of positional and interest-based strategies. Therefore, positional

strategies may be useful in particular phases of the negotiation or in relation to certain issues. These matters are discussed further in Chapter 4.

Opportunities 2.21 The opportunities that a positional strategy can offer negotiators are as follows: Generally, positional negotiation is less time-consuming than interest-based negotiation. Positional negotiation can be conducted with less preparation than interestbased negotiation. Once you have identified your various positions and developed alternative concession-making scenarios, you are ready to go. Positional negotiation may offer acceptable short- to medium-term solutions. [page 26] Positional negotiation can be useful in one-off situations where the parties do not envisage an ongoing relationship of any sort. Where the underlying interests of the parties are conflicting, positional bargaining may prevent broadening the conflict between the parties. Here Lax and Sebenius provide the example of two nations in dispute over water rights.8 These two nations also have conflicting interests in relation to a range of other issues, including immigration, trade, religion and politics. Discussing these other interests would open up a ‘Pandora’s Box’ of conflicting interests and issues, which, in turn, would likely escalate and further entrench the dispute about water rights.

Risks 2.22 However, there are also risks associated with positional bargaining, which are summarised as follows: Where parties begin with, and become entrenched in, positional

negotiation, it is more difficult to switch to interest-based bargaining. This is because the relationship factor usually has been neglected and a sudden change to a relationship-focused strategy may be met with mistrust. Even where positional negotiation results in a win for one negotiator, it can trigger anger, resentment, humiliation or other negative emotions in the losing negotiator. This may, in turn, result in non-compliance with the negotiated agreement or a revenge action on the winning negotiator. Challenges in the implementation of a negotiated agreement — such as problems with delivery of goods within an agreed time frame — may be time-consuming and expensive to manage where negotiators have failed to develop and maintain a good working relationship.

Summary 2.23 In this chapter, we have introduced you to positional negotiation. We explained how this strategy to negotiation involves the parties focusing on their respective positions and negotiating using a series of concession-making tactics. We explored the differences between positional, distributive and adversarial negotiation, and showed how these terms are similar in that they all focus on a zero-sum game but differ slightly in their orientation. For instance, positional negotiation emphasises linear concession-making, in [page 27] which parties move from opening positions in ever-decreasing increments toward compromise; distributive negotiation is characterised by the assumption that the parties are negotiating over a finite fixed pie resource; while adversarial negotiation involves fighting over the legal remedies that might be available from a court order. Next, we looked at how positional negotiators set the parameters of negotiations by focusing on positions, goals, bottom lines and zones of agreement, and how negotiators using a positional strategy do not tend to move outside these boundaries of a negotiation. Similarly, we showed how

positional negotiators generally engage in a process of concession-making, where they expect to end their negotiations with an agreement based on a progression of incremental concessions. We illustrated this with an example of a typical positional negotiation between two joint venture companies. We then discussed the general competitive style and tactics of a positional negotiator, and finished with an exploration of the opportunities and risks involved in using this strategy. We described how positional strategies might be useful in particular steps of the negotiation or in relation to certain issues, but that, as an overall approach, it poses the danger of escalating negative emotions orientated towards ineffective agreements. Finally, we considered the value of reflexive practice. Through our phone sale example, we considered ways in which awareness of self, other and context informs how we prepare for and enact a positional negotiation.

Key negotiating points 2.24

The key negotiating points covered in this chapter are listed below:

Positional negotiation is a useful strategy. Although positional negotiation has a controversial reputation and there are some risks involved in using this strategy, there is considerable use in being able to be a good positional negotiator, provided that it is not the sole strategy that you employ in negotiations. Zero sum and fixed pie. Using an inflexible positional strategy exclusively will most likely ensure that you play a zero-sum game, and although you might win sometimes, you can also lose, and lose quite badly. It will also result in the negotiators dividing up a fixed pie when (as we show in the next chapter) employing different strategies can help to expand the pie and create more value in the negotiations. Think about how you can use positional strategies for particular parts of the negotiation where it is most effective. Bottom lines, expectations, goals and zones of agreement. Although useful for keeping yourself in check and keeping your mind on the ultimate goal of the negotiation, setting the parameters of the negotiation in accord with bottom lines, zones of agreement and expectations can reduce the potential of the negotiation. Negotiators [page 28] need to be careful to pay attention to the relationship aspects of the negotiation and the longterm benefits that might be available. Think carefully about the opportunities and the risks. Before electing a negotiation strategy, and in particular a positional strategy, negotiators need to think carefully about the opportunities it offers and the risks it poses in the particular situation. While short-term gains are available and you can implement a positional strategy with minimal preparation, this may

mean that you miss out on good-quality creative solutions. Knowing at which times of the negotiation to employ a positional strategy and when to try something different requires considerable skill — skills which we introduce you to in the following chapters.

___________________________ 1. 2.

3. 4.

This case illustration is taken from The Negotiation Experts and is available at (viewed 4 May 2015). R 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 Ohio State Journal on Dispute Resolution 231. See G R Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable People, Penguin, New York, 1999, at 25. The list is drawn from the work of D Hendon, M Roy and Z Ahmed, ‘Negotiation Concession Patterns: A Multi-Country, Multi-Period Study’ (2003) American Business Review 75 at 80–1.

5. 6.

See note 3 above, at 159–60. See also Chapter 10 on the anchoring trap. Based on the work of Morton Deutsch. See M Deutsch, ‘Social Psychology’s Contributions to the Study of Conflict Resolution’ (2002) 18(4) Negotiation Journal 307 at 312.

7. 8.

On team negotiations, see Chapter 10. D Lax and J Sebenius, ‘Interests: The Measure of Negotiation’ in J Breslin and J Rubin (eds), Negotiation Theory and Practice, Program on Negotiation, Harvard Law School, Cambridge, 1991, 161 at 165.

[page 29]

CHAPTER

3

Interest-based negotiation Introduction Interests, alternatives, options and independent criteria Style and tactics of interest-based negotiation Opportunities and risks of interest-based negotiation Summary

Objectives of this chapter Examine the central elements of the interest-based negotiation strategy Explore the styles and tactics of interest-based negotiation Consider the opportunities and risks involved in using interest-based negotiation

Introduction 3.1 Interest-based negotiation is a simple concept.1 It involves exploring and satisfying interests rather than arguing and competing over positions. As already discussed, a position is what a person says he or she wants — a demand. The interest is why the person wants it — the need, desire, fears or concerns behind the demand. Where positional negotiation starts with negotiators

[page 30] negotiating over their demands, interest-based negotiation involves exploring what the person’s interests are and then looking for different ways to satisfy them. Where the goal of positional negotiation is most often to achieve one’s own solution, the goal of interest-based negotiation is to create a solution that meets the interests of all of the negotiators. To illustrate interest-based negotiation, consider the classic orange story. Two sisters are in the kitchen. There is one orange in the fridge and both sisters want it. They decide to cut the orange in half. One sister takes half of the orange and grates the rind into a cake she is making. The other sister takes the other half and squeezes it into a juice. Both sisters made a demand: ‘I want the orange’. They then arrived at a solution: ‘Let’s cut it in half’. As a result, they both got half of what they wanted. Instead, they could have asked each other what they needed the orange for, then together they could have looked for different ways to satisfy those needs. For instance, upon learning of each other’s interests, the first sister could have grated the rind of the whole orange into her cake and then passed the orange to the other, who could have then had the juice from the whole orange. They could have both enjoyed more of the orange, or the proverbial ‘pie’ so to speak, if they had simply discussed their interests. Simple? Yes, but this move from a positional to interest-based negotiation often requires a complete shift in thinking. Further, many people can be sceptical about how it might work in more complex examples. Yet, research shows that interest-based negotiation can work, and work well. Interest-based negotiations have assisted in reaching peaceful accords in international crises and in many personal and business relationships. Evidence shows that, in most situations, an interest-based strategy produces more effective outcomes and more efficiently utilises available resources than does a positional strategy.2 Here is another illustration. In the 1990s, the La Mesa/Spring Valley School District and the La Mesa/Spring Valley Teachers’ Association in the United States engaged in interest-based bargaining to address a stalemate between teachers and the District.3 The teachers were arguing for a 3 per cent pay raise. The District maintained that the budget did not allow for that large a

pay increase. During the interest-based negotiation process, the negotiators began to trust one another and probed more deeply into each [page 31] other’s positions. Finally, negotiators uncovered the cause of the 3 per cent request: teachers were having trouble paying for their child care. Discussion and brainstorming produced the final contract: a 2 per cent raise for all district personnel, not just teachers, and a commitment from the District to fund a child care co-op. So, how does one conduct interest-based negotiation? It starts with an exploration of interests. Negotiators then think about different ways to meet these interests and generate options. A crucial element is that rather than focus on bottom lines and goals, negotiators look to their alternatives as a guide to know the value of the negotiation and use independent criteria to ensure that the negotiations are fair. Essentially, by using skills discussed in later chapters, negotiators aim to create an atmosphere of trust and understanding and work together to get more of their interests met, as well as meeting the other negotiator’s interests. Switching mindsets from thinking about positions to thinking about interests, and thinking about fair ways to satisfy interests, can result in an entirely different negotiation outcome.

Interests, alternatives, options and independent criteria Identifying interests 3.2 Being able to identify interests is the cornerstone of interest-based negotiation. A successful negotiation depends on the identification, exploration and satisfaction, as far as possible, of all the negotiators’ interests, not just their positions. Usually there are multiple interests motivating people to take a particular position and often these are overlapping and

interconnected. For instance, when someone is thinking of asking for a salary increase, there can be many interests at play. The person may: need to pay for child care, as in the Le Mesa/Spring Valley example above; need to receive more money to finance the household; need to feel valued for the hard work that s/he is doing; want to be paid on a par with other people in the workplace; and/or want to be assured that s/he is on the right career track. There can be many interests underlying the desire for a salary increase. It is often a mistake to think that there is only one motivating interest for a negotiator, such as money. Unidentified interests can result in an intractable dispute, a dispute that is resolved but only partially, or a dispute that is settled but leaves interests unmet and underlying conflict simmering. Therefore, identifying all the interests and the priority of those interests is key [page 32] To assist in identifying interests, theorists have recognised that there are different types of interests, including substantive, procedural, relational or psychological, and principled interests:4 Substantive interests refer to interests in the content of the negotiation; for instance, the goods, services, rights, money, etc. Procedural interests refer to interests in how the negotiation process is conducted; for instance, where and the way in which the negotiation takes place and what particular issues are discussed. Relational or psychological interests refer to the relationship aspects of the negotiation; for instance, whether there is trust, and a polite, dignified and respectful relationship during the negotiation. Principled interests refer to a sense of what is the right thing to do in the particular situation. Lax and Sebenius5 refer to it as a bundle of ethical, customary and cultural values held by the negotiators; for instance, it

might be a belief that people doing similar work should be paid in the same way, regardless of any other considerations. Different types of interests might be hard to identify, but it is important to recognise that there is usually more than one type of interest lying behind a position. There are also different priorities of interests. People’s priorities are not always the same and we often prioritise our interests in different ways, depending on our values and preferences, and on our thoughts and emotions. These priorities of interests mean that different types of interests can fall into different categories, depending on each negotiation. For instance, in any negotiation, there might be: mutual or shared interests, being those interests that all the negotiators share; for instance, in the 2005 negotiations between Queensland Health (a government department) and the Queensland Nurses Union, both sides shared interest in and commitment to maintaining a high quality public health system;6 complementary interests, being those interests where the negotiators have different interests but they can be satisfied by the same transaction; for instance, in the salary increase case, the employer [page 33] might want to motivate the employee to work harder, but the employee might want to be recognised for the hard work that s/he already does — the salary increase could satisfy both these interests even though they are fundamentally different; neutral interests, being those interests where it will not affect one negotiator if the interest is granted; for instance, if the employee agrees to take the salary increase as a lump sum payable, it will suit the employer, but will not affect the employee in any way — therefore, this is a neutral interest for the employee; and conflicting interests, being those interests where satisfying the interest for one will minimise the benefit to the other; for instance, if the only way

that the employer can grant a salary increase is to reduce the profit of the company.7 Identifying these categories of interests and understanding the nature of the difference between them will help the negotiators to set an agenda and structure the negotiation. This is a hallmark of reflective practice. However, negotiators need to recognise and remain open to the possibility that interests can change. This is a hallmark of reflexive practice. What a negotiator might care about one moment could change in the next or the priority of one’s interests might change based on new information or a change in the relationship. Furthermore, identifying interests is not always easy. People’s interests are often more opaque than their positions and negotiators do not often reveal their interests openly. Importantly, sometimes people are not even aware of what their real interests are. Interests can sometimes consist of deep-rooted human needs and fears, and, as a result, they can be inaccessible to the conscious state. Therefore, cultivating greater awareness of your, and your counterpart’s, interests and remaining open to the fluidity and changeability of interests is important. The complexity of this is illustrated in Figure 3.1, using the metaphor of a coral reef. Scanning the surface of the ocean, negotiators may see the glimpses of a coral reef but can’t know what lies beneath the ocean unless they explore the underwater terrain. Once underwater, negotiators may discover all manner of things: different kinds of fish, other sea creatures and plant life living in amongst an expansive system of coral reefs. Also, depending on the tides and ebb and flow of the water, negotiators might see things in different ways, or what they see might change. In a similar way, negotiators need to actively explore interests — their own and the other negotiator’s. Negotiators need to ask questions to dig deeper into their own [page 34] and the other’s needs, desires, fears and concerns and help surface all the interests, including those that are not immediately apparent.

Figure 3.1:

The Constructive Negotiator Does More Than Scratch the Surface — The Coral Reef Model

Knowing your walk-away alternatives 3.3 While identifying interests is a crucial element of interest-based negotiating, so too is knowing your walk-away alternatives. Rather than focusing on bottom lines and goals (as positional negotiators are apt to do), successful interest-based negotiators will look to their walk-away alternatives to ensure that they are generating quality outcomes. Alternatives are those solutions that are available to the negotiator outside of the particular negotiation at hand. They are remedies that negotiators can independently pursue without the need to negotiate. For instance, an alternative to negotiating a salary increase could be to accept a position at another workplace or to quit until a better job comes along. These solutions do not require a negotiation at all — they are alternatives to negotiation. Negotiators may have a number of alternatives open to them. Fisher, Ury and Patton8 suggest that negotiators focus on their best alternative to a negotiated agreement, which they call the BATNA. Fisher et al suggest that there is no reason to enter into negotiations unless negotiators think that they can do better than their best alternative. In other words, negotiators enter negotiations to add value to their BATNA and to get something better than what is available to them outside the negotiation. Negotiators must not get complacent with their BATNA. They must make sure that it is really the best walk-away alternative that they have. For this reason, negotiators should also consider:

[page 35] the most likely alternative to a negotiated agreement (MLATNA); and the worst alternative to a negotiated agreement (WATNA). 3.4 Using walk-away alternatives as a guide to the success, or not, of a negotiation is a more flexible and interest-orientated way to negotiate than using bottom lines and goals. Interest-based negotiators will look for options that ‘expand the pie’ in order to do better than their best alternative. By focusing on a range of alternatives, rather than on rigid goals or bottom lines, interest-based negotiators stay nimble and adaptable to creative and optimal option generation.

Generating options 3.5 Identifying interests and knowing your alternatives are two devices for the interest-based negotiator. Another important tool is generating options for meeting these interests and for resolving any outstanding issues. In Chapter 4, we will demonstrate the ways in which negotiators go about developing options. Here we provide some brief observations about options and option generation: Options are not solutions. They are choices for solutions. In the orange example (at 3.1), the sisters did not treat cutting the orange in half as an option; they treated it as the solution. One sister grating the rind while the orange was whole and then giving the orange to the other sister to squeeze for the juice was an option. One sister having the whole orange while the other drove to the market to buy a bag of oranges for juice was another option. And so on. Options are not the solution to a problem or interest — they are possible solutions. There is usually more than one option available. Going with the obvious option or solution might be appropriate in simple negotiations, but there will frequently be better solutions available. In his work on lateral thinking, de Bono raised our awareness to the idea that there is usually more than one solution to a problem.9 Looking for all possible options first (before

negotiators evaluate the options) is a central element of the interest-based negotiation process, and keeping in mind that there is likely to be more than one option available is a core tenet. More options create better solutions. Looking for options is the creative part of the negotiation process, and the more options the better. Research shows that by generating a large number of ideas, [page 36] negotiators can expand the resources available to them (‘expand the pie’) and this, in turn, can increase the probability of developing better-quality solutions.10 Crazy options are often not that crazy. Sometimes a seemingly crazy idea can carry the day. At the very least, crazy ideas can spark the imagination toward looking for a more workable idea, or a package of ideas. Options help generate mutual gains. Crazy ideas and option generation can also assist in unearthing hidden opportunities for generating mutual gains. While exploring options, negotiators might find more of what they can do for each other in terms of meeting interests, and might identify more shared interests than they had previously considered. The creative and collaborative nature of option generation can create dramatic shifts in thinking and can result in the negotiators finding unique ways to achieve their goals. Generate before evaluating. Creativity flourishes when negotiators separate option generation from option evaluation. Evaluating is about assessing the appropriateness and feasibility of an option and involves a far more linear and restrictive process. If negotiators spend time evaluating options that they ultimately reject, then not only have they wasted time but they have also wasted an opportunity to change the thinking or discover mutual gains. People agree more readily to a solution that they have been involved in shaping. Another key to successful interest-based negotiations involves understanding that how successful an option will be in the future is

how committed the negotiators feel towards it. The more negotiators have been involved in the designing of a solution, then the more they are likely to feel committed to that solution and to keep up their end of the bargain. This is why it is important not to jump to early solutions. As well as not providing the best solution, early options are also unlikely to elicit the required level of commitment from the negotiators. The more the merrier. It is much easier to create options when brainstorming with other people, rather than thinking of options alone. Other people often bring with them new perspectives, and sometimes outsiders to the negotiation can suggest options and possibilities that the negotiators have not considered themselves. Option generation is the fun part of negotiating, but it also involves hard work. It is often difficult working with the disorder [page 37] of option generation and often difficult to resist the temptation to jump to agreeing to easy solutions, or evaluating or selecting options too early. The option generation phase can be productive but it can also be tiring. Therefore, it might be wise, beforehand, to agree to take a flexible and committed approach to option generation, and to be aware that this might take time. It might take time, but done properly option generation can lead to successful outcomes. Here is a real-life example of creative problem-solving in negotiation. It involved two US energy producers, Southern California Edison Co and Bonneville Power Administration, who created a joint partnership beneficial to both parties in terms of efficient energy production and which addressed environmental concerns of their constituencies and other stakeholders. In 1991, the two parties conceived of a way to help the Columbia River salmon in the Pacific Northwest [of the United States], while improving the polluted air of southern California […] During the summer months, Bonneville Power would increase the flow of water into the Columbia River. This would automatically increase the amount of hydroelectric power generated by California Edison. The increased flow of water allowed the young salmon to swim through the

channels more easily. It also increased their survival rate because a weaker current made them more prey to becoming lost or more vulnerable to being devoured by predators. Later, in the fall and winter months, California Edison returned the power back to Bonneville Power Administration that it had borrowed during the preceding summer months. As a result, Bonneville had very little need to run its coal-fired and oil plants during the summer months. This was a truly creative agreement. The exchange of power, roughly equivalent to about 100,000 households, improved the migration of the salmon, thereby increasing their survival rates and expanding the fish population. Additionally, air pollution was reduced significantly as Bonneville didn’t have to resort to smog producing plants during the stifling and oft smoggy summer months that normally occur. What kind of impact? It’s been estimated the saving was about equivalent to taking about 5,000 cars off the highways. The best part of all was that absolutely no money exchanged hands in the entire process.11

Independent criteria 3.6 While the option generation phase is creative and, given the right cooperative atmosphere can be a motivating and positive experience, it is not always straightforward. Negotiators can still feel that the other person [page 38] might be trying to manipulate them with some option suggestions and there can be a certain level of distrust. After all, the negotiators are negotiating to get their own interests met and a person is unlikely to suggest an option that will be to his or her detriment. Therefore, to avoid doubt about the advantage of any particular option and to preserve all workable ones, Fisher et al suggest that negotiators use objective or independent criteria to judge the fairness of options.12 Independent criteria refer to objective and independent points of reference that the negotiators can use when making their decisions about a particular option or solution. Independent criteria can be industry standards, benchmarks, precedents, judicial decisions, societal norms or independent expert opinions, and are a way of saying that ‘this option is fair not just because I say it is fair, but also because the [independent criteria] says it is’. Independent criteria can be a powerful persuasive tool and can be most useful when attempting to resolve competing interests. For instance, in the

salary increase negotiation, independent criteria to which the employee could refer, in order to persuade the employer that the request is genuine, could be: evidence of a similar job in another workplace where the salary is 5 per cent above what the employee is currently receiving; evidence that the employee hasn’t received a pay rise in three years; or, if one is available, an industry standard. Similarly, the employer could point towards the current economic figures that show the recent profit downturn in the company; or an industry standard; or comparable pay scales in other workplaces. While appealing to independent criteria does not necessarily resolve the competing interests, it does assist the negotiators to assess the fairness and legitimacy of the available options. In this way, not only does it ensure that the negotiators are ‘working off the same page’ when it comes to discussing the available options, but it also helps to establish a positive and cooperative environment for the negotiation.

Style and tactics of interest-based negotiation Styles 3.7 The style of the negotiator will also be helpful in establishing a cooperative climate for negotiating. As discussed in the positional negotiation section above, there are broadly two predominant styles of negotiating: cooperative and competitive. The style most commonly associated with the interest-based strategy is the cooperative style. [page 39] 3.8 Deutsch sets out some common characteristics of the cooperative style of negotiating.13 These include: Effective communication. Negotiators are attentive to one another, accepting of the ideas of the other negotiator, and influenced by them. They have fewer difficulties in communicating with or understanding others. Friendliness, helpfulness and less obstructiveness. Negotiators show

appreciation and respect for others’ contributions. They value winning trust from the other negotiator and make constructive efforts to shape the negotiation. Coordination of effort. The negotiators share the division of labour, stay orientated to the task, and work to establish an environment of order and productivity. Sense of agreement and acceptance of the ideas of others. The negotiators share a sense of agreement and understanding with each other, and feel confident in their own ideas and the value that the other negotiator attaches to those ideas. The negotiators accept the ideas of others. Willingness to enhance the other’s power. The negotiators are willing to enhance each other’s ‘power’ — for instance, their knowledge, skills and/or resources — in order to increase the value in the negotiation. Framing conflicting interests as a mutual problem to be solved by collaborative effort. This style of negotiator prefers to use collaborative behaviours and to see conflicting interests as a mutual problem for the negotiators to solve together. This style facilitates understanding of each other’s interests and the search for fair options that are responsive to the needs of all. Deutsch notes that a cooperative style of negotiating tends to lead to greater productivity, better relationships and greater psychological health and selfesteem for the negotiators, as well as to a more constructive and successful negotiation. In contrast, the competitive process may have the opposite effect. Some competitive negotiators tend to adopt the idea that only one person can ‘win’, and think that they must impose their own solution on the other. This can turn the negotiation into a power struggle, which can then lead to destructive relationships, poor mental health and unfulfilling negotiations for the negotiators. The style of negotiating will often derive from a predisposition to a particular style of interpersonal behaviour. We [page 40] discuss more about personality and style differences in Chapter 7 and

demonstrate methods of managing competitive negotiators in Chapter 9. The material above provides a ‘snapshot’ of the most common negotiating style of interest-based negotiators. Naturally, given the multidimensional nature of negotiation, interest-based negotiators may move between cooperative and competitive styles. Similarly, positional negotiators might also move between the two styles. However, in an interest-based negotiation, negotiators tend to demonstrate more of the cooperative style, and in a positional negotiation, negotiators tend to demonstrate more of the competitive style.

Tactics 3.9 While the tactics (structured behaviours) of positional negotiators are usually competitive and compromising in nature, not surprisingly those of interest-based negotiators are usually cooperative and collaborative. Interestbased negotiators will use cooperative and collaborative tactics to promote problem-solving and mutual gain, while positional negotiators might also use these — but to achieve greater individual gain. Skilful negotiators understand, however, that the negotiation process involves a continuous series of choices as to the use of tactics. They also understand that an appreciation of the complete range of tactics available can work to strengthen a negotiator’s ability to make wise decisions. The broad range of tactics which make up the cooperative style and tend to best characterise the interest-based negotiation strategy include: Being flexible. Flexibility keeps a negotiation moving, and generally moving forward. Flexible negotiators will, among other things: – indicate a willingness to change if a way can be found to bridge both negotiators’ interests; – be open to re-examining their own interests if they appear to be clearly unacceptable to the other negotiator; and – signal that, although some interests are fundamental to them, this doesn’t mean that the other’s interests can’t be satisfied as well. Framing the issues in negotiation in neutral and mutual terms. Keeping the problem-solving neutral and mutual is another tactic that can

assist in progressing a negotiation. This involves talking about the problems or issues of the negotiation in as neutral (nonpartisan) and mutual (common to both negotiators) terms as possible. For instance, rather than the employee speaking about the negotiation as a negotiation over a ‘salary increase’, the employee could frame it in terms of ‘budget’. Budget is a neutral word that does not favour one negotiator over the other. [page 41] Recent research into the effectiveness of the interest-based tactic of reframing showed that negotiators who use this technique enjoyed more successful negotiations than those who did not have the opportunity to frame the negotiation into neutral terms.14 Sharing information. The research also shows that when negotiators use information-sharing tactics to understand all the interests of the other party then negotiations proceed more efficiently.15 Knowing when and when not to share information, however, requires a certain level of skill — also, knowing what type of information to share requires skill. The negotiator needs to be confident that the shared information will lead to better outcomes and that the other negotiator(s) will not exploit the information for individual gain. We will explore the skills involved in using the information-sharing tactic in Chapter 4. Describing interests. As with information-sharing, knowing when and how to describe one’s interests is a skilful exercise. When done well, this tactic is one that can lead to a benefit for all. Negotiators who describe their own interests fully often find that it encourages the other negotiators to follow suit, and once interests are acknowledged and understood, the movement toward finding mutually beneficial solutions can become clearer and easier. Seeking out information. As well as sharing information, actively seeking out information about interests and, in particular, about shared or complementary interests, is another tactic that adds to the interest-based approach to negotiation. In effect, it is a tactic that is central to creating

successful integrative agreements. Seeking out information leads to insights about a negotiator’s interests and priorities — in so doing, negotiators may find shared or complementary interests, bringing an awareness that they might be working towards a shared or common goal. This was the case in the 2005 negotiations between the Queensland Nurses Union (QNU) and Queensland Health (QH), referred to previously in this chapter. The subsequent set of enterprise bargaining in 2008 also followed the interestbased negotiation methodology. Notwithstanding that the majority of QH individuals taking part were new to the process, the parties clearly articulated a shared vision for nursing in the Queensland public sector and worked towards achieving it. This type of shared awareness activates negotiators [page 42] to use cooperative tactics, rather than to work independently or competitively against each other. Educating about and modelling interest-based negotiation. An interest-based negotiator will model interest-based behaviours to educate the other negotiator about the benefits of the cooperative style and the interestbased approach. By modelling interest-based negotiation, the negotiator will demonstrate the effectiveness of the approach. Such modelling and educating is particularly important when other negotiators doubt the value of the interest-based approach. It can be especially effective with inexperienced negotiators who are using default positional strategies because they don’t know what other approach to take. Generating options that will meet the needs of all negotiators. Often negotiators raise options that advantage one negotiator over the other. A skilful interest-based negotiator will redefine, recast or reframe these onesided options into a more positive or mutual light. Generating options that will meet the needs of all the negotiators and not significantly advantage one negotiator over the other is a tactic that will help lead to greater cooperation and collaboration between the negotiators. The idea of a solution that can incorporate everyone’s needs is invariably a very attractive idea. Don’t misunderstand this though. Interest-based negotiators will not put the other

negotiators’ interests above their own. They will be working hard to satisfy their interests very well, the other negotiators’ reasonably well, and any other stakeholders’ interests adequately. In other words, negotiators will need to be able to offer the other negotiator something that they can live with and be satisfied with. Suspending judgment. A cooperative negotiator will be careful to suspend their judgment of ideas and options until everyone has had a chance to talk about all the issues that they need to cover. Negotiators who ensure that all the negotiators’ issues, interests and options are on the table before moving to evaluating and selecting solutions will assist the negotiations to flow smoothly and collaboratively. People appreciate the space to converse without judgment and, as well as assisting in producing better solutions, this tactic will also help to create trust. Creating trust. Creating trust is often a challenge in a negotiation and can be dependent on many things, including the negotiator’s interpersonal skills and reputation and previous negotiating experiences. For example, negotiations between the QNU and QH had traditionally been characterised by positional tactics and distrust. [page 43] It called for much courage on the part of the negotiators and their constituencies to create a shift that allowed a climate of trust to develop. Creating trust is an essential part of the interest-based negotiator’s tool kit. Part of the reason for this is that an atmosphere of trust creates the climate for cooperative behaviours, which, in turn, cycle back to the creation of trust and mutual gains. Establishing a good relationship with the other negotiator/s. Understanding the importance of relationships is also fundamental. Tactics that an interest-based negotiator will use to establish a good relationship include building a rapport, and demonstrating to the other that they have more to gain by working together than by working separately. The negotiator will also emphasise the continued benefits of having a good

relationship long after the negotiation is completed. Again the QNU and QH negotiations are illustrative. The 2005 negotiations established good relationships and a level of trust. The subsequent set of enterprise bargaining in 2008 also followed the interest-based negotiation methodology. According to Todhunter,16 they ‘built on the good faith that had characterised the previous negotiations’. Communicating clearly and accurately. Effective communication is a key to creating successful interest-based negotiations, and it enhances and helps to build stronger relationships. First, stating the negotiation issues as clearly and succinctly as possible is a helpful tactic to avoid having secondary issues cloud the negotiation. Second, sharing information in a manner that avoids generalities and ambiguities is important to ensure that the other negotiator is not left with any misunderstandings or misconceptions. Finally, clear communication will help interest-based negotiators navigate the negotiation territory and ensure that they have explored all the relevant issues, interests, options and relationships. Clear and accurate communication is crucial and we devote some time to this aspect of negotiation in the following chapters. Although the tactics described above tend to align with the interest-based approach, the consequence of using these particular tactics may not always be interest-based negotiation — much will depend on how the negotiator executes the particular tactics and when the negotiator chooses to use them. As indicated previously, negotiators often oscillate between the use of cooperative and competitive tactics, and tactics from both styles can serve either interest-based or positional functions. [page 44] The challenge for the negotiator is in choosing tactics wisely and finding the balance between meeting one’s own interests and searching for mutual gains.

Opportunities and risks of interest-based negotiation

3.10 Achieving this balance is the ‘art’ of negotiation, and it involves understanding what underpins both the positional and interest-based strategies. It also involves understanding the opportunities available and the risks involved in using each strategy. We have looked at the opportunities and risks of positional negotiation, and we will now do the same for the interest-based model.

Opportunities 3.11 The opportunities involved in taking an interest-based approach to negotiation include: more creative and flexible solutions; better relationships; meeting the emotional/relational and procedural interests of the negotiators, not just their substantive interests; mutual gains; expanding the resources under negotiation — ‘creating value’; building respect and trust; more satisfying process and a sense of well-being; a higher degree of commitment to make agreements work; future benefits from establishing a model of cooperative behaviour and problem-solving; and fairer, more satisfying and sustainable agreements. The opportunities for negotiators who adopt an interest-based strategy are considerable, but, as we have discussed, there are still some doubts about whether interest-based negotiation will be successful in all instances. A negotiator must be prepared for a competitive, positional counterpart and must not assume that an interest-based approach will be the best approach to adopt in all circumstances. This is why we advocate an understanding of the dynamics and processes of both strategies. With a comprehensive appreciation of the best and worst of both strategies, negotiators can maximise their ability to make wise decisions.

[page 45]

Risks 3.12 The interest-based model of negotiation dates back to Mary ParkerFollet’s work in the early part of the 20th century and was popularised in the 1980s by the Harvard Program on Negotiation. However, despite its popularity in the western world, over the years many people have found the interest-based model to be incomplete. The various criticisms have included the following: Interest-based negotiation does not work unless all the negotiators are engaged in it. Interest-based negotiators give away too much information and, in the event of no agreement, this can be damaging for them in terms of power balances and strategies for subsequent negotiations, or for litigation. Experienced positional bargainers can exploit the interest-based negotiator’s willingness to share information. In focusing on alternatives and not goals, interest-based negotiators set their sights too low and miss out on substantial gains. Interest-based negotiation places emphasis on process and responding to the interests of the negotiators, and is therefore time-consuming and complex. Interest-based negotiation requires substantial skill to sustain a cooperative, productive negotiation in the face of considerable conflict and distrust. Negotiators cannot always see that a situation has the potential for mutual gain. To a certain extent, these criticisms rest on the risks involved in information disclosure and the difficulties of motivating the negotiators to take an interestbased approach — we will discuss ways of dealing with these issues in later chapters. However, in some circumstances, negotiators will find it difficult to overcome these issues, and the costs of interest-based negotiation will mean that it is not the strategy of choice. In other circumstances, when the

negotiation environment does enable interest-based negotiation, the opportunities can far outweigh the costs. We conclude with an illustration from research. In a 2005 case study by McKersie et al17 into contract negotiations between Kaiser Permanente and the Coalition of Kaiser Permanente Unions, the researchers found that [page 46] interest-based negotiation was most effective and most extensively used on issues where the two parties shared common concerns. In contrast, positional negotiation proved to be more effective when the parties’ interests were in deepest conflict. In their analysis of the study, McKersie et al posited the view that the most effective negotiation approach was a mix of both positional and interest-based negotiation that drew on the best features of both approaches. This mix of strategies is what we refer to as constructive negotiation.

Summary 3.13 We opened this chapter with a simple illustration of the differences between interest-based and positional negotiation. Positional negotiation involves arguing over positions and solutions, while interest-based negotiation focuses on exploring interests and finding mutual ways to satisfy them. We then explored the fundamental elements of interest-based negotiation: interests, options, walk-away alternatives and independent criteria. Interests are the negotiators’ needs, desires, fears and concerns, and can include substantive, procedural, psychological and principle interests. Negotiators usually have shared, complementary, neutral or competing interests, and usually there are many identified and unidentified interests motivating the parties to a negotiation. Options are possible solutions or outcomes to the negotiation, and option generation is the fun and creative part of negotiation. The general guidelines for option generation are ‘generate before evaluate’ and the ‘more the merrier’. Alternatives are alternative solutions that negotiators can achieve independently and without the need to negotiate, while independent criteria refer to objective or independent points

of reference that the negotiators can point to when persuading other negotiators as to the fairness of particular options. They can include expert opinions, standards, benchmarks, or precedents. Next, we looked at the styles and tactics that are most commonly aligned with the interest-based model of negotiation. These include the cooperative style and tactics of being flexible, and of sharing and seeking out information in a considered manner. Finally, we looked at the opportunities and risks involved in using an interest-based strategy and concluded that, although there are clear advantages to interest-based negotiation, it will not be suitable in all negotiations. The general theme, however, is that by raising awareness to the best and worst of both the positional and interest-based strategies this will help to equip the negotiator with the ability to learn how to build constructive and successful negotiations. 3.14 For ease of understanding, the key differences between positional and interest-based negotiation strategies, styles and tactics as outlined in Chapters 2 and 3 are illustrated in Table 3.1 below. [page 47] Table 3.1:

Differences Negotiation

Between

Positional

Positional negotiation Strategy

and

Interest-based

Interest-based negotiation

focus on outcome

focus on process

focus on positions/rights

focus on interests

limits discussion to own demands (limits areas of disclosure)

explores all negotiators’ interests (the whole negotiation territory)

argues for a position/demand

generates and develops options

evaluates and advocates for solutions

generates then evaluates

looks to achieve goals or avoid bottom lines

looks to add value to alternatives and do better than BATNA

emphasises own fairness criteria

uses independent criteria

looks for greatest individual gain

looks for mutual gains

Style

demand and make concessions

seeks creative solutions

goal is to impose own solution on other

goal is to create a solution to meet the needs of all negotiators

Competitive

Cooperative

impaired communication

effective communication

obstructiveness

friendly, helpful, less obstructive

divided effort

shared effort

sense of disagreement/rejection of ideas

sense of agreement/acceptance of ideas

enhance one’s own power

willingness to enhance other’s power

power struggle coercive

mutual problem-solving collaborative

Tactics

making extreme opening offers

being flexible

disputing each other’s information and legal advice

neutral and mutual framing

claim and counter-claim sequence

describing interests

sharing and seeking information generating options that meet the needs of all negotiators

implied blaming framing offers as ‘walk-away money’, or money ‘to get the deal done’ and save face

suspending judgment

‘playing cards close to the chest’

good relationship/good rapport

creating trust clear and accurate communication

splitting the difference offers

educating the other by modelling interest-based negotiation

[page 48] Table 3.1:

Differences Between Negotiation — cont’d

Positional

Positional negotiation Opportunities

can be conducted unilaterally

and

Interest-based

Interest-based negotiation creative and flexible solutions

stronger chance of winning (if other negotiator is not an effective positional negotiator)

builds better relationships

risk-averse and protects own interests

opportunity for mutual gain

simple and efficient good in situations of difficult communications, high conflict and distrust Risks

inhibits flexibility

potentially satisfies all types of interests ‘creates value’ establishes trust, respect and future cooperation fair, satisfying and sustainable agreements

relationships not central

needs commitment from all negotiators

only satisfies substantive goals if negotiators win

open to exploitation where there are power imbalances

focuses on individual gain

time-consuming and complex

‘claims value’

difficult in situations of conflict and distrust

short-term, one-off transactions that involve compromise unbalanced and unfulfilling agreements

Key negotiating points 3.15

The key negotiating points covered in this chapter are listed below:

Interest-based negotiation can work. Although there are some risks involved in using interest-based negotiation, given the right circumstances interest-based negotiation can work and work very well. Interests, alternatives, options, and independent criteria are key. Identifying and exploring the negotiators’ interests and finding mutual and fair ways to satisfy them using option generation, walkaway alternatives and independent criteria, are the core tenets of interestbased negotiation. Being flexible, cooperative and clear. Interest-based negotiation is characterised by cooperative actions, a commitment to clarity and the ability to be flexible. Information exchange can create opportunities and risks. Seeking and sharing information can create trust, help build relationships and lead to mutual and better-quality solutions. Sharing information can also lead to exploitation, power imbalance and one-sided solutions. Knowing when and when not to share requires an understanding of the underlying dynamics, opportunities, risks and skills involved in both interest-based and positional negotiation.

___________________________ 1.

Derived in part from R Fisher, W Ury and B Patton, Getting to Yes: Negotiating Agreement Without Giving In, 2nd ed, Penguin, New York, 1991.

2.

L Weingart, L Thompson, M Bazerman and J Carroll, The Israel–Egypt Accord, Apartheid and the Bougainville Peace Agreement cited in W Adair and J Brett, ‘The Negotiation Dance: Time, Culture, and Behavioral Sequences in Negotiation’ (2005) 16(1) Organization Science 33. This case illustration is taken from M Kalnin, ‘Can We Bargain — Amicably? A Primer on InterestBased Bargaining’, available at (viewed 5 May 2015).

3.

4.

5. 6.

7. 8. 9.

C Moore, The Mediation Process, 4th ed, Jossey-Bass, San Francisco, 2014; D Lax and J Sebenius, cited in R Lewicki, B Barry and D Saunders, Negotiation, 6th ed, McGraw-Hill, New York, 2010, at 80. D Lax and J Sebenius, The Manager as Negotiator: Bargaining for Cooperation and Competitive Gain, The Free Press, New York, 1986. See L Todhunter, ‘Innovation in Enterprise Bargaining: The Queensland Health and Queensland Nurses’ Union Experience’ (viewed 5 May 2015). N Spegel, B Rogers and R Buckley, Negotiation: Theory and Techniques, Butterworths, Sydney, 1998, at 27. See note 1 above. E de Bono, Serious Creativity: Using the Power of Lateral Thinking to Create New Ideas, HarperBusiness, New York, 1992.

10. G Shea, cited in Lewicki, Barry and Saunders, note 4 above, at 89. 11. This case illustration is reproduced from the website of The Negotiation Experts: (viewed 5 May 2015). 12. See note 1 above. 13. M Deutsch, ‘Social Psychology’s Contributions to the Study of Conflict Resolution’ (2002) 18(4) Negotiation Journal 307 at 311–12. 14. P Pasquier et al, ‘An Empirical Study of Interest-based Negotiation’ (2011) 22 Autonomous Agent and Multi-Agent Systems 249. 15. J K Butler, ‘Trust Expectations, Information Sharing, Climate of Trust, and Negotiation Effectiveness and Efficiency’ (1999) 24(2) Group Organization Management 217–38. 16. See note 6 above. 17. R B McKersie et al, ‘Bargaining Theory Meets Interest-based Negotiations: A Case Study’ (2008) 47(1) Industrial Relations: A Journal of Economy and Society 66.

[page 49]

CHAPTER

4

A constructive negotiation process Introduction What makes a negotiation successful? Constructive Negotiation Model Ten-step guide to constructive negotiation Summary

Objectives of this chapter Understand the negotiation process as an evolutionary process through four stages: relational positioning, exploring issues and interests, generating options and reaching solutions Consider the elements of a successful constructive negotiation Explore the Constructive Negotiation Model and the 10 steps that constitute the microprocesses of constructive negotiation Consider the tensions between the positional and interest-based strategies, and the competitive and cooperative styles that develop throughout the negotiation process Consider how successful constructive contradictory strategies, styles and skills

negotiations

involve

balancing

seemingly

Introduction 4.1

The previous chapters introduced positional and interest-based

negotiation. Now, the ultimate negotiator’s challenge — how to blend [page 50] and balance these two seemingly contradictory strategies of negotiation to develop a constructive approach. How to choose effectively from the range of styles, strategies, skills and tactics that are available; how to explore interests and search for mutual gains while protecting interests; how to share information without exposing vulnerability; and how to be strong on goals without becoming entrenched in positions. These are the quintessential negotiators’ dilemmas. In this chapter, we provide some advice that negotiators might want to consider when choosing the appropriate mix of style, strategy, skills and tactics to use in a negotiation and illustrate the way in which most negotiations involve both positional and interest-based strategies. We demonstrate how negotiators can employ both competitive and cooperative styles at different stages, and can use a mix of different tactics and skills as they work towards constructing a successful negotiation. We also provide the building blocks of a constructive approach to negotiation.

What makes a negotiation successful? 4.2 Broadly speaking, there are some common elements to a successful negotiation: Parties feel that they have an agreement that they can live with. The process was fair and the parties felt that they had a voice. Parties are prepared to negotiate again in the future — for example, if the initial agreement needs to be renegotiated, or new issues emerge. The interests of influential outsiders have been taken into account so that they will not derail the agreement. The relationship between the parties is repaired, maintained or enhanced. The Constructive Negotiation Model presented below provides a guideline

for working towards a successful negotiation.

Constructive Negotiation Model The four-stage constructive approach 4.3 While researching negotiation processes across cultures, Adair and Brett1 recognised that, in all negotiations, there is a ‘dance’. Negotiations move in time and sequence through four stages of negotiation that, at each stage, include portions of cooperative and competitive styles and sections of interest-based and positional strategies. Adair and Brett described this [page 51] Figure 4.1:

A Constructive Negotiation Model

as a holistic view of the negotiation process and found that, although the pattern and frequency of sequences varied across the four stages depending on

culture and context, negotiators from all cultures moved through these same stages regardless of how much time they spent negotiating. Stage 1:

Relational positioning

4.4 The first stage of the four-stage process is called relational positioning. Adair and Brett refer to this as the stage where the parties engage in both competitive posturing and relationship building as they test each other to see whether the other will be competitive or cooperative. Negotiators in this opening stage are usually focused on creating an aura of power and are looking to persuade the other negotiator that they hold the stronger position in the negotiation. They are also trying to influence the other into an appreciation of their person and status, and the value (or not) of the relationship. This type of jockeying for power and influence is usually reciprocated by the other party and, if continued as a ‘tit for tat’ pattern, can be destructive, but if it tapers off towards a sequence of sharing information and showing a mutual respect for the other, then the negotiation can evolve into a constructive one. Once negotiators transition from competitive positioning to relational positioning, they can begin to focus on the substance of their negotiation and can move to the second stage of the [page 52] process: the exploration phase. Negotiators with an established relationship tend to move through the relational stage more quickly than first-time negotiators. However, the opening stage can still be competitive even if the parties already have a long-standing association. However, at some point, constructive negotiators, regardless of their relationship, become frustrated with the posturing and jockeying, and move into the second stage primed to share priority information. Stage 2:

Exploring issues and interests

4.5 The second stage of the process, the exploration stage, tends to be more cooperative than the first stage. The negotiators focus more on sharing information for the purpose of exploring interests and issues, rather than

angling for power and influence. The negotiators reciprocate with information about what is important to them (priority information) and engage in a detailed discussion of the issues. In this stage, interest-based negotiators might be more willing to exchange information than positional negotiators, but the research shows that parties who tend to share information readily, and early in the negotiations, are more likely to come to an agreement.2 It is in this stage that negotiators concentrate on building trust and begin to contemplate possible options without yet putting them on the table. The reciprocal dance that takes place in this stage is one of developing the relationship. At this stage, interest-based negotiators are usually looking for ways to create value, while positional negotiators are more inclined to be looking for ways to convince the other negotiator of the strength of their position and to claim value. Stage 3:

Generating options

4.6 Adair and Brett found that the focus of the third stage takes on a competitive edge as the negotiators move into bargaining mode. They engage in a dance of offering solutions and finding ways to support or reject options put forward using arguments. Options usually emerge during the latter part of the second stage, so the transition to the third stage, which is to generate options that will help solve the issues, usually occurs naturally. 4.7 By now, negotiators have usually come to an understanding about what the other negotiator’s issues and interests are and their order of priority and negotiators are beginning to sense that solutions are possible. The negotiators are beginning to engage in what Adair and Brett describe as an energetic discussion of the options — alternating between focusing on integrating information and influencing the outcome. [page 53] Research shows that positional strategies usually peak about two-thirds of the way through a negotiation, when negotiators begin to trade offers and counter-offers. Comparing offers with their goals, bottom lines and walkaway

alternatives turns the negotiators’ attention back to their power and position as they decide whether to accept or reject the offers — or how to persuade the other party, using independent criteria and rational argument, to improve their offers.3 During these sequences of offer and counter-offer, rational argument and persuasion, negotiators are concerned with both value creation and value claiming and they must work hard to balance the tension.4 Negotiators can easily turn to competitive styles as they position themselves to claim more of the ‘pie’. They must balance this with using cooperative tactics to ensure that the pie is large enough to create enough value for them in the first place. Stage 4:

Reaching solutions

4.8 The focus of the fourth stage is similar to that of the third stage, but more intense in terms of the tempo of the dance. As the negotiators work towards an outcome — agreement, partial agreement or no agreement (and there is usually a sense of which one it will be by the fourth stage) — they increase their sequence of offers and rational persuasion, and increase the intensity of the communications. The negotiators at this point are working towards a final decision and, further, on getting a good deal. The offer and counter-offer sequence and concession making occurs with greater frequency — there is less discussion about the benefits of each offer and more ‘trading’. At this stage, the parties should have sufficient information to construct good offers and be reasonably confident that each offer will be better than their alternatives; if not, then this is also the stage when parties might walk away. The fourth stage is when negotiators reach solutions and, although they might be exhausted, when strong and skilled negotiators are able to keep the negotiation balanced between power and interests, and are able to maximise gains.

Putting the four stages together 4.9 The constructive four-stage model of negotiation emphasises an evolutionary and sequential process. Negotiators pass through stages, blending positional and interest-based strategies as they move towards well-crafted solutions. Constructive negotiators are those who are able to balance their cooperative and competitive desires as they move through the stages, and they

are ultimately those who are able to get a good deal for themselves without sacrificing a wise agreement. [page 54] While it is clear that what negotiators do in the first half of the constructive negotiation influences what occurs in the back end of the negotiation, it is also clear that what occurs within each stage can ‘make or break’ the negotiation. If reciprocal priority information sharing occurs in the first two stages, then the stage is set for some good option generation and solution-finding in the latter two stages. However, if sharing of priority information in Stage 2 is met with resistance or continued posturing, then the constructive negotiator is going to have to work harder to move the other negotiator to Stage 3. Similarly, if a settlement offer in Stage 3 is met with continued rational argument concerning the legitimacy of the offer, then the negotiator will know that the other is not ready to move to the rapid-fire offer and counteroffer sequence of Stage 4. At the same time, a negotiator may be able to move the negotiation to Stage 4 by offering a quick counter-offer rather than labouring over the merits of the offer. And so on. We have presented the constructive four-stage model of negotiation as a linear model: that is, most negotiations will begin in Stage 1 and follow through 2, 3 and 4. At the same time, we are not suggesting that negotiators can never move backward and forward among the stages. Where, for example, negotiators find themselves battling in Stage 3, or at the beginning of Stage 4, they might realise that they should have shared more information in Stage 2. Naturally, negotiators can contribute this information at a later stage. However, they will need to manage its introduction in a structured way that does not take the negotiations off track. Reflexive negotiators use structures such as the four-stage model to help them to monitor the progress of their negotiations. If negotiators practise their negotiations in terms of the constructive model, then it will soon become second nature to know when to offer information and when to use influence, when to rationalise and when to reciprocate, and to know when to modify

the communication and behaviours to suit other types of negotiators who might not be following the same type of dance.

Ten-step guide to constructive negotiation 4.10 Although we have described a four-stage model of constructive negotiating above, there are also micro-processes, or steps, within each stage. We present a ten-step guide to these micro-processes below and give tips and alerts for each step. The ten principles are: 1. Preparation 2. Opening 3. Sending signals about relationship and priority information [page 55] 4. Gathering information 5. Agenda setting 6. Exploring issues and interests 7. Generating options 8. problem-solving and bargaining 9. Outcome and documentation 10. Reflective debrief

Step 1:

Preparation

4.11 The first step is the process of preparation and we devote the next chapter, Chapter 5, to the importance of this step. Why? Because any successful negotiator will tell you that success in negotiations will depend on how well you prepare, and any unsuccessful negotiator will tell you that they could have prepared better. The value of preparation is that it will invariably improve your performance in the negotiation. Preparation will help you to: create an environment for constructive negotiation; increase your ability to make measured and considered responses when

under pressure; increase your understanding of the other negotiator and of yourself; and enable you to make informed decisions during, and at the conclusion of, the negotiation process. In Chapter 5, we guide you through a detailed preparation process including planning the type of opening you want to make.

Step 2:

Opening

4.12 Opening a constructive negotiation can be quite a challenge for a negotiator: Shall I start positional, or shall I start interest-based? What style do I use, cooperative or competitive? Positional negotiators often use one of two main ways to open — soft goalorientated or firm reasonable. Interest-based negotiators often use a more problem-solving method of opening. Soft goal-orientated opening 4.13 In most negotiation situations, people have a psychological need to win. As negotiators, we want to feel that we have bargained well and got the other negotiator to make some difficult concessions in our favour. Of course, the other negotiator has the same needs, which is why competitive behaviour results. [page 56] When negotiators decide upon their opening then, it is important to have room to move so that the other negotiator feels that s/he is getting a win. At the same time, if negotiators price themselves out of the market — for example, by asking a ridiculously high price for a second-hand car — then they may be hard-pressed to find people to play the negotiation game. People don’t want to waste their time and they will go elsewhere for a car. Conversely, if negotiators open too low and then engage in a concession-

making process, they are likely to get less for their car than if they opened at the level of their goal price. To set a soft goal-orientated opening position then, negotiators need to take account of: their goals and that of the other negotiator (insofar as they have access to this information); their expectations and those of the other negotiator; their bottom line and that of the other negotiator; independent criteria such as market value; their relationship with the other negotiator; and the time that they have to invest in the negotiation. The point at which negotiators start their bargaining will directly influence the final offer on the table and the outcome of the negotiation. This is because if negotiators start too far away from their goal it will be more difficult for them to reach an outcome that is better than their walkaway alternatives and above their bottom line. As an illustration, consider the following negotiation for the sale of a car. Table 4.1 contains two sets of concession-making patterns. Column A reflects one way the negotiation could go, while column B presents an alternative scenario that is equally feasible. In this scenario, the seller’s goal is $10,000 and their bottom line $6,000, while the buyer’s goal is $5,000 and their upper limit $8,000. Table 4.1: Column A Seller ($) 10,000 8,500 8,000

Concession-making Patterns Buyer ($) 6,000 7,200

Column B Seller ($) 7,500 6,500 6,000 6,000 (accepted)

Buyer ($) 5,000 5,500 5,750 (rejected)

As you can see from this example, the seller’s opening offer in conjunction with the pattern of concession making that follows has a direct impact on the

outcome (in bold). In column A, by beginning with a higher price equal to the goal, the seller achieved an outcome above his or her bottom line. In [page 57] column B, by beginning with an offer between his or her goal and bottom line, the seller just managed to achieve a sale at the level of the bottom line. Firm reasonable opening 4.14 The firm reasonable opening is another way to begin in positional negotiation. Here the negotiator begins with a reasonable, rather than an extreme, offer. What is reasonable is calculated by taking into account various factors, including: the number and size of concessions that would likely be made by both sides if a soft goal-orientated approach were to be taken; the negotiator’s expectation and that of the other negotiator; the negotiator’s bottom line and that of the other negotiator; relevant independent criteria; and the negotiator’s relationship with the other negotiator. For example, a firm reasonable opening from professionals who regularly negotiate with one another may begin along the following lines: Jim, we have known each other a long time now and negotiated many deals and settlements together. I know your extreme opening positions, the well-practised noises of surprise and indignation when I tell you that your client is dreaming. I can time your stalling techniques and silences to the second. And I know that all the real bargaining will happen in the last hour. No doubt, you can predict all my moves too. So why don’t we move to the last hour, look at the real numbers and then get a go-home-early card?

In this example, the other negotiator has begun the negotiations by talking about process; namely, how these two have negotiated in the past and how they could move forward in this negotiation — it is the type of opening that negotiators might use with someone they know well. By inviting Jim to participate in a firm, reasonable negotiation game, the negotiator is setting out

his or her expectations for the negotiation process. Jim can choose to agree to this or make an alternative suggestion. In contrast to the soft goal-orientated opening, the firm reasonable opening does not offer much scope for concession-making. This is why it is described as a firm opening position. This type of opening is most likely to be successful where the negotiators know each other and have a good working relationship. Here the psychological need for a win that we referred to earlier plays out in a different way. Instead of going through the posturing and motions that follow from a soft-goal orientated opening, firm reasonable openings ‘cut to the chase’ in an attempt to move efficiently, sensibly and respectfully through a positional negotiation. Firm reasonable openings can be useful where the negotiators: know each other personally or by reputation; have a good working relationship and good rapport; [page 58] respect each other; trust each other to negotiate with integrity; and want to minimise time invested in the negotiation process. The firm reasonable approach is only suitable in limited circumstances. Most negotiators will resist offers presented as final or a fait accompli no matter how reasonable they are. At the same time, where the negotiators’ offers broadly mirror each other, a firm reasonable approach may be appropriate, and resource efficient. Problem-solving opening 4.15 Another type of opening that might lead to an entirely different outcome is the problem-solving opening. The problem-solving opening is the favourite of interest-based negotiators and involves talking in terms of interests, not positions. Consistent with the relational positioning stage of constructive negotiation (Stage 1), the problem-solving opening begins with

relationship building complemented by a small amount of built-in competitive posturing. The difference between the problem-solving opening and the positional types of openings is that no offers are made and no opening positions described — in this way, the inherent stress involved in thinking how much negotiability is in an offer is replaced with the relative freedom of exploring the issues and building trust and rapport. Instead of thinking about what counter-offer to make and how to make it, the problem-solving opening involves questions about what the negotiators’ needs and interests in the negotiation are and why they are important. This approach can take time and is not without its challenges. If negotiators are met with resistance to this approach, they might have to discuss the approach that they are trying to take and educate the other negotiator on its benefits. They might also have to persuade adversarial negotiators that it really is in their best interests to explore both parties’ needs and interests, not simply justify positions. They might indicate to them what possible and creative solutions are on offer early on to help them to settle into the process.5 The main aim of a problem-solving opening is to open the negotiations up for an interest-based approach — and if this is the aim, then this is a wise choice for opening. However, naturally, a problem-solving opening will be enhanced if both negotiators adopt an interest-based strategy and cooperative style. Although negotiators don’t need to abandon a problem-solving opening and convert to positional negotiating simply because the other party isn’t using the same approach, in some instances it might be the [page 59] better tactic to adopt, for example, when litigation is an alternative and there is a risk of giving away too much information. Successful negotiations often depend on what occurs in the early stages of the negotiation, so although it might take time, in the long run a problemsolving opening may result in the most successful and efficient negotiation. Alternatively, and depending on the context of the negotiation, a soft goalorientated or a firm reasonable opening might yield the better results.

Table 4.2 below contains a list of the opportunities and risks associated with each opening; however, again, the message here is to learn what works in what situations and what works for you. Table 4.2: Type of opening Soft goalorientated

Opportunities and Risks of Negotiation Openings Opportunities Can lead to a highly favourable outcome if the other party is unprepared. Also, research shows that the higher the opening demand, the higher the final payout is likely to be6 If you make the offer in a manner that makes it clear that it is a negotiable starting point (see below), can allow you to put favourable figures on the table while minimising the chances of derailing the entire negotiation Sets the parameters of the negotiation but also allows room to manoeuvre

Risks Where the other party is not prepared or not experienced, can lead to that party’s dissatisfaction as they realise too late that they have made a bad bargain If opening is too extreme the other party will refuse to ‘dance’, walking away in search of another partner

If met with a firm reasonable response then there is very little room for the other negotiator to move (only up) — again, this could lead to a dissatisfied other negotiator If both parties make extreme openings, then the size and number of their concessions must be sufficient to bridge the gap between the offers. If size and/or number of concessions are too low, parties may run to the end of the concession-making dance before their offers overlap

[page 60] Table 4.2: Type of opening Firm reasonable

Opportunities and Risks of Negotiation Openings — cont’d Opportunities Time and cost efficient

Risks Doesn’t take into account the psychological needs of the parties, including the need for reciprocity and the need for a win

A reasonable and sensible outcome

Problemsolving

Step 3:

Delays the bargaining and concessionmaking until the parties have explored the issues and developed a relationship A more cooperative environment, thus more creative solutions may be possible Is most effective where the other party reciprocates

When parties do not engage in the negotiation dance, they may feel dissatisfied with the process and this may jeopardise the chances for agreement Can require considerable resources, including time and money

If met with a positional or competitive response, then can require considerable effort to continue Revealing too much information, especially if met with a positional response and the matter does not settle

Sending signals about relationship and priority information

4.16 Regardless of whichever opening negotiators choose, they will be sending signals about how they view the relationship with the other negotiating party, what their priorities are and what their interests are. Hence, negotiators will continue to engage in the relational positioning stage (Stage 1) of the negotiation process as they head towards the issues and interests exploration stage (Stage 2). Relationship 4.17 As previously discussed, negotiation is an evolutionary process, not an event, and for this reason it is essential that at all times negotiators remain aware of the influence that their negotiation strategies and tactics are having on the relationship between them and the other negotiating party. [page 61]

Adair and Brett suggest that there are two general approaches to determining relationships in negotiations: parties can either disclose a little sensitive information about their preferences and priorities to signal cooperation and the willingness to develop trust; or, alternatively, parties can exert influence and establish a position to signal a competitive negotiation. Building trust and managing distrust 4.18 All negotiators will have a view about the importance of developing trust or managing distrust in their negotiations. We all have a different propensity to trust, depending on our own individual differences, which we discuss further in Chapter 7. However, the perception of trust or distrust is just that, a perception; so it is always a good idea to test assumptions and perceptions when possible. Regardless of perception, research does tell us some revealing things about trust:7 Most people are remarkably willing to trust the other negotiator, even with very little information or knowledge about them. Parties who trust each other are more likely to cooperate. Greater expectations of trust lead to greater information sharing. Perspective taking builds trust — being able to take the other’s perspective will lead to more reciprocity of trust. Positional approaches lead to more distrust; interest-based approaches lead to trust. Trust increases the likelihood of a successful negotiation. Face-to-face negotiation encourages greater trust development. Negotiators representing another’s interests (agents, lawyers and so on) tend to behave in a less trusting way than if they were representing their own interests. Types of trust and distrust 4.19

Lewicki describes two types of trust:

calculus-based trust, which is the more superficial type of trust in shallower or

short-term relationships (for instance, a work colleague with whom you do not work directly); and identification-based trust, which is the trust found in deeper, more close and intense relationships (for instance, a partner or business colleague with whom you are involved on a long-term project). [page 62] There is also distrust, for which Lewicki makes the same calculus-based and identification-based distinctions. Because of the importance of trust in negotiations, we examine both these aspects of trust and distrust, and outline some ways to build and manage them in constructive negotiations. Building calculus-based trust 4.20

Calculus-based trust can be built by:

Performing competently. Others contemplate how much to trust people by assessing how well they perform the duties set for them — so therefore perform competently and skilfully Walking the talk. Integrity is reinforced to the extent that people do what they say they will do and fulfil their commitments Communicating accurately, openly and transparently. Be clear about the intentions and motives for actions — this will build trust Sharing and delegating control. Trust often needs to be given for it to be returned. Share process control and allow others to have a say in who does what Showing concern. Being respectful, dignified and polite, and showing sensitivity to others’ needs, desires and interests, will help to build trust Building identification-based trust 4.21

Identification-based trust can be built by:

Establishing a common identity. Engage in talk and actions that build a

sense of team and nurture a common identity and purpose. Capitalising on co-location. Frequent interaction can help negotiators to get to know each other better and strengthen the common identity, as well as reduce the distrust Remembering the more-exposure effect. If negotiators cannot interact frequently in person, then there are other ways to get exposure, for example, using electronic means to communicate Identifying similar interests. The more common interests negotiators have, the more interaction and respect they will have for each other Creating mutual products and goals. Create and build products, services and activities that define both commonality and uniqueness Promoting shared values and emotional attraction. Model a concern for the other party by active listening and recognising their contributions, interests and abilities These descriptions demonstrate how a higher level of trust is required where parties intend to have an ongoing relationship, and especially where they intend to work together in the future, for example, in a joint venture project. However, where the negotiation involves the settlement of a dispute [page 63] with no or minimal future contact between the parties, calculus-based trust may suffice. Managing calculus-based distrust 4.22

The following tactics can manage calculus-based distrust:

Establishing open communication to clarify objectives and establish what the other negotiator’s objectives might be. This will enable negotiators to ascertain whether the distrust is making the relationship or the negotiation dysfunctional. Looking for alternative relationships to satisfy interests. When negotiators

have alternative ways to get their needs met, the need to trust the other decreases. This tactic is called strengthening your walkaway alternatives and is discussed further in the preparation section in Chapter 5. Creating valid expectations. If negotiators actively discuss and manage the other’s perceptions and expectations, then they will eliminate any ambiguity about expectations and decrease distrust. Increasing the other’s awareness of how others view them. When others feel that they are being watched (even outside of the negotiation), and when they believe others may distrust them as well, they may feel inclined to behave in a more trustworthy fashion. Managing identification-based distrust 4.23 Managing the more intense distrustful relationships can be a challenge. In many cases, negotiators choose to separate themselves from people with whom they have strong identification-based distrust. However, if they decide to continue the relationship, they might try the following: Try to talk out differences. Expect that negotiators will regularly disagree, see things differently, take opposing views and stand for different ideals and principles. Therefore, talk it through. Check out and verify information. If you find that the information that the other party has given is incorrect, it is best to approach the party and ask him or her to help make sense of the different information that you have. Be controlled and vigilant in what is said and in what information is revealed. It is best not to disclose information that could make you vulnerable. Identify specific areas where you need to work together and concentrate on these, rather than spread the distrust to other parts of the relationship. Openly acknowledge key areas of contention and avoid situations that make strong areas of distrust more salient. [page 64]

Lewicki’s ideas about trust and distrust give some indication of when negotiators might be inclined to share information and to what extent. In any successful negotiation, there will need to be an exchange of information of some type. We consider now sharing priority information and how this is likely to influence the negotiation. Priority information 4.24 In the communication and relational positioning stages of negotiation, not only will the negotiators be sending each other signals about trust, but they will also be sending signals about the relationship.8 They will also be sending each other signals about what the main issues are and what their main interests are. These signals are referred to as priority information — and how negotiators choose to share (or not share) this information can be very revealing. 4.25 Parties who choose to share priority information often signal a desire to cooperate and a willingness to trust, while parties who only share positional information (information about their positions) are usually signalling a competition or minimal trust, or possibly a sense of distrust. The willingness or not to share priority information can be a major indicator of the extent to which the negotiators will tend toward taking an interest-based or positional approach. Priority information is the information that reveals what the negotiator’s main issues and interests are, and what the priorities are among those issues and interests. These signals can be sent in different ways: by using direct statements about preferences and priorities, for example, ‘The IP and the financing is more important to us than a lump sum’; by conveying indirect information when reacting to an offer, for example, ‘We couldn’t possibly accept that offer’; or by noting common interests or areas where the parties might have common issues but different objectives, for instance, ‘We need the IP and you need to feel that you haven’t spent good money after bad’. These are priority information statements and priority information sharing is essential if the parties want to find solutions that create value and maximise

mutual gains. Adair and Brett found that across cultures, direct information sharing was superior to indirect sharing when attempting to maximise mutual gains. Even experienced negotiators could not glean enough information from indirect sharing to produce high-quality solutions. So, rule number one for information-sharing to maximise mutual gains: try [page 65] to make as many direct priority information-sharing statements as you can and try to elicit direct statements from the other party. It is often complicated learning how to directly share sensitive information if there is only minimal trust, or an element of distrust, or if the parties have yet to build trust. The research shows that negotiators who are able to refocus their negotiation from positions and power play to priorities in the first stage of negotiations are more likely to create mutual gains — because the more priority information shared, the more chance of reaching an optimal solution.9 Even if the priority information is shared indirectly through offers, it is still useful and moves parties from the strict application of positional negotiation to a more constructive frame. So, rule number two: if direct priority statements are inappropriate at this stage of the negotiation, use indirect methods to share information by making reciprocal or complementary offers that encourage more information sharing. For instance, a negotiator might say, ‘that’s an interesting offer, before we talk about that, would you like to think about perhaps providing some financing with that as well …’.

Step 4:

Gathering information

4.26 If the negotiators have built trust and shared some priority information, then the next step, information gathering, might proceed smoothly. This is known as the intelligence-gathering stage or the CIA stage (concerns, issues and agenda) and involves listening for the concerns of the other party and identifying the issues and interests with a view to establishing an agenda. As we discuss in Chapter 5, experienced negotiators will already have

gathered information before coming to the negotiating table. They will have gathered information on the substantive issues under negotiation, and should already have some information about the purpose of the negotiation, and what the negotiating style of the other negotiator is. The experienced negotiator will also have gathered some information and made some judgments about the other party’s interests and issues. Once the face-to-face negotiation process is underway, this is the time to then test that information and test the assumptions that have been made about the other party’s interests and priority issues. [page 66] The best way to test these assumptions and to gather CIA information is to listen more than talk; and the best way to do this is to be curious and ask questions. In research on skilled and average negotiators, Rackham found that skilled negotiators asked significantly more questions during a negotiation than the average negotiator asked.10 In this step, asking open questions, such as the what, why, where, when or how questions, encourages the other party to volunteer potentially valuable information that can be used for the agendasetting and issue exploration stages. For example, asking the other party, ‘what they want?’ and ‘why they want it?’ will often move the party from positional information sharing to priority information sharing. However, just as skilled negotiators ask these questions to discover information, they also have to be prepared to answer these types of questions in return. To a certain extent, the level of information that one party has provided will determine how much information is given back, but it is important to remember that trust builds trust, so negotiators sharing information about what they are thinking about a certain subject can elicit sharing from the other side. Remember also, that valuable information can come from a discussion on how someone is feeling about the subject matter; so depending on the context, sometimes sharing feelings can also result in rich information gathering.

Step 5:

Agenda setting

Setting an agenda 4.27 Once negotiators have asked questions and have listened to the concerns and issues of the other party, then they can start to work to develop an agenda. An agenda is a list of issues that need to be talked through and negotiated in order for the parties to reach an outcome. Often, experienced negotiators will have started to formulate a tentative agenda before the face-to-face negotiations begin. However, taking the time after the information-gathering exercise to agree upon an agenda for the remaining steps of the process is still a good idea. An agenda helps to structure the negotiation and ensure that all the parties’ issues are discussed. The general rule is that the more negotiators know about each other’s issues and interests, the better the quality of solutions that are produced. Another benefit of setting an agenda is that in moments [page 67] of impasse, the parties can move on to another item on the agenda without losing track of the previous item. Here are some tips for developing an appropriate negotiation agenda: Manage the number and size of issues on the table — having multiple issues can obscure the central issues in the negotiation. Share control and responsibility for the agenda. Construct the agenda items to frame the negotiation in a way that is mutually acceptable and acknowledged. When negotiating parties’ frames match, they are more likely to focus on their mutual interests and common view of the negotiation. Allow for movement and flexibility in the agenda. Negotiators can add or

subtract agenda items depending on the progress of the negotiation, and reframe if necessary. Prioritise the agenda items so that there is an order to follow. Some negotiators may want to deal with a low priority item first to foster a positive climate for tackling the more substantial issues later. Or they may want to tackle the more complex issues first, thereby moving the ‘boulder in the road’, which paves the way for easier discussion of the remaining issues later.11 Framing the agenda items as problem-solving questions can often be helpful. The right question sometimes provides half the solution. The use of a whiteboard or flipchart is also useful. Negotiators can keep track of the negotiation and mark off items of agreement to help to create a sense of accomplishment and a positive environment. Probing the hidden agenda 4.28 While setting the agenda, negotiators need to remain alert to the ‘hidden agenda’. Some negotiators might have a feeling that something is missing, or that the other party is not disclosing important information. This feeling might have arisen because the other party is displaying some uncomfortable or incongruent body language, is making contradictory statements, or is seeming unwilling to commit to time limits or some items on the agenda. We explore intuition and non-verbal communication in Chapter 6, but for now here are some suggestions and how to become consciously aware of what might be creating this sense of unease and/or what might be the hidden agenda. [page 68] Be direct. ‘I am getting the sense that I am missing something here. What am I missing or what else needs to be discussed?’ Take the pressure off. By spending more time building trust and rapport, the other party might open up and divulge any hidden issues or interests

Put the pressure on. By putting pressure on, and indicating that the deal might fall over if they do not ‘come to the party’, the other negotiator might disclose more information for fear of losing the deal Seek further clarification of items already on the agenda. ‘Just let me check, you meant … by that item …’ Move forward but expect to have to deal with whatever is missing in the future. The missing piece might be the deal-breaker, so if the feeling persists, keep trying tactics to unearth the hidden issues or interests Some of these suggestions might seem contradictory, but, as indicated previously, constructive negotiators learn how to deal with paradox and contradiction of negotiation — they learn how to make conscious choices between various strategies, styles and tactics, and learn in what situations which particular strategies work. Constructive negotiators will reflect on what works and what doesn’t, and will not be afraid to try another strategy if the first one is ineffective.

Step 6:

Exploring issues and interests

4.29 Experience tells us that in a successful constructive negotiation about 80 per cent of the work is done in this next step, the exploration stage. This is the part of the negotiation where the harder the work done, the more productive the outcomes will be. First, it is important to distinguish between issues and interests. Interests are the desires, concerns and fears underlying the negotiators’ positions, while issues are the general topics or problems that require resolving. Just to recap on interests — there are different types of interests, including substantive, procedural, relational or psychological, and principle interests, and people prioritise these differently. Positional negotiators have interests just as interestbased negotiators do, and it is the constructive negotiator’s job to explore the other negotiator’s interests and find out how those interests are prioritised, and to find whether they might be complementary, shared, neutral or conflicting with their own. The importance of this is that unlike positions, which are shallower and therefore easier to understand, interests usually exist

[page 69] at a deeper level. Therefore, once interests are identified, it is usually easier for constructive negotiators to negotiate towards constructive solutions. Separating interests from positions 4.30 Some separation of interests from positions might already have occurred in the information-gathering step. In this next step, there is the opportunity for further digging under the positions to uncover all the party’s interests and any hidden problems that might hinder the negotiation. Simple techniques for uncovering interests include:12 Ask ‘why?’ Put yourself in the other’s shoes and mentally ask why you think the other party might want something. Or test this by asking the other party directly Ask ‘why not?’ It is not always the case that people know the answer to this question. For this reason, it is a good ‘interests identification’ question as it asks people to test the reasons why they want a particular thing and why they might not want something else Once negotiators have identified each other’s interests and separated them from the positions, they need to educate each other about these interests in order to understand what is driving the negotiations. Here, interest-based and positional negotiators are likely to differ on where they place their emphasis. Positional negotiators are more likely to focus on the substantive interests at issue, while interest-based negotiators are more likely to focus on the relational or procedural issues. Remember that interests can change and that the constructive negotiation process is an evolutionary one. As the parties learn more about each other’s interests and gather new information, their priorities may change or some motivating interests may fall away as others take ascendancy. For this reason, the exploration phase involves careful questioning and listening, and it is important to stay flexible to accommodate each other’s changing needs and concerns. 4.31 In the communication chapter, Chapter 6, we give tips for exploring interests. Some simple guidelines include the following:

Listen and question. Following the multiple threads of the many interwoven interests that motivate people to take a particular position involves careful listening and questioning Focus on future needs and concerns. If negotiators focus on what the parties need and desire for the future rather than grievances from the past, then the negotiation will most likely progress with a greater emphasis on cooperation and maximising gains [page 70] Share, seek and reciprocate. Share and seek information, and create a free flow of communication to enhance understanding of each other’s interests Be clear and open. Being as clear and open in the communication as the situation allows ensures that the parties understand how important and legitimate each other’s interests are Be flexible. Demonstrating flexibility and a willingness to change proposals if mutual interests can be found is a way to open the other party up to more information sharing about interests Look to create value before claiming value. Before talking about who might get what — that is, before trying to claim value — it is important to ensure that the parties know what they want and why they want it. In this way, they can look for ways to create value and optimise the solutions that might be available to them both

Step 7:

Generating options

4.32 Once negotiators have a sense of each other’s concerns, motivations, needs and interests, they can start to work together to generate options that might address their interests. 4.33 In Chapter 3, we made some general observations about option generation. To recap, these

included: Options are not solutions, they are only possible solutions. Look for creative options, not just the obvious ones. Generating many options creates more likelihood of better solutions that meet the needs of all the parties. Include options even if you doubt their feasibility — these might just turn out to be compatible with the other party’s interests. Refrain from judging too early — once judgment enters the arena, creativity ceases. Encourage everyone to be involved in option generation. Think creatively, but work rigorously. These are general guidelines for generating options. Now, we provide some more detailed ideas about how to transform the data that you have collected about interests into possible options. Brainstorm. This is the classic option generation process. It involves the parties coming together in a semi-formal process of ‘putting their heads together’ to think of options. Some ground rules and guidelines that have developed about brainstorming include: [page 71] – – – – – –

Frame the issue as a ‘how to …’ question: ‘How shall we …?’ Use a whiteboard or flipchart to capture the options and make sure everyone’s contribution is visible. Have everyone face the board together, rather than face each other. In this way, everyone is facing the problem together. No censoring, justifying or debating — suspend judgment and evaluation until all the options are on the table. No ownership — everyone’s contributions become ‘shared property’. Use inclusive language — ‘and’ not ‘but’.‘That’s an interesting idea and

perhaps we could also …’ Be exhaustive. If there is insufficient time or inclination to brainstorm, here are some other ideas: Chunking. Break the issues down into smaller parts so that the problem does not seem overwhelming. Generate options for each smaller part Research and identify ways of expanding the pie. Research ways to expand the resources available; for example, you might need more time to investigate how others might have approached the same issues, or more time to raise finances to enable a particular option Look at past agreements or model agreements. Look at previously generated solutions, or at how others have reached agreements, and see if you can extend or modify these in the light of the new understandings that you have obtained when exploring interests Work with one document. Start to develop an agreement and pass the document between the parties. The parties take turns to make amendments as they work towards making the agreement progressively more acceptable to everyone Use others. Call in experts or other outsiders to shed new light on the issues. Experts can be helpful to explain how other parties might have solved similar issues. Experts and other outsiders can also provide fresh options that the parties might not have considered Meta analysis. Discuss the ways in which you might begin to generate options. Having a discussion about option generation might initiate the process itself Brown has compiled a number of more artistic alternatives to the more scientific approaches to option generation, some of which we outline below:13 [page 72] Wordplay. Shifting the emphasis on certain words, changing a word, deleting a word or words, or adding a new word in a sentence, can force the mind to jump across its normal neural pathways (its mental ruts) and help to

create some new energy and ideas in the room. For instance: ‘Simon, how do you expect me to get the money?’ says Mike. This can become: – shifting emphasis: ‘Simon, how do you expect me to get the money?’ ‘Simon, how do you expect me to get the money?’ ‘Simon, how do you expect me to get the money?’ and so on. – changing a word: ‘Simon, how do you expect me to raise the money?’ – deleting a word/words: ‘Simon, … do you expect me to get the money?’ – adding a new word: ‘Simon, how do you expect me to get the rent money?’ Mind mapping/word clustering. Another technique to force the mind out of its usual pathways is to write the problem or issue in the centre of the page and then write down words related to the problem that come to mind, randomly on the paper. Create a map of these words over a sheet of paper and make connections. You might be surprised where the connections lead. The Negotiation Navigation Map which you will find in Chapter 5 is based on the concept of mind mapping De Bono’s ‘Six Hats’ technique. Discuss the problem or issue from six different aspects. De Bono referred to this as putting on six different hats: red for emotions, white for facts, yellow for positive aspects of the situation, green for future implication, black for critique and blue for process Atlas of approaches. The parties take on the perspectives of different professionals from a variety of fields to provide an interdisciplinary view of the problems or issues. Ask ‘what would an economist do?’, ‘what would a psychologist say?’, ‘what would a lawyer do?’. This technique can be extended or modified to include, ‘what would your mother/grandmother do?’ (to get a wise opinion) or ‘what would Croesus do?’ (to get an opinion from someone where money is of no concern). Croesus (which rhymes with Jesus) was a supremely rich king who ruled Lydia from 560 to 546 BC —

however, you could use anyone in this scenario, such as Bill Gates for instance Bad ideas. The parties put forward bad ideas for solving the issues or meeting the interests. Honeyman suggests that by putting forward bad [page 73] ideas (because they are easier to generate), this frees the parties from the constraints of having to be clever, and often in bad ideas there rests the kernel of a good idea.14 And, if none of these ideas work, you can then call in a facilitator or mediator to assist.

Step 8:

Problem-solving and bargaining

4.34 There are limits to the amount of problemsolving and option generation that negotiators can do, and there will almost always come a time when they start to think more competitively about what they want to achieve. In this part of the negotiation, the negotiators begin to evaluate the options that they have generated and to trade offers and counter-offers. These aren’t discrete steps. Options are evaluated and offers are made simultaneously. As this is done, the negotiators alternate between problem-solving and bargaining. This is the tension between value creation and value claiming. On the one hand, the negotiators continue to problem-solve to craft solutions and to create value in the negotiation (to expand the pie); while on the other, they make and reject or accept offers and counter-offers that allow them to claim the value that they have already generated (claim their share of the pie). In essence, they are alternating between positional and interest-based strategies. Interest-based and positional negotiators will take different approaches to problem-solving and bargaining. As discussed previously, positional negotiators will usually protect themselves by referring to their bottom-line or to their goals when deciding which options or offers they will accept. Interest-

based negotiators tend to judge the options or offers against their alternatives. To recap: The bottom line is the minimum that a negotiator is prepared to accept or the most that they are prepared to give up. Having a bottom line alerts the negotiator to when an option is not acceptable — keeping the bottom line in mind makes it easier to resist tempting options and offers, as well as pressure from hard bargainers. However, at the same time, adopting a bottom-line approach can limit the negotiator’s flexibility and creativity. Often, negotiators can become entrenched in protecting their bottom line and lose the ability to see other options that might be available. [page 74] A negotiator’s goal or aspiration level is the most that they hope to receive from the other party. It provides another measure for judging the suitability of options and is particularly useful for motivating the negotiator to continue to pursue the most suitable option and not to give in too early. Although negotiators do not always expect to achieve their goals in a negotiation, keeping a goal in mind can be a particularly useful way to remember to keep the heat on in the negotiations. Alternatives are those solutions that are available to the negotiator, independent of the negotiation. Thinking about alternatives and judging options against the best walk-away alternative forms a protection from accepting solutions that may not be in the negotiator’s best interests. The thinking is this: There is no reason that I should accept an option or offer when I have a better alternative available to me outside of the negotiation. By keeping best alternatives in mind during option evaluation, negotiators can safely compare a proposal with their alternatives as they continue to mould and formulate options that will better satisfy them. Problem-solving to evaluate options 4.35 Looking to the bottom line, goal or alternatives are ongoing methods that negotiators can use to judge the suitability of options and offers. Another

way of selecting options is to problem-solve to evaluate and select the best solution. Some ways to problem-solve include the following: Prioritise and reduce the number of options. – Make links between similar or complementary options and, without discarding them, place the less complementary options to one side to return to if necessary. – Assess the appropriateness and feasibility of each option. Does it solve the problem? Will both parties be satisfied? Put aside the options that seem impractical or will make one party feel dissatisfied. – Match options to needs and concerns. Which options meet most or many of the needs of the parties, and which take away most or many of the concerns? Use these questions to prioritise the options. Stay positive and continue to re-evaluate points of disagreement. It is easy for emotions to resurface in this stage, so negotiators need to take breaks if they need to. See Chapter 8 for more ways to manage emotions in negotiations. Eliminate unhelpful tactics. In Chapter 9, we discuss responses to hardball tactics. In this step it is useful to identify the unhelpful tactics, and either confront them or renegotiate the process of evaluating options. Use a risk analysis tool. These tools vary in complexity. At a minimum, negotiators should be asking themselves how this offer or option will affect their: [page 75] – – –

business or their job: Can energy be put back into the business rather than into the dispute? personal and professional relationships: Can I spend more time at home with spouse and children, and at work with colleagues and supervisors? private life and non-work time: Will the offer on the table allow me to regain my leisure time?

–

health and well-being: Will the offer on the table help me to de-stress and regain my well-being?

Don’t rush and remain fluid. The best solutions will take time, so negotiators need to keep the problem-solving momentum going until the very end, until they have reached the most acceptable solutions Bargaining to close the deal 4.36 Here are some ideas on how to bargain to close the deal. Constructive negotiators will use a combination of competitive and cooperative tactics to achieve optimal solutions. Competitive style 4.37

Competitive style closing tactics include:15

Assume the close is a technique borrowed from salespeople who will assume that the deal is done and will demonstrate this assumption by filling out a form or contract with the details on it before the final agreement is made Split the difference is a common closing tactic to cross the last gap in negotiations.16 This tactic is used when the parties split the difference between the amounts remaining to be negotiated. While this tactic gives a first impression of fairness, it will benefit the negotiator who has gained the most in terms of: – setting the parameters of the negotiation through opening positions; and – claiming value concession-making thus far in the negotiations.17 [page 76] Exploding offers consist of attractive substantive offers with extremely tight periods for acceptance. The idea behind the exploding offers is to prevent the offeree from considering alternatives, researching market standards or other benchmarks, and/or consulting others. This can make it

difficult for the offeree to make an informed decision about whether or not to accept Sweeteners take the form of extra concessions made in order to close the deal. Effective positional bargainers who use this tactic usually have factored in the sweetener in their overall negotiation strategy, even though it is offered as a spontaneous extra to do the deal Making multiple final offers in the form of different packages makes it hard for the other negotiator to say no. Generally, these packages represent the same value but they are structured in different ways Cooperative style 4.38

Cooperative style closing tactics include:

Firm flexible: a technique for remaining firm and assertive on defending good options (not positions), while at the same time signalling a willingness to remain flexible and open to aspects of solutions that are not acceptable to the other party. Similar to a firm reasonable opening, this is a firm flexible closing Trading: a way for the cooperative (and competitive) style of negotiators to make sure that they don’t give something away without getting something in return. Effective negotiators will not concede an issue — they will trade it for something else Packaging options and offers: is similar to the multiple final offers tactic described above (at 4.37). It creates a comprehensive package that addresses all the parties’ key interests. Using this tactic, a cooperative style of negotiator can create a package that balances one’s losses with the other’s gains so that the overall package is acceptable Being patient: a cooperative negotiator will give the other party time to absorb all the information and to prepare a response to ensure finality Knowing which issues are most important and which are less important, and being careful not to let any ‘hard bargaining’ and positional tactics take away from a negotiator’s focus on maximising gains Continuing to expand the pie, exploring interests further and looking for other options

Being clear: effective negotiators use the cooperative tactic of being firm and clear when an offer or option is unacceptable. They must be prepared to demonstrate that they have better alternatives and can walk away. In this instance, walk-away alternatives are not used as threats or [page 77] ultimatums; they are simply indicating to the other negotiator that, from their perspective, the offer is not adding value to the negotiations. In the problem-solving and bargaining stages, some negotiators may begin with competitive tactics and integrate more cooperative tactics if they sense that they are moving towards an impasse. Alternatively, they may begin cooperatively and switch to competitive tactics to close the deal. The skill for constructive negotiators is to understand the ‘play’ and to balance the strategies to create an agreement that is valued by both parties. The good news for negotiators acting on behalf of clients is that clients like it when professional negotiators, like lawyers, are able to balance these strategies well.18

Step 9:

Outcome and documentation

4.39 As negotiators near the final step of the negotiation, it becomes apparent as to whether or not they are going to agree. Regardless, there is still important work to do and negotiators cannot relax until it is done. No agreement 4.40 If the negotiation looks like ending with no agreement, then the question becomes ‘where to from here?’. Negotiators still have some process options at this stage, for example, they could: review the costs and benefits of the negotiation to assess further process options; engage a mediator or a facilitator to assist, or perhaps even seek an expert

appraisal of the situation; conduct another negotiation further down the track; or walk away. The potential costs of negotiating without reaching agreement include wasted time, other wasted resources (money, good humour) and the disclosure of information. However, the potential benefits that might arise out of a negotiation, even with no agreement, include: a good relationship — if a good working relationship has been established, then this may well be of benefit in the future, particularly if the parties are in the same or complementary industries; [page 78] clarification of the issues — it is likely that the negotiation clarified or narrowed some of the issues in contention, or at the least assisted to identify interests; and the experience of the process — aside from any personal practise with negotiating, if the negotiation needs to begin again with another party or representative, then the experience gained from this negotiation can benefit the next. New matters will have come to light and the problems with the first negotiation can be factored into the next.19 Sometimes an important outcome of an agreement is simply having conducted the negotiation in the first place. Negotiators will undoubtedly be wiser and more experienced when the next negotiation comes along. In any event, it may be useful to document the outcome of the negotiation in terms of defined issues on the table, the general tenor of the negotiations and — unless confidential — the last offers made. Agreement 4.41 If there is an agreement, then the proposal needs to be reality tested. First, make sure that the proposal is clear. After the intensity of negotiations, people often prefer to skip this stage. Negotiators need to ask the following

questions: ‘What have we missed?’ ‘Who is doing what?’ ‘Are there a number of steps involved?’ ‘What are they?’ ‘Who is responsible for what step?’ ‘Where, when and how is each step happening?’ ‘Who is paying for what?’ ‘How will payment be made?’ ‘What happens if any of the steps aren’t completed or payments are not made on time?’ Second, clarify the action plan and time frame. Without a certain plan, the issues that were brought to the table in the first place are likely to resurface again. Finally, establish a review process to ensure that if the terms of the agreement are implemented, then they will satisfy the parties’ interests in the way that both parties thought that they would. This may involve a follow-up meeting, perhaps with a facilitator. Is the agreement working at three months, six months, 12 months? If not, what needs to happen — what process needs to occur? Is there a back-up plan? This plan might include a dispute resolution arrangement or a back-up option to implement. A review process is important for any agreement regardless of how robust it may seem. Documenting the decisions 4.42 It is not always necessary to document the agreement of decisions made. Sometimes a verbal agreement, a handshake or a nod of the head [page 79] will suffice. Except for decisions dealing with interests in land and family law settlements, agreements do not need to be in writing to be enforceable. Writing does, however, make it easier to prove the terms of the decisionmaking and provides a good record of what has been agreed. Further, it may be the case that the negotiating continues during the drafting process, as people can perceive proposals differently. Therefore, putting decisions in writing can clear up any ambiguities or misperceptions that might still exist. Here are some tips for writing up decisions: 1. Use Plain English. Even if there are technical descriptions required, make the syntax simple.

2. 3.

4.

5. 6.

7.

Be logical. There is no right or wrong way to set out an agreement, provided that it is logical and clear. Refer to the reality testing section above (at 4.41) and include all the terms that set out who does what, when, how and how much. Remember the review process. Review at set time intervals to make sure that the parties are satisfied and that the solutions are working. Use the same words to convey the same meaning and describe the same concepts in the same way. Although by repeating the same words you might make the document sound repetitive, it will add to its certainty and aid interpretation if like concepts are described in like terms. Use one idea per sentence/one idea per paragraph. Keeping each sentence and paragraph clear makes the document easier to read. Include a dispute resolution mechanism. People sometimes interpret agreements differently so plan for this eventuality and arrange a process, such as negotiation or mediation, to allow a discussion of any misunderstandings before they escalate. Take your time. It is important to get it right in the first instance and have all parties sign the document upon its completion.

Step 10:

Reflective debrief

4.43 Effective negotiators will reflect and debrief after each negotiation. In Chapter 1, we highlighted the complexity and multi-dimensional nature of negotiation, and discussed how reflexive negotiators are reflective learners. Reflexive negotiators will ask themselves questions after each negotiation to ensure that they make better choices in their next negotiation. They also might debrief with a colleague or keep a reflective journal. They will ask themselves ‘why’ questions, such as ‘why was I sure/unsure about how to open the negotiations?’ and ‘why did/didn’t I assume a friendly approach by the other party?’. In answering the ‘why’ questions, negotiators begin to [page 80]

learn about the assumptions that they tend to make, the way that different contexts and people affect them, and the different ways in which people might respond. Negotiators will also use checklists to begin to compile a deeper understanding of themselves and other people, and to learn to become more effective in their negotiations

Summary 4.44 The first part of this chapter introduced the Constructive Negotiation Model and the four stages of the constructive negotiation process: relational positioning, exploring issues and interests, generating options and reaching solutions. Relational positioning is the stage of the negotiation where the negotiators engage in both competitive posturing and relationship-building as they jockey for power and influence. Exploring issues and interests is the stage where the negotiators share information and engage in a detailed discussion about the issues on the table and each other’s interests, and the generating options stage is the stage where they begin to generate options that will help to resolve those issues and meet the interests. The reaching solutions stage is the stage where the negotiators are working towards a final decision. Finally, we explained how in all these stages there is a competitive–cooperative, positional–interest-based ‘dance’ that occurs, as the negotiators balance their competitive desires to win and claim value with their desires to cooperate and create value. The chapter then detailed a ten-step guide through the micro-processes of constructive negotiation, which included: 1. the importance of preparation; 2. various openings that negotiators can use to indicate their approach to the negotiation; 3. the manner in which negotiators send out signals about the relationship through the sharing (or not) of priority information — issues with trust and distrust and how to respond to these; 4. the CIA (concerns, issues [interests], agenda) of gathering information; 5. the importance of agenda setting and probing for the hidden agenda; 6. the significance of exploring issues and interests;

7. 8.

generating options; being patient with problem-solving to evaluate the options and closing the deal; and 9. what to do in the case of agreement or no agreement, and how to document the decisions made; before concluding with 10. the importance of reflective debriefing. [page 81] Throughout the chapter, we emphasised that constructive negotiating involves a balance of the many dimensions of negotiation — it is a skill that requires learning, practice and reflection to perfect.

Key negotiating points 4.45

The key negotiating points covered in this chapter are listed below:

Negotiation is an evolutionary and sequential process. It is sequential as negotiators pass through all the stages, and evolutionary as the negotiators build on their efforts in each stage to evolve to the next The earlier the better for information sharing. If reciprocal priority information sharing occurs in the first two stages of negotiating, this can then lead to better quality option generation and solution finding in the later stages Ask ‘why? and ‘why not?’ to separate interests from positions Generate before evaluating. Create value before claiming value. Suspend judgment, justification and ownership. Let creative juices flow to create value, before claiming value and choosing the best solutions Blend and balance. Constructive negotiators will reflect on their negotiating strategies, styles and skills to learn what works for them in constructive negotiation. There is no right or wrong way to negotiate constructively and using positional and interest-based strategies are equally legitimate. The art and science of negotiation is to blend and balance, and to use strategies, styles and skills in constructive ways to suit the particular negotiation

___________________________ 1.

W Adair and J Brett, ‘The Negotiation Dance: Time, Culture, and Behavioral Sequences in Negotiation’ (2005) 16(1) Organization Science 33 at 33–51.

2. 3.

W Donohue, cited in Adair and Brett, note 1 above, at 36. Adair and Brett, note 1 above, at 37.

4. 5.

D Lax and J Sebenius, cited in Adair and Brett, note 1 above, at 36. N Spegel, B Rogers and R Buckley, Negotiation: Theory and Techniques, Butterworths, Sydney, 1998 (the first edition of this book), at 69.

6. 7.

R Buckley, ‘Ten Rules of Hard Bargaining’ (2000) 3(4) ADR Bulletin 48–52. R Lewicki, ‘Trust and Distrust’ in A Kupfer Schneider and C Honeyman (eds), The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator, ABA Section of Dispute Resolution, Washington DC, 2006, at 197.

8.

You will also be sending three other signals — see Chapter 6 and the discussion on the ‘four-inone message’ at for further information. See note 1 above; M Olekans, P Smith and T Walsh, ‘The Process of Negotiating: Strategy and Timing as Predictors of Outcomes’ (1996) 68(1) Organizational Behavior And Human Decision Processes 68 at 77.

9.

10. N Rackham, cited in R Lewicki, B Barry and D Saunders, Negotiation: Readings, Exercises and Cases, 6th ed, McGraw-Hill-Irwin, New York, 2010, at 179. 11. J Weiss and S Rosenberg, ‘Sequencing Strategies and Tactics’, The Beyond Intractability Knowledge Base Project, G Burgess and H Burgess (eds), Conflict Information Consortium, University of Colorado, Boulder, September 2003, available online at (viewed 6 May 2015). 12. R Fisher, W Ury and B Patton, Getting to Yes: Negotiating Agreement Without Giving In, 2nd ed, Penguin, New York, 1991. 13. J Brown, ‘Creativity and Problem-Solving’ in Kupfer Schneider and Honeyman, note 7 above, at 407. 14. C Honeyman, cited in J Brown, ‘Creativity and Problem-Solving’ in Kupfer Schneider and Honeyman, note 7 above, at 412. 15. Adapted from R J Lewicki, B Barry and D M Saunders, Essentials of Negotiation, 4th ed, McGrawHill-Irwin, New York, 2007, at 46–7. 16. On crossing the last gap, see Chapter 9. See also J Wade, ‘The Last Gap (Gasp) in Negotiations — Why Is It Important? How Can it Be Crossed?’ (1994) 6(2) Australian Dispute Resolution Journal 92. 17. See the previous discussions on concession-making and opening positions at 4.10–4.13, especially at 4.11. 18. J Howieson, Family Law Dispute Resolution: Procedural Justice and the Lawyer–Client Interaction (unpublished D Phil thesis, University of Western Australia, 2008). 19. See note 5 above, at 78.

[page 83]

CHAPTER

5

Preparation and Planning Introduction A systematic approach to preparation Summary

Objectives of this chapter Demonstrate the importance of preparation in negotiation Introduce and work through a step-by-step preparation process for constructive negotiation Become familiar with the Negotiation Navigation Map as a visual preparation tool

Introduction 5.1 As the real estate mantra goes, ‘it’s all about location, location, location’. In negotiation, it’s all about preparation, preparation, preparation. Yet, this is an aspect of negotiation that is often neglected, particularly by inexperienced negotiators. Why? We conducted an informal survey of people attending negotiation courses and discovered a number of reasons for neglecting preparation, including: I ran out of time; I was not given any time to prepare; for example, the file landed on my desk

on the morning of the settlement conference; preparation is not as important as the main event; [page 84] there is only so much you can prepare — a lot happens at the negotiation table that you can’t predict; I’m a good negotiator, I know what I am doing, I don’t need to prepare; there’s no point in putting in too much time until we know what their position is; and I don’t know how to prepare. Some successful negotiators will say that while they may not always make it to the actual negotiation (they send a fully authorised representative instead), they will always take part in the preparation for the negotiation. A wellprepared negotiation will minimise the chances for surprises at the negotiation table. Even if the other negotiator produces an unexpected offer or piece of information, a comprehensive preparation strategy should indicate how you are able to respond. In this chapter, we offer a systematic approach for you to prepare for negotiation. We demonstrate how to use preparation tools to get the most out of the strategies, styles and skills explored in Chapters 2, 3 and 4. To this end, we introduce the Negotiation Navigation Map as a central preparation and reference tool.

A systematic approach to preparation 5.2 While the Negotiation Navigation Map is the centrepiece of the preparation toolkit, it sits within an overall methodology, which forms the basis of a systematic approach to preparation. We have also placed the methodology in a linear format for those who prefer the linear model. It contains five primary steps: 1. Map the negotiation using the Negotiation Navigation Map, in which

you: frame the negotiation; identify the parties (and stakeholders); identify interests; identify potential options; identify independent criteria; develop alternatives; define goals; define the bottom line; and 2.

identify more potential options. Analyse risk. [page 85]

3. 4. 5.

Diagnose the situation and design the way forward. Resolve logistics: who, when, where, what and how. Prepare yourself.

Step 1:

The Negotiation Navigation Map

5.3 The Negotiation Navigation Map, represented in Figure 5.1, draws upon the ideas of mind mapping which suggests that our brains can respond more quickly to the spatial connections represented in a visually networked map format than to a linear representation of the same material, such as lists of dot points. Moreover, with the aid of a Negotiation Navigation Map, we are able to absorb multiple levels of information simultaneously in terms of relationships of power, common and disparate interests, and the value of the offer on the table compared to goals and walk-away alternatives such as BATNAs (best alternative to a negotiation agreement), WATNAs (worst alternatives to a negotiated agreement) and MLATNAs (most likely alternatives to a negotiated agreement).

The Negotiation Navigation Map (the Map) is a part of the constructive negotiator’s preparation and reflection kit. The Map is most useful if you complete it in an authentic and inclusive manner, taking into account both yours and the other negotiator’s perspectives. There is no need to show it to anyone else during negotiations; it is a preparation tool that can guide you through the negotiation. Such an approach should provide you with the material necessary to develop an informed constructive negotiation strategy. What’s in the Negotiation Navigation Map? 5.4 The Negotiation Navigation Map canvasses all aspects of preparation relative to the negotiation process, the problem (subject matter of the negotiation) and the people involved in it, pulling all three issues together. As explained in Chapter 4, constructive negotiation draws upon the best of interest-based and positional strategies, and aims to maximise a negotiator’s ability to make wise decisions. For this reason, you will recognise process elements on the Map from both positional strategies, such as goals and bottom lines, and interest-based strategies, such as interests, options and alternatives. In terms of the people involved, the Map identifies not just the ‘official’ parties to the dispute and those at its centre, but all those with a stake in the negotiations. This inclusive approach to stakeholders broadens our understanding of the negotiation situation, its dynamics and potential coalitions — both transparent and hidden — that may influence the power relationships of the main players. The subject matter of the negotiation (the problem) is viewed through multiple lenses, and framed in an inclusive and neutral manner so that you can anticipate your forthcoming negotiation from all angles. [page 86] Figure 5.1:

Negotiation Navigation Map

[page 87] Too often negotiators are so convinced of their own positions and

arguments that they are unable to see what the other side sees. As discussed in the previous chapters, failure to move beyond your own position and acknowledge what is important for others will likely result in a positional negotiation with limited scope for creative solutions and good working relationships. The Map lays the groundwork for you to navigate your way through the most complex negotiations, and to do so in a constructive manner. How to Use the Negotiation Navigation Map 5.5 As a guiding principle to completing the Map, begin in the centre and work towards the margins. We begin with framing the negotiation. Frame the negotiation 5.6 Start in the centre by framing the negotiation. In Chapter 6, we examine the concepts of framing and reframing in the context of communication. Framing is about how you perceive the negotiation — how you think about it and talk about it. It involves the various dimensions of selfawareness and provides your frame of reference for the negotiation. How you frame the negotiation will influence how you perceive its scope and content, and who you think has an interest in it. To accommodate as many different perspectives and interests as is practically possible, the negotiation should be framed in as neutral, open and inclusive a way as possible. The more you know about the interests, needs, goals and desires of the other people and interest groups involved, in addition to your own, the better prepared you will be. This involves building your awareness of those immediately involved in the negotiation and of the larger negotiation context. For example, a native title dispute could be framed differently depending on one’s frame of reference. Potential frames could include: reclaiming Alawoona (an Aboriginal word for the land area meaning ‘summer’ or ‘heat’); protecting the farm; land rights; mining opportunities;

use of, and access to, the area known variously as Lot 5, RP 2010; and many others. These frames conjure up very different images of what the negotiation is about and this will influence how the Map is drawn. From the above list, the most inclusive frame of reference seems to be the fifth point above: ‘Use of, and access to, the area known variously as …’. It is likely to encourage the development of a multi-perspective Map. [page 88] Identify stakeholders: people and relationships 5.7 Next, think about the people involved in the negotiation. In most negotiations, there will be various stakeholders, other than the direct negotiators, who have the potential to play a significant role in the negotiation. Some of them may participate at the negotiation table, others will not; although they will continue to have an interest in, and the ability to, influence the negotiations. In the circles provided on the Map, include all the people and groups who have an interest in the negotiation, including yourself. Consider the following example: Sarifina is a talented lawyer who wishes to change law firms. Such a move would involve giving up her minor partnership equity in her present firm, at least some of her current clients and entering into a new partnership agreement with a competing firm. Stakeholders relevant to this negotiation may include: Sarifina; her current law partners and associates; a partner representative of her future firm; her current clients; other lawyers with whom she interacts; members of the bar association; professional and community boards and committees on which she serves;

and Sarifina’s family and partner. Not all of these people are likely to be at the negotiation table. However, it is important to consider their interests and how they may influence the negotiations. Stakeholders may share some common and compatible interests. They may also have interests that conflict with one another. These perspectives can provide valuable information about interrelationships among stakeholders, potential alliances and power dynamics in the negotiations. They can also help to frame the communications effectively.1 Interests 5.8 In the next stage, identify the interests of the negotiators and other stakeholders, and record these in the corresponding circle on the Map. Remember that interests refer to the needs, desires, fears and concerns of the identified stakeholders. Interests can be substantive, procedural, relational or principled. As far as possible — and this will depend largely on the information at your disposal — it is useful to prioritise interests in order of the least negotiable to the most negotiable. Remember also, when [page 89] prioritising, that the aim is to satisfy your own interests very well, the other negotiators’ reasonably well, and any other stakeholders’ interests adequately. Communication 5.9 As indicated previously, the interests and relationships among stakeholders (including the negotiators) will inform your communication with each of them. Prepared negotiators will ask themselves: ‘What messages do I need to get across about my interests, and what questions can I ask to test my assumptions about their interests and to help me to identify any interests that I haven’t thought about?’ ‘How do I ask these questions of one without upsetting the other?’

‘What can I say to show my respect for our relationship?’ ‘What can I say when I am asked the difficult question that I know is coming?’ There will be a myriad of communication questions and issues (verbal, vocal and visual), and it is best to identify and address these as part of your preparation rather than wait until you are at the table. Options 5.10 Having spent some time analysing the people, their relationships and interests, and the most effective way to communicate, it is time to begin thinking about potential options for negotiated outcomes. Record these in the boxes around the inside edge of the map. It is important to keep in mind that these are nothing more than ideas for outcomes (possible solutions) and, in most cases, will be subject to considerable review. Leave space for more ideas. You will revisit the options before you complete the Map. Once you have finished the inner square of the Map, it is time to move to its outer perimeter. Independent criteria 5.11 The left-hand column entitled ‘Independent Criteria’ provides space for negotiators to list potential objective criteria, precedents, quotes, benchmarks and other standards that they or other influential third parties might identify as relevant. The arrow pointing right indicates that you bring objective criteria into the negotiation quadrant. Constructive negotiators will use independent criteria to inform the making of offers in negotiation and to evaluate options — to decide when to preserve workable options, and when to discard those that are not feasible. Alternatives 5.12 On the right-hand side is a column with a number of headings wellknown to interest-based negotiators: BATNA, WATNA and MLATNA [page 90]

(see 5.3). The arrow pointing right indicates that these are alternatives that might be available should you walk away from the negotiation. Identifying the various alternatives to reaching an agreement is imperative for making informed decisions about the wisdom of accepting offers on the table. Thus far, the preparation has followed interest-based negotiation principles. The next two parameters of the Map (top and bottom) shift to a positional perspective. Goals 5.13 The top parameter asks negotiators for their aspiration level, wish list or goal in relation to the negotiation. As explained in Chapter 2, your goal is what you aspire to but do not necessarily expect to get. At the same time, Chapter 10 shows us that goals can be a useful anchor in the negotiation process. Goals provide negotiators with yet another measure for judging how the negotiation process is progressing, particularly during option generation, concession-making and bargaining. Bottom line 5.14 The bottom line is an essential element in the positional negotiator’s toolkit. It is aptly represented by the bottom line of the Map. As with the other parameters, negotiators can compare the offer on the table with their bottom line — that is, the minimum they are prepared to accept or the most that they are prepared to give. As negotiators approach their bottom line, their walk-away alternatives become increasingly likely to eventuate. The bottom line and walk-away alternatives are the two dimensions of the Map that inform negotiators ‘when to hold ’em and when to fold ‘em’; in other words, when to keep negotiating and when to walk away. Identifying more potential options 5.15 The first round of identifying potential options takes place within the inner part of the Map and before you consider your own parameters of independent criteria, walk-away alternatives, goals and bottom line. It’s important to revisit the options at this point for two reasons: first, to add

additional ideas and options, and second, to undertake a preliminary evaluation of options in light of the parameters of the Map.

Step 2:

Risk analysis

5.16 We refer to the importance of, and the benefits associated with, using a risk analysis throughout this book. Significantly, risk analyses can help to minimise the risk of being caught out by common negotiating traps such as focusing on the wrong anchor, relying on false assumptions, protecting earlier choices, and refusing to let go of sunk costs. We consider these [page 91] negotiating traps further in Chapter 10. In this section, we explain what is involved in a risk analysis and when you might use it during negotiations.2 A risk analysis is a documented assessment of the risks associated with choices that you may make in the course of negotiations. There are many different forms of risk analysis depending on the nature and complexity of the negotiations. Risk analyses generally require you to respond to itemised headings — sometimes in question form — relating to different areas of risk. A monetary quantification of the risk may also be required; alternatively, you can rank risks in terms of your level of concern in relation to them. Finally, risk can be assessed in terms of how it impacts on your life goals. The Life Goal Analysis of Risk provides another dimension to your assessment by asking you to reflect on important goals in your life and how the continuance of the conflict is affecting your ability to fulfil these goals. Risk analysis tools vary in complexity. They can be useful tools for parties to assess the risks associated with choices they may need to make in negotiation. For example, in Sarifina’s negotiation outlined at 5.7, Sarifina will be asking herself how the offer or option will affect her: day-to-day professional life; financial health; professional reputation and relationships;

career prospects; mental and physical health and well-being; personal relationships; and private life, leisure time, hobbies and non-work time. An abbreviated risk analysis visual based on Sarifina’s negotiation might look something like Table 5.1. Table 5.1:

Abbreviated Risk Analysis Visual3

Goals To have a better work/life balance

This Offer? Yes No To grow reputation among (potential) clients as a specialist Yes lawyer No

[page 92] Table 5.1:

Abbreviated Risk Analysis Visual — cont’d

Goals To generate more revenue through legal work and increase own income stream To have a say in shaping the business development of the firm in which I work To be a full equity partner in a law firm To enhance professional reputation among peers

Step 3:

This Offer? Yes No Yes No Yes No Yes No

Diagnosis and design

5.17 Once you have completed the Negotiation Navigation Map, you should have sufficient information to begin to diagnose the situation and design a way to move forward in the process. Drawing on the information you have already gathered, ask yourself the following questions — the answers will form the basis of your approach to the negotiation:

What is the conflict, dispute, problem, dilemma, impasse or situation really about? Think about interests here. What are the causes of the conflict or impasse? Refer to Moore’s model in Chapter 7. Do any of the causes relate to: – competing interests; – unequal, unfair or disproportionate division of resources; – communication or relationship difficulties; – different data or information available at the table; or – different values, beliefs or world views? Consider the causes of conflict or impasse, not only from your own perspective but also from the perspectives of the stakeholders. Consult your completed Negotiation Navigation Map for assistance. How do the causes of conflict contribute to the continuation of the conflict? What obstacles are preventing striking a deal or resolution of the conflict? How can the negotiators overcome these obstacles and move forward? In relation to possible concession-making in the bargaining phase of the negotiation, can you design a number of different potential scenarios with varying openings and size and number of concessions? This way you are prepared for different concession-making approaches by the other negotiator. How can the negotiators deal with disagreements that emerge in the course of the negotiation? [page 93] Consider process options. Check that negotiation is the most suitable process — don’t assume it is. Are there other forums such as mediation, facilitated dialogue, neutral evaluation, arbitration or even litigation that may be more appropriate? If negotiation is the most suitable process, determine your strategic approach. Based on the information that you have collected and your

analysis of it, how do you want to approach the negotiation? Think about the four phases and ten steps of the Constructive Negotiation Model presented in Chapter 4.

Step 4:

Logistics (who, where, when, what and how)

5.18 It is easy to gloss over the logistical detail of a negotiation. However, the practical aspects of a negotiation are essential to creating a constructive environment in which to implement your negotiation approach, and make use of all the preparation that you have done so far. You can remember the essentials of the logistics on the fingers of one hand: who, where, when, what and how. Who 5.19 You have already identified the relevant stakeholders within the Negotiation Navigation Map, so you know who is directly and indirectly involved in the conflict or transaction. Their interests and influence 5.20 As part of negotiation planning, consider the interests and needs of stakeholders who have the ability (and interest) to influence the process and the outcome of the negotiation. Locking interested parties out of the negotiation or not informing them about forthcoming negotiations is rarely a satisfactory long-term strategy. Even if they do not participate in the negotiation, these stakeholders may be able to interfere with the implementation of a negotiated agreement. Take the example of Kelly and Chase, who have recently separated and are now negotiating parenting arrangements. While Kelly and Chase are the two main negotiation parties, another person with an interest in the negotiation is Chase’s new partner, Jamie. Jamie and Kelly do not see eye to eye and have come very close to exchanging physical blows on the footpath of the house Jamie now shares with Chase. Should Jamie’s interests and concerns be ignored throughout the negotiation process, their frustration may manifest itself through interference in Kelly and Chase’s negotiated parenting agreement. For example, Jamie may refuse to let Kelly in the house or may create an otherwise difficult climate

during handover, which in turn could lead to the escalation of conflict and a breakdown of the parenting arrangement. [page 94] Their input 5.21 In deciding whether or not to invite certain stakeholders to be involved in the negotiation, remember that people can have input into the negotiation in a number of ways. They can: attend the negotiation, or part of it, in person; attend in person as a negotiating party, observer with (un)limited speaking rights or observer without speaking rights; be available by phone or video link; prepare a written statement or opinion to be circulated at the negotiations; or have their interests made known to the negotiation parties by one of the negotiators. Don’t assume that everyone must attend in person and for the entire length of the negotiation. Decision-makers 5.22 In relation to negotiating parties, it is important that individuals with authority to make binding decisions attend the negotiations. In the few cases where this may not be possible, then make acceptable alternative arrangements. For example, where a large organisation needs ratification from its board for major decisions, then the board should make itself available at an appropriate time to ratify decisions reached at the negotiation. Sending people without appropriate authority to the negotiation is sometimes used as a stalling technique,4 and so the issue of authority should be negotiated and arranged during preliminary discussions. In addition, some parties work as part of a negotiating team and may bring

team members such as experts, legal representatives, recorders, observers, process facilitators and translators to the negotiation table. We consider negotiation teams in Chapter 11. Getting the parties to the table 5.23 Once you have decided who you would like to have at the negotiation table, you will need to get them there. Depending on the circumstances, this may involve convincing reluctant stakeholders to attend, and persuading other negotiation parties to accept their participation. Let’s consider Simon’s conflict with his former housemate, Mike. Mike left the state without telling anyone, leaving Simon, as the lessee, with a bill of $10,500 for unpaid rent and repairs for the damage Mike [page 95] caused to the fireplace. Simon does not feel that he should have to pay this amount to the owner and that it is Mike’s responsibility. The owner does not care who pays but suggests that, as the lessee of the property, Simon has a legal obligation to pay the $10,500. Now Simon has a conflict with the owner as well. Simon has phoned Mike and suggested that the two of them set up a Skype conference to sort out these issues. Mike, who is now living in another part of the country, is reluctant to negotiate. What can Simon do? 5.24 There are five tactics for getting reluctant parties to the negotiating table: 1. The carrot The parties need to know what’s in it for them — so tell them, and dangle the carrot in front of them. In the same way as we need to communicate in a way that relates to, and motivates, the other negotiator to listen, so, too, we must provide incentives for others to participate in negotiation. Incentives can relate to aspects of the negotiation process such as offering to host the negotiations, pay for the venue and refreshments and, where a facilitator has been engaged, the associated professional fees. Incentives can also relate to the content of the dispute.

2.

In transactional negotiations, such as joint-venture developments, goals which promise tangible benefits can make others take notice. Finally, negotiation incentives can relate to emotional aspects of the situation where, for example, someone is promised a voice or a platform, which is not otherwise available to them, or there is an opportunity to involve support people and others in a way that is not possible in more formal forums such as court. The stick Warn the parties of the risks if they don’t attend. People sometimes think that as long as they don’t participate, the status quo will remain the same and they won’t be required to do or change anything. Pointing out what they stand to lose can be an effective tactic in these circumstances. Mike may be unaware of his legal obligations in relation to the rent and the damage he has deliberately caused to the house, and he may need to be reminded of his moral obligations in this regard too. But it’s not only legal action that he risks and money that he stands to lose. Mike and Simon grew up together. Mike also stands to lose his long-standing friendship with Simon and Simon’s family — something he probably hasn’t thought through. While Simon may not be able to communicate this directly to Mike, there may be others in their circle of friends and family who can do this. This last point is discussed below in relation to building your power base. [page 96]

3.

Appeal to their need to belong Most people don’t like to miss out. According to Maslow, we all have a fundamental need to belong.5 So even if the dangling carrot tactic discussed above is not effective, you may be able to generate enough interest in the negotiation from other stakeholders, such that reluctant parties may simply not be able to stay away. Imagine how Mike will feel when he discovers that Simon, Simon’s sister Julie, Mike’s girlfriend Mia, and even Mike’s Dad are planning a Skype conference to talk about the

4.

5.

unpaid rent and damage to the house? He is likely to feel shocked, and angry at Simon: ‘How dare he go behind my back and arrange a meeting — and with Mia and my Dad! Knowing Simon, he’s going to try to get the money out of Dad. How low can you get?’ Rather than let everyone talk about him behind his back, Mike will probably go online for the meeting. In business and workplace contexts, the principle remains the same. If you can’t get the one person you really want to the table, try getting the other key players to participate and set a date for the negotiation. You may be surprised at how reluctance transforms into motivation. Similarly, if you are having difficulty encouraging a particular organisation to show interest in your product, get their competitors interested. The organisation may show more interest when they have the additional motivation to stay ahead of their competitors. Build a power base first Are there others with greater influence than you? Mike’s partner, Mia, is a law student and a good friend of Simon’s sister, Julie. The two young women are appalled when they hear what has happened. They get together to discuss how to get Mike to talk to Simon. Mike appears more receptive to Mia’s suggestions to negotiate with Simon, especially when she offers to sit in on the Skype conference with him and help him make some decisions. Stop trying, sit back, and wait for the right time As discussed below, the timing may not be right for someone to engage in negotiation. For example, there might be other things going on in that person’s life that are taking priority. In the case of a dispute, there may still be a lot of anger and resentment present, or the reluctant party may simply not be prepared. Find out what you can and consider whether changing the timing of the proposed negotiation might help. [page 97]

Who should know? 5.25

Finally, the question of who should be involved in the negotiation

raises another question: who should and should not know about the negotiation? In other words, to what extent does the negotiation need to be confidential? When, for example, you are dealing with trade secrets or a dispute that could end up in litigation, confidentiality can be very important. You should consider documenting the parties’ understanding of confidentiality at the start of the negotiation. Where 5.26 In terms of a negotiation venue, you will need to consider numerous factors including the following: What sort of office or boardroom facilities will you need to access? What about meals and refreshments? Sometimes it is nice to be able to leave the negotiation environment and go to a nearby restaurant for a meal. What about transportation? How will people travel to the venue? For those who are driving, is parking available? Is there a budget for costs associated with the venue? Is a neutral venue important? Will one party feel uncomfortable if the other offers his offices for the negotiations? What level of formality is desirable? Will a boardroom or a lounge room be more conducive to negotiations? 5.27 Seating arrangements can also influence negotiation dynamics. So take control of them, rather than letting random seating influence the course of your negotiation: Round tables are good for collaboration, creativity and problem-solving. All participants at the table can see and talk to each other without difficulty. Round table seating does not dictate a ranking, and therefore encourages all participants to engage in the process. However, if the negotiators want to use a whiteboard or screen, then some people will have their backs to the board and will need to adjust their seating. Rectangular tables are formal and can suggest a ranking. The most powerful seating position is at the head of the table facing the door; the next most powerful position is to the right of the head position; and the third most

powerful position is to the left of the head. In terms of seating, the weaker positions are in the middle of the long sides of the table, as it is most difficult to see, and to be seen, in these positions. At the same time, if you want to encourage a sense of equality and collaboration at a rectangular table, try placing the senior people [page 98] in the weaker seats. It suggests a facilitative style of leadership and negotiation. Seating in one-to-one negotiations also involves some choices. Sitting opposite each other is a frequent default seating arrangement for negotiators. You can’t help but look directly at the other negotiator. This arrangement can be very confronting and some negotiators may find it intimidating. It can also be difficult to view documents at the same time. Another alternative is to sit side by side. This arrangement is very cooperative and makes joint viewing of documents very easy. However, it is difficult for the negotiators to make eye contact, unless they both turn their heads to face each other. While sitting side-by-side may be a position that some parties move into later in the negotiations, many will feel uncomfortable using it up front. Yet another seating arrangement involves parties sitting at right angles to each other, usually with the corner of a desk between them. You will often see this arrangement in medical clinics when you have a consultation with your GP. Right-angle seating avoids the confronting nature of the first arrangement and the premature cooperativeness of the second. In addition to facilitating joint viewing of documents, right-angle seating allows negotiators to make eye contact easily, or to choose not to. When 5.28 Timing and time frames need to be carefully considered. Negotiation is only the right process when you conduct it at the right time. If you negotiate too early in a conflict situation, the other party may still be angry and unprepared to problem-solve; if you negotiate too late, the other party may feel that it has invested so much in the conflict and, pending litigation, to

negotiate now would be capitulation. Deciding when the time is right and ‘ripe’ for negotiation is always a judgment call. Make sure you set clear and sufficient time frames for the negotiation and get all participants to agree to these time frames, preferably in writing (such as a reply email). In this way, participants are well aware of how much time they have for different parts of the process. You can always renegotiate time frames, so err on the side of generosity; it is easier to go home early than to get people to stay later. What 5.29 What should you bring with you to the negotiation table? This will always depend on the circumstances of the negotiation and the information that you may need to access. Don’t make assumptions about what everyone is bringing to the negotiation. Talk about it during your preliminary discussions and record your agreement. [page 99] If you have access to computer, internet and office facilities, it may be a good idea to have all of the documentation relating to the negotiation accessible, including the documents you accessed and created during preparation. You can print out what you need when you need it. In some cases, it will be useful to prepare an issues paper and exchange this with the other negotiators beforehand. It should be very short — one page, if possible. An issues paper is nothing more than a list of the main issues, themes, topics or points that each negotiator thinks will need to be talked through at the negotiation table. Exchanging issues papers allows all negotiators to reflect on what is important for them and for the other negotiator. How — meet, ring or write? 5.30 In many situations you will have a choice as to the communication medium through which to conduct the negotiation. Electronic media —

video conferencing, email, texting, and cloud-based document sharing — are increasingly common forums by which to conduct negotiations.6 Take the time to think through your options and the advantages and disadvantages of each. Table 5.2 compares negotiation conducted face-to-face, by teleconference or by email. You can combine different media in your negotiations. Most of us do this without thinking about it. We use email to make initial contact, then we schedule a telephone call followed by a meeting during which we do some more phoning and emailing to confer with the other, and so on. Once we reach agreement, we document it and send it back and forth — or create a shared cloud document — until everyone is happy with the wording. Imagine how much more effective you could be by making calculated choices about the communication media mix in your next negotiation. Table 5.2:

Communication Media in Negotiation — Face-to-Face, Teleconference, Email Correspondence

Impact on Cost Speed Communication

Face-to-face (f2f) High, especially where travel is involved Medium Vocal, verbal and visual communication (‘media rich’)

Teleconference Low/Medium

Email Low

Fast Visual element is missing — easier to get away with lies than in f2f

Slow Verbal (words) communication only — can be limiting

[page 100] Table 5.2: Impact on

Feedback

Communication Media in Negotiation — Face-to-Face, Teleconference, Email Correspondence — cont’d Face-to-face (f2f)

Teleconference

Promotes in-depth communication

Easy to be distracted and does not promote in-depth discussion Synchronous fair — but visual

Synchronous Good — can see and

Email in terms of expression and understanding

Asynchronous Generally poor and,

hear to clarify meaning and feelings Flexibility and creativity

element missing

High potential for Some scope for flexibility and creativity; flexibility and creativity optimal for collaboration and problem-solving Good for starting, Good for maintaining building, mending — but can be stressful for client if present

Relationship

Time frames

Important to set sufficient time aside, otherwise can create artificial time frames (eg, plane to catch)

Status

Tends to emphasise status differences (office, clothing, and so on)

Important to set sufficient time aside — usually possible to arrange another teleconference if more time needed Reduces status differences based on visuals and environment

when given, it is usually formal or difficult to interpret Least flexible and limited potential for creativity

Good for keeping on a formal level — however, in conflict situations may encourage parties to dig their heels in; increases risk of contentiousness Usually working within longer time frames; can be used to avoid and delay

Reduces status differences even more

[page 101] Table 5.2:

Communication Media in Negotiation — Face-to-Face, Teleconference, Email Correspondence — cont’d

Impact on Consultation and decision-making

Record

Face-to-face (f2f) Need to create time and space away from main negotiation to confer and make decisions; can be difficult to confer with members of team who are not present Depends on

Teleconference Requires clear structure for negotiation, including space between calls to consult and make decisions — otherwise, can put time pressure on decision-making Generally no formal record, unless the parties record the

Email Generally more time available for consultation and decision-making

Provides formal record

Saying ‘no’

whether/how session is conversation monitored

— so need for precision and care

Can be hard to say ‘no’ Generally easier to say ‘no’ than f2f

Easiest to say ‘no’ because no immediate response (unless you are in an online chat room)

Step 5:

Prepare yourself

5.31 Last but not least, it is important to prepare yourself for negotiation. Here we give you some tips on how to get yourself physically and mentally ready before the negotiation begins. Limber up the creative side of your brain. You might know that the left side of the brain manages your logic, analysis, numbers and language capabilities, while the right side of the brain is responsible for the more creative functions.7 You might want to do some brainteasers or other brain exercises to question your assumptions, unpack any stereotypic thinking, develop new frames, and increase your flexibility and mental dexterity.8 De-stress — become mindful. You can derive great negotiation power from learning how to de-stress and become mindful. In Chapter 1, we discuss the qualities of reflexive practice, including the value of building multiple levels of awareness. In Chapter 8, we [page 102] discuss how when we are stressed, we lose our ability to think clearly and can give over to our strong emotional pulls and cravings, and can react too quickly to our feelings and thoughts. A wise and mindful negotiator will take some time before a negotiation to calm the mind and body, using simple meditative or mind/body techniques. Even just taking a walk or stopping to consider your breath might be ways of becoming mindful of your own emotions and mental influences. You can also try these two techniques below.9

1.

This simple technique, developed and taught by the Stress Reduction Clinic at the University of Massachusetts Medical School, comprises the following steps: Stop whatever you are doing or thinking. Take a breath. Observe and become open to your breath, bodily sensations and emotions. Also observe and be open to all the senses and the external environment. Proceed.

2.

Focus your mind on the centre of your body, just below your navel. Take a breath and count backwards from three to one before exhaling. Repeat three times. Using your centre point as your focus, this technique will help you to rebalance your mind.

Build rapport. Research shows that even just a few minutes of building rapport before the negotiations begin can go a long way.10 Have you ever had the experience of going for a series of job interviews and getting the job that was related to the interview where you spent the most time chatting with the interviewer? This could be explained by the power of rapport building. In her research, Nadler found that: Negotiators who spent just five minutes chatting on the phone — without discussing issues related to the upcoming negotiation — felt more cooperative toward their counterparts, shared more information, made fewer threats, and developed more trust in a subsequent e-mail negotiation than did pairs of negotiators who skipped the telephone small talk.

Rapport building is an important part of the pre-negotiation process and it is often a good idea to find a way of ‘breaking the ice’ or making a connection before you begin negotiating. If you focus your curiosity on the other negotiator as a person, this should not be hard to do. [page 103] Even a quick ‘could you please tell me again where the café is that we are meeting at?’ is a neat little trick to get things started.

Summary 5.32 Preparing for negotiation the constructive way involves planning in a manner that is systematic, inclusive and creative. In this chapter, we

introduced you to a five-step preparation model, which contains a variety of tools, maps and checklists for you to use: Step 1 — complete the Negotiation Navigation Map, which involves exploring the parties and stakeholders, their interests and relationships and issues of communication, before identifying goals, bottom lines, independent criteria, alternatives and finally generating potential options. Step 2 — undertake a Life Goal Analysis of Risk. Step 3 — diagnose the situation and design the way forward. Step 4 — plan the logistics: who, where, when, what and how. Step 5 — prepare yourself physically and mentally.

Key negotiating points 5.33

The key negotiating points covered in this chapter are listed below:

Prepare, prepare, prepare. We have said it before and we will say it again: preparation is an essential successful negotiating skill. Map the negotiation. Negotiations are multi-dimensional and can be complex; therefore, mapping the negotiation can assist to simplify things. The Negotiation Navigation Map is a central part of the constructive negotiator’s toolkit. Document the risks. Document the risks to minimise the risks. Constructive negotiators know the risks involved and how these might interfere with their life goals. They are prepared for the worst that can happen and they are prepared to avoid it. Diagnose and design. Once you know the terrain and the risks involved, you can diagnose the situation and design the way towards a constructive negotiation. Remember who, where, when, what and how. Diagnose, design and then prepare the practical aspects of who, where, when, what and how, to create a constructive environment. Prepare, prepare, prepare. As any successful athlete will tell you, the warm-up is essential. Prepare yourself mentally and physically for successful constructive negotiation.

___________________________ 1.

On framing in communication, see Chapter 6; on framing to influence, see Chapter 8.

2.

3.

The section on risk analysis is drawn from the work of Wade. For further examples of risk analyses, see J Wade, Systematic Risk Analysis for Negotiators and Litigators: How to Help Clients Make Better Decisions, Dispute Resolution Centre Resources, Bond University, Queensland, 2004. The table is based on Wade (2004), note 2 above, at 23.

4. 5.

On lack of authority to settle as a hardball negotiating tactic, see Chapter 10. See Abraham Maslow’s hierarchy of needs: A Maslow, ‘A Theory of Human Motivation’ (1943)

50(4) Psychological Review 370–96. 6.

7. 8. 9.

For a detailed discussion of the now common use of email for negotiation, see N Ebner, ‘Negotiating via (the New) Email’ in M Benoliel (ed), Negotiation Excellence: Successful Deal Making, 2nd ed, World Scientific Publishing, Singapore, 2014, ch 24. Refer to Chapter 8 for a more detailed explanation of the brain. C Menkel-Meadow, ‘A-ha? Is Creativity Possible in Legal Problem-Solving and Teachable in Legal Education?’ (2001) 6 Harvard Negotiation Law Review 97 at 121. L Riskin, ‘Knowing Yourself: Mindfulness’ in A Kupfer Schneider and C Honeyman (eds), The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator, ABA Section of Dispute Resolution, Washington DC, 2006, at 247.

10. Janice Nadler, cited in ‘How to Build Trust at the Bargaining Table’ (2009) 12(1) Negotiation Newsletter (Program on Negotiation, Harvard Law School) at 2.

[page 105]

CHAPTER

6

Negotiation: larger-than-life communication Introduction The Negotiator’s Four Meanings in a Message (or the negotiator’s four tongues) The negotiator’s four listening ears Active listening More communication skills for negotiators Summary

Objectives of this chapter Consider the power of effective communication skills in negotiation Examine the four-meanings-in-a-message model of communication Discuss verbal, vocal and visual modes of communication Explore and practise active listening skills Explore and practise framing and reframing skills Explore and practise questioning skills Learn how to negotiate with ‘four ears’ and ‘four tongues’

Introduction 6.1 Two siblings, Mia and Tom, have inherited their father’s house. However they seem to have different ideas about what to do with it. Tom has indicated that he just wants to leave the place as it is, while Mia is worried about the [page 106] tax implications of just leaving it and wants to make a decision about the future of the house. For many months now they have avoided discussing the topic and defaulted to discussions on other topics. One day at work, Mia picks up the phone and calls Tom. She suggests they make a time to meet for coffee and talk about what to do with the house. Tom is silent for a moment and then says quietly: ‘I think you should just decide yourself.’ You would be forgiven for thinking that Mia might be relieved to hear this news — problem solved; she can decide. But that’s not the case at all. Mia is speechless. Surprised. Shocked. Frustrated. Angry. All at once. So, what just happened in that conversation? In order to be able to respond to this question, we need to bring the skills of the reflexive negotiator into play. As explained in Chapter 1, this means developing an awareness of: 1. ourselves as communicators. What are our default communication practices, preferences and habits? How do we package our messages? What patterns are observable? How do we listen and what do we hear (and not hear)? 2. others as communicators. What seem to be their default practices, preferences and habits? What seem to be their default communication patterns for getting their message across? Conversely, what do they pick up on when they are listening and what do they not seem to hear at all, no matter how often you say it. 3. the context that influences the communication patterns and dynamics referred to in 1 and 2 above.

This chapter is an opportunity to deeply reflect on your own communication patterns in a structured way with a view to further developing your communications skills and aligning them with your negotiation style and strategic approach. Start by thinking about a past, or ongoing, difficult conversation. Recall what happened, or has happened so far, and who said what. Keep this in mind as you work through this chapter. 6.2 Negotiation is larger-than-life communication. It’s larger than life because every single thing we do — and don’t do — sends a signal to the other negotiator. Whether we are sitting silently and sullenly with our arms crossed, not saying a word, making small talk at a party, or speaking passionately about an issue to an attentive audience, we are communicating all the time. Whether we are face-to-face, on Skype or the phone, texting, chatting, emailing, we are always sending explicit and implicit signals and we do so intentionally and also unconsciously. So it’s worthwhile taking a closer look at communication and how to master it. In this chapter, we assume a face-to-face setting unless we indicate otherwise. 6.3 You may be familiar with the following sender–receiver model of communication represented in Figure 6.1 below. Negotiators wanting to send [page 107] a message (senders) do so with a particular intention using a combination of verbal, vocal and visual modes of communication. Negotiators who are listening to or receiving the message (receivers) interpret the various parts of the message to make meaning of it. Because the intention of the sender in sending the message does not always match the impact the message has on the receiver, a good communicator will provide the sender with feedback. Through active listening, the receiver can let the sender know: how they have understood various aspects of the message and confirm that this corresponds to the sender’s intention; how they feel about the message as they’ve interpreted it; and what they will do as a result of the message.

Figure 6.1:

Basic Sender–Receiver Model1

Of course, in real life, negotiators engage in a complex dance of sending and receiving messages and constantly combine sender and receiver roles. In this chapter on communication, we slow down and isolate this dynamic in order to better understand and improve our ability to communicate as negotiators. This is the first step to building awareness of self, other and context. [page 108]

The Negotiator’s Four Meanings in a Message (or the negotiator’s four tongues) 6.4 If we look closely at Tom’s statement, we discover that there is more than one meaning in the message that he sent. This is because every time we communicate we are speaking with various and diverse inner voices. These inner voices combine to send what is ultimately a highly complex message, no matter how simple and straightforward it may appear. To explore this idea, let’s revisit Mia and Tom’s interaction in 6.1. On the face of it, Tom’s message seems to be that ‘Mia should make the

decision about the house’. However, Mia seems to be responding to a different message. The message to which she reacts seems to be something along the lines of: ‘Well, Mia, you’ve decided what you want to do anyway, so there is no point me wasting my time bringing in other ideas. It’s a fait accompli!’ But that’s not what Tom said. Or is it? German communication psychologist Schulz von Thun has spent much of his life delving into the intricacies of interpersonal communication and helping people to master the art of communicating with one another. In the course of his work, Schulz von Thun found that communicated messages contain four different meanings. These are represented in Figure 6.2 by the four pieces of the Four-Meanings-in-a-Message Puzzle. Figure 6.2:

Four-Meanings-in-a-Message Puzzle

[page 109] If we use Mia and Tom’s opening interaction as an illustration of the FourMeanings-in-a-Message Puzzle, it might look something like Figure 6.3, as explained below:

Figure 6.3:

1.

2.

Four-Meanings-in-a-Message: Tom’s Message to Mia

Information. At one level, a message contains information. This information may be true or false; it may be explicit or implicit. Here Tom’s states ‘I think you should just decide yourself’. His informational tongue is saying, ‘Yes, a decision needs to be made about the house and you, Mia, should make it’. Self-disclosure. Another part of the meaning of the message discloses something about the person sending the message. For example, Tom seems to be communicating a sense of reluctance about being involved in the decision-making process. He could be implicitly sharing a feeling of being overwhelmed by the need to make pragmatic decisions about the house while still mourning his Dad’s passing. Perhaps he is disclosing a deep paralysis and inability to act in the whole situation. Self-disclosure information is often, although not always, implicit. As such it can be revealed by the tone of the sender’s voice (vocal), body language and eye contact (visual). It can be gleaned not only from what [page 110]

is said, but also from what is not said — the little things that we choose to include (or not include) in our message. 3. Relationship. Yet another meaning in the message is about the relationship between sender and receiver. This meaning in the message communicates how the sender feels about the receiver and how the sender views the nature of the relationship between them. Receivers can be particularly sensitive to this side of the message. Relationship meanings are often sent implicitly through subliminal vocal and visual communication channels. In addition, choice of language can reveal how the sender perceives the receiver. For example, senders may use sophisticated language when they think they are dealing with an articulate and educated receiver or, alternatively, where they seek to impress (or even intimidate) the receiver. The relationship meaning in Tom’s message might be, ‘You (Mia) don’t care at all about what I think and you’ll go ahead and do what you want anyway’. 4. Request. Nearly all messages contain an explicit or implicit request to do, or desist from doing, to think or to feel something. This is the final and fourth side of the message. For example, Tom’s implicit request might be, ‘Don’t take me for granted. Take me seriously’. What this means is that each time we are communicating with someone we are speaking with four tongues, even if we think we are speaking with just one. Figure 6.4:

Speaking with Four Tongues

In a negotiation context this insight has important implications. We know that the other negotiator is intently trying to read us, to determine our status, [page 111] credibility, authenticity, flexibility and other factors. A good negotiator is likely to be focused on all four parts of the Four-Meanings-in-a-Message Puzzle. Therefore, we as senders of the message need to think carefully about how to package and convey not just one but all four messages with our four negotiating tongues. How do we do this?

Implicit and explicit messages 6.5 The previous discussion shows that the words we speak are only part of the message. An analysis of Tom’s statement, ‘I think you should just decide yourself’, has brought forth four very different meanings. This is because messages can be explicit or implicit, or a combination of both. Explicit messages are directly communicated. For example, when your mother-in-law says, ‘Can I join you on your family holidays this year?’ this is an explicit piece of communication, which directly communicates your mother-in-law’s desire to join you on the family vacation with your spouse and children. However, had your mother-in-law wanted to be more subtle and indirect about the

holiday issue, she might have elected to send the message implicitly. For example, she may have waited until you were discussing family holiday plans, and then sighed deeply and uttered something like, ‘Ah, I had not even thought about holidays this year. Let me ask the travel agent for a recommendation that’s suitable for an old lady travelling on her own …’. Here the implicit message (‘Don’t leave me here on my own. Please take me on holidays with you’) has quite the opposite meaning to the actual words uttered, which at first glance seem to indicate a desire to organise a solo trip. Implicit messages are sent indirectly rather than directly, opaquely rather than transparently, and are to be understood in context. They may be strategic, conscious and manipulative efforts on the part of the sender. Alternatively, they may be a subconscious, or at least unplanned, manifestation of the sender’s interests and goals. The important task here is to identify the underlying meanings. At the start of this chapter, we noted that messages are sent by a combination of verbal, vocal and visual modes of communication. The critical parts of implicit messages are generally sent by non-verbal signals which consist of: vocal cues such as tone of voice, pitch, pace, volume and inflection; and visual cues such as body language, physical appearance, attire and environment. All behaviour has a communicative quality. No matter how hard we try, we cannot not communicate. Non-verbal signals alone can constitute implicit messages. For example, consider the following unpleasant negotiating [page 112] moment for a junior lawyer, Andrea, where the representative for the other party is a senior practitioner. As Andrea walks into the room, the senior lawyer’s glaring and intense silence seems to convey the following messages set out in Figure 6.5: Figure 6.5:

Non-Verbal Meanings in a Message

As you can see yet again in Figure 6.5, many messages are lurking in the non-verbal cues as explained above. Together, implicit and explicit messages make up the four parts of the Message Puzzle. Where all four messages are congruent, the chances of intention matching impact — at least from the sender’s perspective — are maximised. However, people often send an incongruent message, which makes the receiver’s task of understanding the meanings within the message challenging. Have you ever been in the situation where you understand the informational message, and on paper everything seems to be in order, but you are plagued by a nagging feeling that something is not quite right? Yet you cannot put your finger on it … Usually, this feeling is a signal that the four-inone message is not congruent. Although, intellectually, some of us may disregard the influence of non-verbal communication, subconsciously we are profoundly affected by it. As human beings, we may have mastered the art of manipulating verbal communication in the form of misleading and deceptive verbal messages; however, our bodies, and even our voices, send out signals that give many of us away. Consider the following example in Figure 6.6 where Max is negotiating with a potential corporate client. [page 113]

Figure 6.6:

Incongruent Meanings in a Message

Max says: ‘Yes, absolutely. We can run your entire corporate training program, starting immediately. Not a problem.’ The four meanings in Max’s message are represented in Figure 6.6. This message is communicated through visual, vocal and verbal communication. In terms of visual communication, Max is leaning forward, displaying an over-eager attitude as his potential client leans back in a relaxed and deliberate manner. In terms of vocal communication, Max’s voice has taken on a higher pitch than normal, indicating nervousness. In addition, his palms are sweating a little, a fact the client notices when they shake hands. This message is communicated through visual, vocal and verbal communication. The visual signals of leaning forward and sitting on the edge of his seat for most of the discussions, combined with incessant fidgeting with a draft contract, communicate the pressing nature of Max’s request for a signed agreement. Vocally, the urgency of Max’s request is conveyed by his higher than usual pitch and fast vocal pace, accentuated by his need to drink copious amounts of water to alleviate a dry mouth. Verbally, the reference to starting ‘immediately’ provides a prompt to consider contractual formalities at this meeting. When you sense incongruence, trust your intuition and respond to it —

don’t ignore it! You may need to unpack the different explicit and implicit messages being sent in order to get a handle on what exactly is [page 114] making you feel uncomfortable. We have previously referred to implicit messages as indirect and opaque. This is accurate from a verbal perspective, as the words alone do not convey the critical meaning. At the same time, visual and vocal cues, the primary tools for implicit messages, communicate directly to others and, some would say, more authentically than words. After all, it is much easier to mislead others with words than with body language. For this reason, some negotiators recommend looking people directly in the eye when probing for hidden agendas and asking difficult questions. In Western cultures, the inability to look someone directly in the eye, sweaty palms, or the uncontrollable quiver in your voice, can communicate volumes of meaning about the sender, their authenticity and credibility and even the relationship between the negotiators. Negotiators must be quick to recognise and interpret these implicit messages and their associated incongruence. We will continue to explore verbal, vocal and visual communication and how to respond to perceived incongruence in the next section.

Receiving the message 6.6 So far, we have introduced the four meanings embedded in every message and focused on the role of a negotiator who is sending the message. Now we will extend these ideas from the perspective of the other person in the communication equation, the receiver. As indicated previously, intention (what is intended to be sent) does not always correspond to impact (what is, in fact, received). In conflict situations, it is rarely the case. Ultimately, the onus is on both negotiators to achieve a sufficient overlap between intention and impact in order to communicate effectively. In the first instance, however, it is up to the receiver to check the correlation between intention and impact. So, as a negotiator on the receiving end, how do you do this?

In previous chapters, we have made reference to the importance of listening as a negotiation skill. As Parker writes: The truly great negotiators in the world are the great listeners. They are the people who listen for: the opportunities the things that are not said the things that are implied the things that are missing the things that are distorted the things that are understated the things that are emphasised

[page 115] the signalling of importance the emotions behind the words the agreement signals the doubts, fears, concerns the questions the pauses the relevance the congruence the certainty closure signals shifts in time the options.2

The quote is impressive — not only for its poetic qualities, but also for its ability to capture the enormity of the listener–receiver’s task. In negotiation, we use the term active listening to reflect the proactive nature of listening; namely, that listening involves paying attention to all the aspects highlighted in Parker’s quote, and giving feedback to the sender about the signals, meanings and messages received. You would be forgiven for speculating that human beings are naturally better listeners than speakers because we have two ears and only one mouth. Unfortunately, this is not the case. Most of us are not intuitively good listeners. Moreover, unlike public speaking, active listening does not seem to

be a communication priority in school education, and, as a result, most of us have not been trained to listen well. But do not despair! According to Schulz von Thun, two ears are not enough anyway — we need four ears in order to listen effectively to the four meanings in a message coming our way.3

The negotiator’s four listening ears 6.7 In the same way that senders use their four tongues to deliver messages with four meanings, receivers have the ability to listen to each of the four meanings with four different ears as demonstrated in Figure 6.7. [page 116] Figure 6.7:

Four Listening Ears

However, it would be unusual if we always listened with four ears. Most of us have a particularly sensitive ear through which we hear and interpret messages. Here are two examples. Nancy is focused on her new relationship with Paddy and so has a particularly sensitive relationship ear at the moment and is prone to take things personally and be easily offended. When Paddy says that he can’t go away for the weekend with her because he has football training with his team, he intends to send an informational message. But Nancy hears that football is more important to him than she is. She hears that Paddy does not love her. Through this example, we can see that much of the intended message may go missing, and sometimes only one of the four possible meanings gets across and

makes an impact on the receiver. In other words, the impact of the message may have little to do with the sender’s intention in relation to the message. Figure 6.8:

Intention is not Impact

[page 117] Whereas Nancy has a finely tuned relationship ear, other people have an acute request ear. As they are going into a meeting to discuss her thesis topic, Jenny’s supervisor asks her if she would like a cup of coffee. Jenny replies: ‘Oh, what a good idea, shall I get you one as well?’ Some of you may recognise this type of situation. Why did Jenny offer to make the coffee instead of just saying ‘yes’ or ‘no, thank you’? Many factors will have contributed to Jenny’s eagerness to make coffee, including a heightened sensitivity to picking up the implicit request in communications. Schulz von Thun suggests that those with an acute request ear tend to be less in tune with their own needs, feelings and wishes and more focused on what others around them think, feel and want.4 As negotiators engaging in larger-than-life conversations, we must be mindful of our sensitive ear — that is, the ear we activate to the exclusion of the others. This means engaging in reflexive practice. As we begin to know our listening patterns, we can train ourselves to listen for other meanings before we respond. Following on from an earlier example, Nancy might take a deep breath before protesting to Paddy about his poor prioritising and ask

herself what other meanings could be buried in Paddy’s statement. She could check with her other ears: those of factual meaning, self-disclosure and request. Upon finding different meanings, Nancy might then check with Paddy whether she has understood his message properly. Such an approach gives Paddy the opportunity to either confirm that Nancy has received the message as he intended it, or to explain it again to the extent that intention and impact have become skewed. ‘Well, that’s all very well’, you might say; Nancy does a mental check in relation to other possible meanings in the four-in-one message, but how exactly does she cross-check this with Paddy? There is a range of listening skills that negotiators can use to check the intended meanings of the other’s message and these are considered next.

Active listening 6.8 Active listening refers to a set of skills that help you clarify with the sender the meanings in the message that you have received and to elicit further meaning from the sender. It is a way of providing the sender with feedback. Good active listening requires awareness of the verbal, vocal and visual aspects of communication. Before we begin unpacking the specific skills involved in active listening, let’s reflect upon its potential benefits in negotiation. Active listening has benefits for all negotiators and for the process itself. Senders have the opportunity to feel heard, listened to and respected. They [page 118] can set the record straight if receivers get it wrong and tell more of their story if they feel critical bits have been missed. Receivers can check that they have really got the relevant meanings in the message and not just the one to which they are particularly sensitive. They can also use active listening to break down complex messages and effectively slow down the process. This allows them to buy time to think and reflect. This can be very useful where there is a negotiation culture of speed and non-reflection. Finally, when both

negotiators use active listening, the effectiveness of the constructive approach to negotiation is optimised. Through active listening, the negotiators are able to engage in meaningful communication as a foundation for building a good working relationship and reaching an outcome that addresses their interests. Finally, negotiators who are practised in active listening will generally have the rapport and the skills to avoid potential misunderstandings and problems in relation to the implementation of their negotiated outcome.

The ACTIVES of active listening 6.9 Active listening consists of diverse communication skills. Using the mnemonic ‘ACTIVES’ to remember the main ones, these skills include: Attentive body language Clarifying questions Time out Inquiries (open-ended) Verbal followers Empathy Summarising. Attentive body language 6.10

Attentive body language may include:

leaning forward; maintaining direct yet relaxed eye contact (for example, not staring or avoiding); alert facial expression; and an open body posture (as distinct from a closed body posture where the torso is directed away from the other person, arms and legs crossed and palms hidden). Importantly, body language signals do not operate in an isolated manner — their impact and meaning depend upon the context in which they are sent. As we saw in the example of Max’s corporate training program negotiations,

leaning forward on the edge of his seat for the entire negotiations, combined with the other vocal and verbal signals he was emitting, indicated Max’s nervousness and anxiety rather than a positive attentiveness. [page 119] Consciously developed body language 6.11 Body language can be consciously used to develop rapport with the other negotiator. Have you ever noticed two people who are getting on really well? You look at them and you can just tell that they are on the same wavelength, or that they like each other’s company. So how can you tell? Intuition, you might say. Yes, it usually is a gut feeling, an intuitive sense of knowing. However, if you focus more closely on the interaction between these two people, you will notice that there are lots of micro-communication signals moving back and forth between them, leading to congruent body language. Congruent body language can manifest itself in the simple form, for example, of two people sitting side by side at an espresso bar, both with right legs crossed over their left. Alternatively, two negotiators leaning forward and hunched together with hands on the table in front of them signals congruent body language, and may indicate good communication and rapport. Physical pacing 6.12 Physical pacing is a technique of using body language to build rapport with, and even influence, the other negotiator. When you pace another person, it means that you adopt body language which is congruent with that of the other. Sometimes people who try pacing for the first time attempt to mirror the other person; that is, copy their body language exactly. This is not pacing. Pacing does not equate with mimicry. Pacing involves finding a body language that is compatible with that of the other person in terms of shape, movement and/or timing. Once you have established physical rapport, you can then start to lead the other. For example, if Max chose to pace his counterpart in the corporate training negotiations, he may begin by leaning back and slowing down his body language to adjust to that of his corporate

counterpart. Provided Max’s other verbal and vocal communication signals are compatible with his physical pacing, the two negotiators are likely to develop a level of rapport. Then Max can consider leading the other negotiator through pacing. This might involve Max subtly leaning forward to signal increased seriousness in the discussions, or commitment to doing a deal. If the other negotiator also leans forward, this is an excellent sign. It suggests that Max is in charge of the situation and that there is a good and growing level of trust and negotiation commitment between the negotiators. If, however, the other negotiator does not follow Max’s pacing lead, he has lost nothing. Max can let it go or try again. Pacing is a sophisticated skill to master, so do not be discouraged if it does not work for you right away. Like most aspects of active listening, if done well, pacing can be very powerful. However, if done poorly, it can be counter-productive and devastating to the relationship between the [page 120] negotiators. Therefore, before you try pacing, make sure you practise and get feedback from others on your skills. Body language and other visual forms of communication such as appearance, attire, posture, gait, the subtleties and symbols of the physical environment and use of visual aids (flow charts, diagrams and so on) may vary in their impact depending on cultural norms. We address cultural issues in Chapter 9. Clarifying questions 6.13 Asking clarifying questions involves checking that you have understood the meanings in the message correctly, as well as their priority from the sender’s perspective. Without clarifying, you may miss important points and will have to ask further questions later. Clarifying questions can focus on any one or more of the four meanings in the sender’s message. For example, at a particular point in time you may want to keep discussions focused on facts and requests rather than attitudes, interests and feelings. At

this point, clarifying questions which are focused on the informational and request meanings will be useful. Questions such as: ‘So what you’re saying is …’ ‘If I understand you correctly …’ ‘Okay, so what you want out of today is …?’ ‘Could you explain again what you need me to do?’ Alternatively, if you want to clarify what is important to the sender, their feelings and interests, then you would focus on the self-disclosure meaning and ask questions such as: ‘So your priority in this negotiation is … Is that right?’ ‘It sounds like … is really important to you?’ ‘Okay, so what I hear from you is a concern around these issues …’ Finally, clarifying questions can focus on the relationship meaning in the message and reflect the sender’s feelings or views about you and/or the nature of the relationship between the two of you. The following types of questions may be useful here: ‘So you are anxious about my ability to sustain the quality of training programs over time for such a large clientele group?’ ‘It sounds as if you feel that we need time to build up trust between us again.’ ‘Your silence suggests that you would prefer to negotiate with someone you see as more important than I …’ ‘Jenny, I think the fact that I am your supervisor is making this conversation really difficult for you. Am I right?’ [page 121] Time out 6.14 Pausing or allowing the other negotiator some time out can be an appropriate means to indicate that you appreciate the importance or relevance

of what you have just heard. Silence is also communicating. Combined with body language, your silence can convey embarrassment, understanding, respect, challenge, uncertainty or cultural custom. In this situation, there are no verbal or vocal messages being sent — only visual messages. For example, sometimes the other side may just want to let off steam, to express their frustrations in the presence of another. Your verbal acknowledgment and feedback may not be required — not yet anyway. At other times, sensitive information may be conveyed. Revisit Figure 6.5 and consider the four different meanings sent in the silent message represented there. Inquiries (open-ended) 6.15 Open-ended inquiries encourage the receiver to speak. Unlike closed inquiries, which demand specific or yes/no answers, open-ended inquiries seek further information from the receiver. They can be general or they can address a specific area of inquiry, as the examples below demonstrate. As indicated in Chapter 4, open-ended inquiries are particularly useful in the information-gathering and exploration steps of a negotiation; however, they can be used at any stage. Examples of open-ended inquiries include: ‘How did you reach that figure?’ ‘What makes you say that?’ ‘What led you to that conclusion?’ ‘What else?’ Verbal followers and verbal pacing 6.16 Verbal followers consist of verbal and vocal utterances to indicate that you are following what is being said and that it is all right to continue. Examples of verbal followers are: ‘Mmmmh’ ‘Oh, really?’ ‘I see’ ‘Yes’ ‘Aha’.

The classic verbal follower scenario occurs on the telephone where, due to the absence of the visual element, communication consists solely of verbal and vocal elements. In this context, body language plays no role and the importance of verbal and vocal signals increases. Take the example of a telephone call between a lawyer, Lyn, and her client who calls to tell her of a new turn of events. While she is listening to her client, Lyn is concentrating on taking down [page 122] notes. ‘This information could be important’, she is thinking to herself. If, while concentrating on note-taking, she were to say nothing, her client on the other end of the line would invariably ask: ‘Are you still there?’ However, Lyn is a skilled active listener and so she uses verbal followers such as ‘mmmmh’, ‘oh, really?’, ‘I see’, ‘yes’ and ‘you don’t say’ to demonstrate that she is paying attention to what her client is saying. As for her client, he knows that Lyn is still listening and following what he is saying and so is encouraged to continue talking. Verbal pacing is similar to the physical pacing described in 6.12, with one difference — instead of pacing physically with your body, you pace with your choice of words. Most people have preferred communication, thinking and learning styles, with the main ones being visual, auditory and kinesthetic.5 We talk more about these styles as ‘intelligences’ in Chapter 7. In general, visually dominant people will use phrases such as, ‘I see what you mean’, ‘how does that look to you?’ and ‘I can see you have your eye on the IP rights’. Auditory people prefer phrases such as, ‘that resonates with me’ and ‘that sounds a bit on the low side’. Finally, kinesthetic communicators may say, ‘I don’t feel comfortable with all these lawyers in the room’, ‘it strikes me as if’ or ‘earlier we touched upon this issue’. If you recognise any of these patterns in the other negotiator, then you can try verbal pacing by packaging your active listening messages in a language to which the other person is likely to relate and respond well.6 Empathy

6.17 Communicating empathy to the other person is an integral part of active listening and an important tool of persuasion in negotiation. Empathy means the ability to put yourself in the other negotiator’s shoes and to understand where that person is coming from in terms of feelings. Empathy does not mean that you have to agree with the other negotiator. The terms empathy and sympathy are often confused but they are different. Sympathy involves compassion and implies agreement with the other person. For example, Nancy is complaining to a friend about Paddy not going away with her for the weekend. Nancy’s friend responds: ‘How insensitive! Didn’t he even remember that it was your six-week anniversary? Unbelievable.’ This is an illustration of sympathy. Nancy’s friend is effectively communicating that she shares Nancy’s point of view, which in turn encourages Nancy to feel justified in her feelings and immediate reaction. However, Nancy’s friend could have responded differently. She could have showed empathy instead of sympathy, and said: ‘Nancy, you sound so upset and disappointed!’ An empathetic response would have conveyed understanding without necessarily agreeing with the [page 123] rights or wrongs of Paddy’s behaviour or encouraging the escalation of destructive emotions.7 Nancy might then have been encouraged to reflect on her own feelings and needs, and to discuss these further with her friend. Negotiators need not demonstrate sympathy with the other person. In fact, it may be a poor tactic to do so. However, the negotiation may require a dose of empathy to help to develop rapport and trust, build the relationship and work towards a mutually acceptable outcome. Examples of empathetic listening questions are: ‘It sounds as if you are feeling really weighed down by the pressure to make a decision …’ ‘My sense is that you were really disappointed when I did not turn up to the partners’ meeting.’ ‘It sounds like that really hurt you.’

Finally, you may notice that empathetic questions can be similar to clarifying questions, which respond to the feelings embedded in the selfdisclosure and relationship meanings in the message. Summarising 6.18 Summarising means summing up what the other negotiator has said in your own words. By summarising, negotiators strive to ensure that all meanings have been received and acknowledged, and misunderstandings minimised. Summarising will help you to bring together various threads of the negotiation and offers segue from one phase of the negotiation to the next. It helps to signpost the negotiation process and reminds all participants of where they have come from, where they are now and where they are heading. Summarising takes on particular significance when moving from the top triangle of the process model to the bottom triangle.8 Unless the exploration of interests and goals has been done thoroughly in the top triangle, the potential for generating sustainable solutions for all negotiation participants in the bottom triangle will be limited. Examples of summarising statements are: ‘Before we move on, let me check that position/situation/concerns/interests properly …’

I

understand

your

‘So today it’s important for you to talk about Y and Z.’ ‘Can I make sure I’ve got this right? You feel that …’ ‘Let me summarise what we have agreed on so far, and where we still have differences …’ [page 124] ACTIVES — conclusion 6.19 Having read through this section on ACTIVES, you may have noticed that active listening techniques: are non-judgmental — that is, they do not criticise or judge the other person but rather seek to understand where the other is coming from;

are usually phrased as rhetorical questions, in order to give the sender the opportunity to correct any mistaken meanings as they arise; and must be authentic to be effective. How you apply ACTIVES and which ones you apply in a negotiation is entirely up to you. There are no right and wrong ways. Practice and experience will help you to develop your own personal repertoire of active listening skills. It is not a matter of learning a few standard lines off by heart to get others to talk more. The other negotiator must feel heard and acknowledged before they are prepared to begin to trust in you and work towards creative, sustainable solutions.

More communication skills for negotiators 6.20 So far, in this chapter we have focused on communication skills in the context of the sender–receiver model and Schulz von Thun’s Four Meaningsin-a-Message. Now we look at some more communications skills that are useful for all negotiators, whether they are communication senders or receivers. Framing and reframing 6.21 Communication frames refer to the personal framework or frame of reference through which we view the world and upon which we rely to package our communication messages. How we frame messages influences how people receive them and which meanings in the message they understand. When we send a message, most of us automatically frame it according to how we see things — that is our personal framework. In a conflict situation, this can have the effect of escalation. The dispute is fuelled when each person continues to bombard the other with their own frame of reference, while ignoring that of the other. Constructive negotiators have the ability to choose the way they frame their messages. In other words, they don’t just work on automatic pilot. Framing a message in a way that acknowledges the other negotiator’s frame of reference can be a very persuasive way of getting that person to listen to you and

consider your views on the matter. For example, Max might say to the potential corporate client: If I were in your position, I would want to know how a small operation like mine can offer sustainable quality training services to your hundreds of employees in various locations. [Pause and waits for non-verbal acknowledgment of the other before continuing.] So let me tell you about how we operate.

[page 125] Immediately, Max has the other negotiator’s attention. That is exactly where the corporate giant is coming from. His wife has attended one of Max’s public training programs and loved it. She hasn’t stopped talking about the training since. It is only because of her that he is even making the time to talk to such a small operation as Max’s. By changing the frame of reference to that of the other party, Max has optimised his chances of being heard and persuading the other that his boutique training organisation is the right one for the job. Table 6.1:

Framing the Discourse9

Mediators might choose to say Matter/situation/differences/Circumstances Discussions Current hopes/expectations Other party or the person’s name Agree to Give us your understanding of Ways of dealing with Make decisions/choices So this is important for you Ways of addressing/ways of compensating your loss Important issue for you/a priority for you I’m having trouble understanding you

Instead of saying Dispute/conflict/problems Negotiations Claims/demands Opponent/defendant/respondent Concede Tell us the facts Compromises/concessions Negotiate a settlement It’s a matter of principle for you Damages/award/penalty Fundamental to your claim I don’t believe you

At a more subtle level, framing is also about the choice of constructive words over less useful ones. Table 6.1 provides examples of constructively framed terms that can be used in most negotiations. Finally, framing involves a

choice about which of your four tongues to put forward most explicitly. For example, in Table 6.1, the last phrase in the right-hand column, ‘I don’t believe you’ seems to focus on the relationship meaning in the message and the sender’s negative view of the receiver (dishonest, lacking credibility). The same statement could be framed with a constructive self-disclosure tongue as indicated in the left-hand column (‘I’m having trouble understanding you’). Just as senders frame messages, receivers have the ability to reframe them. Whereas framing is a proactive sender task, reframing is a reactive receiver task. As the name suggests, reframing is the skill of placing a different frame of reference on the sender’s message or part of it. Reframing is a way of responding to the sender that both validates their statement and provides a constructive basis to address some issues. In this way, it builds [page 126] on the active listening skills examined earlier and goes further. By placing a new frame on the sender’s message that is close enough to the sender’s intended message but different enough to change (potentially) destructive communication patterns, the receiver hopes to move the negotiation in a more constructive direction. There is more than one way to reframe. Reframing can pick up on any aspect of the four-in-one message and change the frame of reference for it. For example, when Tom says, ‘I think you should just decide yourself’, Mia might respond with a reframe that picks up on what she hears as Tom’s selfdisclosure meaning. For example, she might say, ‘Tom, sounds like you’re feeling completely overwhelmed right now’. Alternatively Mia might reframe with a relational focus such as ‘Tom, sounds like you feel I don’t value your opinion’. Over and above the four meanings in a message, you can reframe many different ways as shown in Table 6.2, depending on where you want to steer the negotiation. The list is not exhaustive. Table 6.2:

Ways of Reframing10

You can reframe from

… … the past to the future

… positions to interests

… the negative to the positive

… the general to the specific (‘chunking’ down)

Statement: ‘You should be having a go at your lawyer, not me. After all, who was in such a hurry to sign off and skipped over vital steps like risk and feasibility studies?’ Reframe: ‘So you would like future arrangements to include a risk analysis that we both sign off on?’ This reframe encourages a future-oriented discussion Statement: ‘We are prepared to adjust our claim to $10 million in addition to the intellectual property rights.’ Reframe: ‘So being able to pursue the project with unfettered discretion regarding the product — its content, branding and so on — is important to you.’ This reframe encourages a discussion on interests Statement: ‘We are getting nowhere with all this talking.’ Reframe: ‘So you would like us to take some action right now?’ This reframe encourages the negotiation to move forward in a more positive and constructive tone Statement: ‘Look, what about a package final offer worth $14 million?’ Reframe: ‘That sounds interesting. Let me make sure I understand you. If I break your offer down, it looks like this …’ This reframe encourages a discussion on specific details of the message

[page 127] Table 6.2:

Ways of Reframing — cont’d

You can reframe from … … a final demand to one option

… toxic to neutral language

… one-sided to mutual interests

Statement: ‘We cannot and will not accept less than $14 million. If we can’t reach agreement on that, we will have no option but to initiate legal proceedings.’ Reframe: ‘So at this point in time this sum represents the value you see yourselves taking home to your investors.’ This reframe provides an opening for further discussion on options and how investor value is measured Statement: ‘The proposal is sloppy, your staff have no manners and I have a plane to catch.’ Reframe: ‘So you need to discuss the terms of the offer and the behaviour of a particular staff member before 3 pm?’ This reframe helps prevent the escalation of destructive emotions and behaviour, and keeps negotiations focused on the issues to be resolved Statement: ‘This impasse is costing me valuable resources that I need to be investing elsewhere.’ Reframe: ‘Sounds like we both are paying out too much for this

dispute to continue …’ This reframe helps the negotiators to find a common frame for problemsolving

Asking questions 6.22 Asking the right type of questions at the right time can influence the direction of a negotiation. We have already referred to certain types of questions in our discussion on active listening. These included open inquiries and clarifying, empathetic and summarising questions. Other types of questions include closed, specific, narrowing, ritualistic, hypothetical, doublebarrelled, leading, value-laden and neutral questions. Closed questions require a yes/no answer. They won’t lead you down a path of further inquiry but they may clarify specific points for you. In certain circumstances, such as where you feel the other party is trying to mislead you by avoiding disclosure, closed questions may put the other negotiator on the spot. Therefore, be prepared for a defensive response if they do not want to answer. Closed questions can be useful when you are trying to sum up, clarify that you have understood the other, or close the negotiation. For example: ‘Is that a fair summary of your concerns?’ ‘Is that what you’re looking for?’ ‘Does that sound acceptable?’ ‘Are you interested in trying to settle this dispute?’ [page 128] Specific questions are similar to closed questions in that they aim to elicit a particular piece of information. However, specific questions do not require a yes/no answer, for example: ‘Which clause of the contract deals with research and development?’ ‘What interest rate did you envisage for the loan?’ These are useful questions when you are exploring issues in depth and also when you are working out the details of an offer.

Narrowing or focused questions focus the other party on a specific area or issue. Unlike specific questions, they encourage the other person to talk, albeit about a particular issue, for example: ‘Before you go on, could you tell me exactly what you had in mind with that proposal?’ ‘What would it take for the current offer to be more acceptable to you …?’ These are useful questions when probing for further information around a particular issue. Ritualistic questions such as: ‘How are you?’ ‘Would you like a cup of coffee?’ ‘Is that chair comfortable?’ ‘How was your holiday?’ ‘What did you make of the game last night?’ form part of the ritualistic small talk of most negotiations. Some of these questions (such as ‘how are you?’) are rhetorical, which means that the person asking the question expects a standard reply such as, ‘fine, thanks’ or, in some cases, no answer at all. Ritualistic questions form a very important part of the opening (Stage 1) and closing stage (Stage 4) of negotiation.11 Hypothetical questions are especially useful in the bargaining phase of a negotiation where parties are considering different options but are not quite ready to commit. They often take an ‘if/then’ form, for example: ‘If we were to look at a loan rather than cash payment, then could you commit to $2 million?’ or ‘Suppose I were to concede on the first issue, would there then be a possibility of …?’ Hypothetical questions are excellent for keeping the negotiations going and preventing impasse. Double-barrelled questions contain several questions in one. We recommend that you use this type of question only when you don’t want all the answers. Usually, only the last question in the double-barrelled series [page 129]

is ever answered. For example: ‘You expect me to pay how much for the IP that I helped create? Do you do this to all your joint venture partners? Did that happen to the organisation you worked with prior to us?’ Doublebarrelled questions are generally confusing and not very constructive. If you are the recipient of these types of questions, pause and ask which of the multiple questions the other person would prefer you to answer first. Leading or suggestive questions suggest a particular answer and may be useful if you wish to suggest subtly an anchor or an option to the other person. Like closed questions, they generally require a yes/no answer, as the following example shows: ‘In your situation, it seems logical that you would need access to the intellectual property, or have I missed something here?’ Value-laden questions contain an inherent value, and therefore — like leading questions — can be suggestive to the person responding. Consider the question: ‘How quickly do you think you could repay the loan?’ The value here is ‘quickly’. The question suggests that the person asking the question would prefer a shorter rather than a longer time frame. To the extent that it is possible, neutral questions are value-free. Consider the question: ‘What time frame would you be looking at for repayment of the loan?’ It is a question about time without preference for a short or a long time frame. During the preparation and exploration steps of negotiation, neutral questions will be helpful to build an accurate baseline of information about the other negotiator’s needs, interests, emotional state, goals, bottom line, expectations and overall game plan. It is no good finding out that your information is inaccurate because you have asked only self-serving, valueladen or leading questions the entire time.

Summary 6.23 We began this chapter by emphasising that communication is as essential to negotiation as breath is to life. You can’t not communicate. We then referred you to a well-known sender–receiver model of communication as the basis for our exploration of the topic. Focusing first on the sender’s role in communication, we introduced the concept of the four-in-one message (and the four negotiation tongues), which

identifies the four types of meanings that are contained in most communications — information, self-disclosure, relationship and request. We then looked at how messages are packaged in terms of verbal, vocal and visual signals, to create explicit and implicit messages. Sometimes the four meanings in a message are incongruent and the receiver gets a ‘mixed message’. This is an intuitive feeling that the real and most important message has not been clearly communicated. Here we suggest that you trust your intuition and respond to this feeling. [page 130] The focus of the chapter then turned to the role of the receiver. In order to effectively receive and respond to four-in-one messages, we explained that you need four listening ears. We then examined active listening skills within the mnemonic framework, ACTIVES. We concluded the chapter with an exploration of the communication skills of framing, reframing and questioning.

Key negotiating points 6.24

The key negotiating points covered in this chapter are listed below:

You cannot not communicate. In negotiation, everything you do sends a signal, whether you intend it to or not. So be mindful and aware of how your communication influences the other person. Four-in-one messages. Both senders and receivers have a responsibility in relation to the four meanings in the message, and to find a match between intention and impact. For senders of messages: – Know your audience (receiver) and through which ears they will likely receive your message. –

Based on this knowledge, use your four tongues to package your four-in-one message: use verbal, visual and vocal cues; and try to maximise the correlation between intention and impact.

For receivers of messages: – Never assume you have the message right the first time. –

Check for different meanings in the message using: your four listening ears;

verbal, visual and vocal cues; and ACTIVES active listening mnemonic framework. –

Follow your intuition. Name and respond to incongruence.

Ask the right questions at the right time. Know how and when to use hypothetical, narrowing, specific, closed, double-barrelled, value-laden, neutral and other types of questions in negotiation. Know how to frame and reframe. Consider carefully how you frame your communications with a view to encouraging engagement in a constructive negotiation process. If you don’t find the other person’s frame useful, then change it. Reframing is a valuable skill that can redirect the negotiation in any number of ways.

___________________________ 1.

Adapted from F Schulz von Thun, Miteinander Reden 1: Störungen und Klärungen, Allgemeine Psychologie der Kommunikation, Rowohlt, Hamburg, 2003, at 81.

2.

A Parker, The Negotiator’s Toolkit: A Practical Guide to Success in the Home, Office, Factory and Boardroom, Peak Performance Development, Sydney, 1999. Schulz von Thun, note 1 above, at 44.

3. 4. 5.

Schulz von Thun, note 1 above, at 59. These are based on representational systems. For more on visual, auditory and kinesthetic representational systems, see J Grinder and R Bandler, The Structure of Magic II, Science and Behaviour Books, Palo Alto CA, 1976, Part I.

6. 7.

See also the section on multiple intelligences at 7.11 and 7.12 in Chapter 7. For more on emotions, see Chapter 8.

8.

See Chapter 4 on the Construction Negotiation Model and the ten-step guide to constructive negotiation. Reproduced from L Boulle and N Alexander, Mediation: Skills and Techniques, 2nd ed, LexisNexis Butterworths, Sydney, 2012, at 6.18.

9.

10. Adapted from Boulle and Alexander, note 9 above, at 6.43. 11. See Chapter 4 at 4.4 and 4.8.

[page 131]

CHAPTER

7

Deepening negotiator awareness and skills Introduction Working with conflict Working with difference Working with power Working with multiple intelligences Summary

Objectives of this chapter Understand the importance of interpersonal skills as an ability to work with conflict, difference, power and multiple intelligences Discuss the nature of conflict and the opportunities available in developing a respect for conflict Introduce the DISC model of negotiating style as a tool for embracing difference Identify the various sources of power and how to use power constructively Explore the multiple intelligences of people and discuss ways of sharpening one’s emotional intelligence

Introduction

7.1 The negotiation skills that are described in this book are relatively simple. The challenge comes in being able to use the skills in the heat of the moment negotiating. One thing that could help negotiators with this is [page 132] having an understanding of self (one’s own style, strengths and weaknesses) and an understanding of one’s fellow negotiator. In this chapter, we introduce some of the interpersonal skills of negotiating and focus on the mantra of negotiator know thyself, and know your counterpart. First, what are interpersonal skills? Often people think of interpersonal skills as the ability to be friendly, to communicate well with other people, to be neither shy nor withdrawn in social contexts, or to care about others. Interpersonal skills can be these things, and they can also be skills that include the ability to work with conflict, difference, power, and with multiple intelligences, including emotional intelligence. Essentially, skilful constructive negotiators are those who are attuned to themselves and to their counterparts and can balance the negotiation process in a manner that blends interpersonal skill with negotiation skill. Figure 7.1 below reflects this multi-dimensional perspective of constructive negotiation and the reflexive negotiator.

Working with conflict The importance of conflict 7.2 Pruitt and Rubin define conflict as a ‘sharp disagreement or opposition, of interests, ideas and so on’.1 People often view conflict as something to avoid at all costs. However, a constructive negotiator is likely to understand the importance of conflict. As Mary Parker Follet wrote: As conflict — difference — is here in the world, as we cannot avoid it, we should, I think, use it. Instead of condemning it, we should set it to work for us. Why not? What does the mechanical engineer do with friction? Of course his chief job is to eliminate friction, but it is true that he also capitalises on friction. The transmission of power by belts depends on friction between the belt and

the pulley. The friction between the driving wheel of the locomotive and the track is necessary to haul the train. All polishing is done by friction. The music of the violin we get by friction. We talk of the friction of mind on mind as a good thing. So in business, too, we have to know when to try to eliminate friction and when to try to capitalise on it, when to see what work we can make it do.2

[page 133] Figure 7.1:

Multi-Dimensional Constructive Negotiation

Skilled negotiators learn to respect conflict and work with it effectively and productively. They learn to understand conflict and respect the opportunities that it presents; that is, as an opportunity to raise awareness to existing or potential problems, to strengthen relationships or to promote change. They

also learn to recognise the dangerous side of conflict; that is, when the conflict is capable of creating destructive consequences and learn how to manage this in a constructive manner. [page 134] Danger 7.3

Deutsch and others have identified the dangerous side of conflict:3

Competing for win–lose goals. When negotiators engage in competitive processes to obtain goals or ‘to win’ concessions, the result may be ill feeling on both sides. Misperceptions and bias. When the conflict tends to distort perceptions, negotiators can come to view things solely from their own perspectives. Emotionality. Many negative emotions, such as feelings of anger, irritation, frustration, annoyance or anxiety can accompany conflict and the more intense the emotions, the greater the possibility of misperceptions and conflict escalation. Decreased productive communication. In conflict, people often stop talking to the person with whom they are in conflict. If they do talk, the communication is usually inflexible and unproductive. Blurred issues. Conflict is like a stone thrown into a pond. It can muddy the waters and send ripples out in all directions. It can also suck in unrelated issues and innocent bystanders. The real issues become less clear as the conflict escalates. Rigid commitments. Conflict tends to lock people into positions. The challenging and competing behaviours that accompany conflict can make people rigid and inflexible as they lose sight of the multi-dimensional nature of conflict and conflict resolution. Magnified differences, minimised similarities. The ripple effect can make people believe that they are further apart than they might really be, and they can lose sight of common goals and interests.

Escalation of the conflict. The more people become entrenched in positions, the more the communication decreases, the more the waters become muddied and the faster the conflict will accelerate and heat up. The escalation of the conflict can end in the destruction of relationships and remove any ability to resolve the conflict in the future. Managing the dangerous side of conflict 7.4 The dangerous side of conflict can be the common face of conflict unless people are able to take a step back and introduce effective strategies for managing it productively. Some of the effective strategies for managing conflict include: [page 135] Discovering the cause of conflict. Understanding the cause of a conflict is useful in determining a strategy to deal with it. Moore has identified several causal categories of conflict that are useful as a starting point:4 – interest conflicts are caused by the perceived or actual incompatible interests of the parties; – data conflicts are caused by incompatibilities of data. The parties could be in conflict over their interpretation of data, the completeness of the data, or their evaluation of the data; – relationship conflicts are caused by inadequate or broken-down communication between the parties. This could arise from a number of issues including misperceptions, wrong assumptions, stereotyping, emotional reaction, different framing of the conflict, or even the different moods of the parties; – structural conflicts are caused by structural differences between the parties, which in turn are often created from situations of unequal control, power or resources; and – value conflicts are caused by perceived incompatibilities of fundamental values or beliefs of the parties.

Shapiro and Fisher describe conflict as arising when one or more of our core concerns is crossed. They identify core concerns as: – autonomy (the personal freedom to make decisions for ourselves); – feeling appreciated (or having our actions acknowledged); – affiliation (being treated as a colleague); – status (the feeling that others respect our standing); and – having roles and activities that are fulfilling.5 Bush and Folger describe conflict as a crisis of human interaction, which focuses on the way negative interactions disrupt expressions of our basic humanity as essentially strong, decent and compassionate human beings. They describe these disruptive interactions as leading to two relational conditions: – relative weakness (loss of agency or autonomy); and – self-absorption (loss of connection or understanding of others).6 [page 136] Rectifying misperceptions and looking for common ground. Taking a step back and looking at the causes of conflict can help reveal what misperceptions need to be rectified and where there might be some common ground. Moore7 has also identified some tactics to use when dealing with the different categories of conflict: – Interest conflicts. Search for shared or complementary interests and design solutions to meet those interests. Chapter 4 examines the steps involved in interest exploration and option generation. – Data conflicts. Look at how the parties are interpreting the data — ask questions and clarify, and in the case of deadlock, consider the use of independent experts. – Relationship conflicts. Acknowledge emotions and demonstrate empathy through active listening. Explore assumptions and misperceptions through open questions and active listening. Look for common ground

–

–

and understanding, as well as mutual ways of solving the issues. If the relationship remains hostile and destructive, then it might be time to call in a neutral third party, such as a mediator, to facilitate the discussions or negotiations. This is discussed further in Chapter 8 and the section on managing emotions in negotiation at 8.10–8.14. Structural conflicts. Look for ways to modify the structures, resources and power to provide a level playing field and common ground. This could include renegotiating the negotiation process itself, or changing some aspect of the negotiation. The Negotiation Navigation Map8 can be useful in identifying stakeholders with similar interests as potential allies with the capacity to help change the power structures in the negotiation. The examination of power later in this chapter may be of assistance in designing interventions to modify structures in the negotiation. Value conflicts. Value conflicts usually arise when one party tries to impose their values on another. Value conflicts can be difficult to resolve if there is a real incompatibility, for instance, when the negotiators can’t accommodate both values or do not have a higher value to which they both subscribe. Value conflicts can nevertheless be managed. The parties can reframe a value conflict to an interest conflict — for instance, a belief that all nuclear energy is wrong could be reframed to an interest in the safe use of sustainable energy. Alternatively, instead of reframing [page 137] as interests, the parties could agree to disagree on subordinate values (use of nuclear energy) but agree to subscribe to a higher value (world safety and peace).

Separating the people from the problem. Fisher, Ury and Patton9 described the idea of separating the people from the problem in relation to interest-based negotiation and it works in conflict resolution generally. What Fisher et al mean is that we should use people skills on the people problems

(relationship problems, issues of how we are treated) and problem-solving methods on the problem problems (interest, data, structural conflicts, and so on). The following guidelines can assist in separating the people from the problem: – Listen. Try not to react, justify, or try to change the other’s mind, just listen carefully to what is important to the other party. – Understand. Try to understand the emotional and substantive aspects of the problem from the other party’s perspective. – Acknowledge. When it is your turn to talk, do so by acknowledging the problem from the other’s point of view. Restating the problem in terms of the other’s interests will help to diffuse any heightened emotions that the person might have. Avoid arguing based on your perception of the other party’s perspective — an approach almost guaranteed to cause trouble. – Act. After listening, understanding and acknowledging the problem from the other person’s perspective, take action. Think about the best way to problem-solve according to the strategies for managing conflict described above and employ the good communication skills discussed in the previous chapter. Opportunity 7.5 By following these strategies, negotiators can start to develop a respect for conflict and can look for the opportunities that might accompany conflict. Theorists have recognised many opportunities in managing conflict well, including: raising the awareness of existing problems, or providing an alert to foreseeable problems; identifying the people who are frustrated and want change and those for whom change is frightening. This can help people to understand what type of change is required and how best to manage it; [page 138]

strengthening relationships through discussing the problem and problemsolving together; raising awareness of self and others. Conflict often forces people to think about what makes them angry, frustrated and/or frightened. It also helps people prioritise what is important to them. Conflict can show how others react and act in conflict situations. These things together can lead to enhanced personal and psychological development; and creating a stimulating and, at times, ‘fun’ environment. Sometimes people can become stimulated and actually enjoy themselves in conflict. The arrival of conflict can alleviate the boredom of everyday existence and can reactivate emotions in people that had long been dormant. There can also be a flurry of creativity, leading to interesting outcomes that might never have eventuated without conflict. There can be substantial benefits to developing a respect for, and learning ways to negotiate a successful resolution to, the conflict. Skilled negotiators will acknowledge the destructive side of conflict and develop strategies for turning a destructive conflict into a constructive one. In short, effective negotiators will recognise that while there is danger in conflict, there is also opportunity. Looking for the opportunity and the value that you can create from conflict is a key negotiating skill.

Working with difference 7.6 Learning how to work with difference is also a key negotiating skill. People are different and conflict can arise because of difference. Everyone has varying abilities to communicate, different sources of power, different intelligences and negotiating styles. In this section, we explore different negotiating styles before we move on to discussing other types of differences. Being able to work with the interaction produced by people’s different styles is integral to successful negotiating. Negotiators can often miss opportunities to create value in negotiations or conflicts when they dismiss people who are different from them. It is important to recognise that because of individual differences, no one negotiator is going to behave like another. Because of this, it is helpful to

identify the negotiation behaviours that people normally resort to in times of stress or conflict — their default behaviours. One model that can assist in doing this is the DISC model, which identifies how people behave when they relate to others, approach tasks and generally deal with the world around them, in times of pressure or stress. Negotiating can be stressful, as can conflict. Therefore, identifying the behaviours that people tend to use in these times can be helpful because it can highlight the strengths and weaknesses of certain styles. [page 139] William Moulton Marston, a Harvard law graduate who invented the polygraph lie detector and the cartoon character ‘Wonder Woman’ in the 1920s and 30s, created the DISC model. According to the model, people fall into one of four core behavioural/negotiation styles based on two dimensions: an outgoing/reserved dimension; and a people-orientated/task-orientated dimension. In our complexity, each one of us is a mixture of the four styles, but most of us also have one or two dominant style/s and the DISC model is particularly useful in highlighting these predominant styles. It is important that negotiators identify the predominant style that they use in the ‘heat of the moment’ negotiating. Table 7.1 outlines the dominant negotiating styles. There is the Conscientious style, which falls on the reserved task-orientated dimension and whose predominant style is detailed, meticulous and dedicated to high standards. The Direct style, while also task-orientated, is more outgoing and has as its major traits being straight to the point, confident and focused on results. The Influencing style, which sits on a diagonal to the conscientious style and therefore is most in conflict with this style as it has the least in common with it, is a people-focused, outgoing style that values change, creativity and optimism. The Stabilising style, which sits diagonally to the direct style, is a people-orientated, reserved style, that is patient, diplomatic and values cooperation and support when negotiating.

Table 7.1:

Negotiation Styles

Conscientious style At worst Fanatic/positional

At best Discerning

Direct style At worst Fighter/positional

At best Persistent

Cautious Machine-like

Planner Evaluative

Dominant Arrogant

Leader Confident

Weaknesses May overlook variety of options and people’s needs and concerns May be so concerned with details, that may not sufficiently heed the bigger picture May appear unwilling to be flexible

Strengths Weaknesses Task-focused May overlook some Attentive to detail people’s discomforts and concerns High standards May be so focused on the Concerned that appropriateness of own the solution is outcome, that may not hear comprehensive others’ suggestions Others may hear own suggestions as demands

Strengths Task-focused Straight to the point Willing to tackle problems

Concerned with ensuring a result occurs

[page 140] Table 7.1:

Negotiation Styles — cont’d

Conscientious style Areas needing attention

Direct style Areas needing attention

visioning

including the team

flexibility

eliciting others’ opinions

considering feelings of others

listening attentively

knowing when to break rules

delegating

listening sensitively

showing empathy

thinking laterally

giving constructive feedback

allowing more time for exploration of feelings include others in decision-making and concerns Stabilising style Influencing style At worst At best At worst At best Accommodating Facilitator Impulsive Catalyst Hesitant Fence-sitter

Patient Diplomatic

Verbose Disorganised

Spokesperson Optimistic

Weaknesses

Strengths

Weaknesses

Strengths

May overlook the requirements of the task May not participate fully in the process May be too ready to give up own needs in a compromise

People-focused Supportive Cooperative Concerned that everyone is satisfied with the negotiation

Areas needing attention

May overlook necessary details and procedures May be slow to attack the problem May falsely believe that others have been persuaded to own point of view

People-focused Persuasive Creative Concerned that agreement is reached

Areas needing attention

assertiveness

think first

self-assurance

be precise

risk-taking

hear feedback on proposals

confidence

be practical

setting limits on others talking

preparing thoroughly

ensuring that adequate attention is given to the task

focusing on the task putting sufficient emphasis on others’ concerns

making ‘l’ statements

Once negotiators have identified their predominant style and how it differs from those with whom they are negotiating, DISC can teach us the following lessons: Value difference. Different approaches can lead to creative problemsolving. Understanding and respecting difference, rather than judging it, can help to make it easier to empathise with others and create better relationships. [page 141] Recognise and use the strengths and weaknesses of each style. Constructive negotiators will not place one particular style of behaving or negotiating above another. They will build upon the strengths of their own and the other’s style, and try to find ways of working with the characteristics of each. Build constructive teams. Building negotiation teams with people from all four styles can be a very effective tactic — a team can benefit from the

strengths and expertise of team members with different styles and at the same time is able to counter the weaknesses in any one individual style. Embrace difference. Ignorance of difference, or a continual denial of difference, can create conflict. A constructive negotiator will use difference to create value in the negotiation, both in the process and in the content. For instance, in a negotiation between a negotiator with an influencing style and a person with a conscientious style, the conscientious negotiator can assist the influencer — who tends to overlook details — to reality-test a particular option. During this process, not only will the negotiators ensure that the option is workable, but it might also lead to them discovering other options. In essence, the conscientious negotiator’s attention to detail can unleash the influencing negotiator’s creativity and ‘big picture’ thinking. Use a framework such as DISC to identify procedural and psychological interests. DISC outlines people’s needs and fears as well as their preferences for the way that they like doing things. In this way, DISC is an invaluable resource for constructive negotiators to get a deeper understanding of their own and others’ interests, in particular, the procedural and psychological interests. Use the styles well. Understanding that there are default negotiation styles that people use when they are under pressure or in conflict, can assist negotiators to continue to use the styles that serve them well while working on improving those at which they are less adept. Further, they can add negotiation styles to their repertoire so that they can become more flexible and adaptable, and have a complete range of strong negotiation skills.

Working with power 7.7 Just as there are individual differences in relation to negotiating styles, so are there differences in how people source and approach power. It is clear that differentials in power can greatly influence negotiations. In this section, we aim to identify what sources of power are available and how negotiators can use power differences to benefit constructive negotiations. [page 142]

Sources of power 7.8 According to Cohen, power is the capacity to get things done — to exercise control over people, events, situations and oneself. However, all power is relational. Power requires one person to assert or make a ‘bid’ for influence or control over another and, at the same time, it requires the other person to ‘endorse’ or yield to that bid for influence or control. However, it is also a matter of perception. If you think you’ve got it, then you have it. If you think you do not have it, even if you have it, then you don’t.10 And, if you think you have it, but the target of your influence doesn’t agree, then you have a power struggle until someone yields. So, if power is the capacity to get things done and the ability to exert control over other people, where does it come from? Is it, as Cohen suggests, a matter of perception? There is a truth in Cohen’s suggestion that negotiators can alter perceptions of power by choosing particular strategies and tactics. There are also many types of power. An early, yet reliable, typology of these types of social power is that of French and Raven,11 who refer to: expert power, which is special expertise or unique information about a subject that the other person lacks, for example, legal negotiators might hold power over non-legal negotiators because of their legal knowledge and expertise; referent power, which is the ability to be a frame of reference or identification for another person, for example, a negotiator might have referent power over another because the negotiator is associated with a particular law firm that is identified as excellent in international negotiations; reward power, which is the ability to give desired rewards to others for doing what the negotiator wants them to do; coercive power, which is the ability to administer punishments and take away rewards from others for not doing what the negotiator wants them to do; and legitimate power, which is the right to power because of position, cultural values or legal rights or certification, for example, a partner of a law firm will

hold legitimate power over a senior associate because of his or her position in the law firm. We sometimes refer to this form of power as ‘authority’. [page 143] Over the years, many authors have modified and broadened this typology. It is rare that a negotiator would only ever possess one source of power — types of power usually coexist and change depending on the context. There is now a large list of sources of power in addition to French and Raven’s typology, including, but not limited to, the list below. Many of these sources derive from the work of Bernard Mayer:12 Resource power. Control of resources such as technology, market share, money, time, services and so on. An example here is a partner’s power over a subordinate because of the control he or she might hold over the firm’s finances. Nuisance power. This is the ability to make a nuisance of oneself, for example, to annoy, harass or upset others. A neighbour might determine that the best way to get another neighbour to stop his dog barking is to talk to all the other neighbours in the street. Neighbours do not usually like having others upset with them and this might encourage the neighbour to train the dog appropriately. Procedural power. This is the ability to control or influence how a negotiation proceeds: where, when, who and so on. For instance, a junior negotiator might ask her supervisor to meet her in a coffee shop rather than in the office. By surrounding herself with people not in the law firm, this might influence the supervisor to view the junior differently. Habitual power. This power derives from using the status quo to prevent change. In other words, this type of power implies: ‘This is the way that things are always done — there is no reason to change it.’ Moral power. This is a belief that people are acting in accordance with higher values, or values that one senses are more important than one’s own. Personal power. Reputation, interpersonal power, confidence, charisma,

or the power of the promise of further interactions, are great sources of power.13 So, too, are having good communication skills, or some of the multiple intelligences that we discuss below. Patience power. Another personal characteristic is patience, endurance and the ability to withstand all the tactics that the other negotiating party might try to use. Perception of power. This is a power to exploit others’ perceptions of power. Even if a negotiator does not possess actual power, the [page 144] perception of having power can be a source of power. For example, the negotiator in the above scenario only joined the international law firm a month ago and doesn’t really share the power associated with the firm. However, simply working at the firm creates a perception of power, regardless of the truth of the situation. Definitional power. As with communication power, an ability to frame and define a negotiation in a manner that the other party accepts is a central source of power. As already discussed, the naming or framing of a negotiation is often a key to successful negotiations. BATNA power. A negotiator’s BATNA (best walk-away alternative) can be a key source of power. Knowledge that an acceptable alternative is available if the current negotiations fail, can create great power.14 Support and forming coalitions. There is power in being able to gather support and form alliances and coalitions in negotiations. Allies can help counter negotiators who use their power coercively.15 Coalitions are considered in more detail in Chapter 11. Emotions. Just as negative emotions such as rage and anger can have a negative effect on negotiating, so, too, can positive emotions such as optimism and excitement have a positive effect. Positive emotions can foster collaboration, cooperation and cognitive expansion as negotiators engage in problem-solving and creative enterprises.16 Learning how to use emotions to

work towards efficient negotiations is discussed further in this chapter and in Chapter 8.

Using power constructively 7.9 Although power is fluid and the power dynamics in negotiations will ebb and flow, there is considerable research that shows that power has an effect on negotiations. The research shows that powerful parties tend to aim higher: they tend to concede less and demand more, and they are more likely to do better in terms of outcome than the less powerful negotiators.17 This does not mean, however, that the powerful parties are always the more [page 145] skilled negotiators: ‘Good negotiators develop an ability to use their power wisely, subtly, sparingly, and constructively.’18 One of the great paradoxes of negotiation is that constructive negotiators will know how to identify and use their sources of power, and they will also know how to exploit the other negotiator’s sources of power; however, they will not often do so. Power is not always as it seems, and if negotiators act too much from their own power bases then they can lose the ability to read the emotions and thoughts of others; they can lose the opportunity to share information and perspectives; and can lose the ability to harness power for effective and sustainable negotiation outcomes. Power exists in the relationships among people, and so it is relative depending on whom negotiators are dealing with. If power is the ability to persuade, and persuasion is putting power into practice, then negotiators can use some simple steps to move from power to persuasion and away from using power destructively:19 Know the negotiation territory — build awareness of self and other. Revisit the Negotiation Navigation Map. Look at the Map in its entirety as the tendency to view the negotiation simply in terms of goals can lead negotiators to fail to consider the relationship, interests, and the range of options that might be available.

Look at the bigger picture — build awareness of context. Failing to take into account the larger perspective of the negotiation, and disregarding the interests of the other negotiator can negatively affect the outcome of the negotiation. If negotiators use power simply to achieve their goals and ignore the perspective of the other party, this can inspire bitterness and rebellion. It might achieve a short-term goal but be a loss in the long run. Balance power. The manner in which people view the power relationship in a negotiation can influence their motivation. When people perceive themselves in a balanced power relationship, they are motivated to find ways to satisfy more than just their own interests. When people perceive an imbalance of power, they can lose the motivation to look for ways to create value. However, as we have said, power is often in the eye of the beholder, so it is important to locate the sources of power and not underestimate the ability to use them. Look for ways to use power constructively. Don’t make assumptions about anyone’s relative power. – Ways to increase power: Seek out information, ask lots of questions, manage the process and control the flow of information, [page 146]

–

look for ways of improving your alternatives, identify all the sources of power, look for support, alliances and coalitions, and negotiate in sequences so that you can build your access to power in between negotiations. Ways to manage excessive demonstration of power: Avoid ‘tit for tat’ power exchanges, avoid competitive displays of power, seek advice and feedback on your use of power, don’t underestimate the other negotiator’s power, don’t overestimate the other negotiator’s power, carefully assess and understand the sources of power, and frame the negotiation in terms of interests not power.

Encourage the more powerful party to take responsibility and be accountable. If the other party appears to be the more powerful, encourage the party to take responsibility and be accountable for the outcomes of the

negotiation. Research shows that when high-power people feel a sense of responsibility or accountability, they show an increased generosity and more ability to see things from the other party’s perspective.20 When negotiators can take the perspective of the other, then more effective and constructive negotiations are possible. Just being there is constructive. Remember, the very act of negotiating can level the playing field. Just being at the table will start the other negotiator thinking about your power and vice versa. Negotiators will respond differently to different approaches to power, so it is a good idea to conduct experiments to see how people respond to your use of power. From observing and reflecting upon uses of power, negotiators can begin to get an understanding of what works with what types of people and in what contexts. From this, negotiators can build an appreciation of how to use power effectively. Negotiators can use their power to create momentum for constructive negotiations, or they can use it to prevent cooperation. But, just as people place different values on the same item and value different items differently, so people place different values on different sources of power. Being able to track how these differences might work to benefit everyone in the negotiation can be a key to successful negotiations. Another great paradox about power is that it doesn’t always work in the way that one thinks it will. Therefore, the more that negotiators observe and learn about power, the better off they will be. [page 147]

Working with multiple intelligences What are multiple intelligences? 7.10 Not only do people possess different conflict resolution styles, behavioural styles and sources of power in various contexts but they also have diverse minds — or, as Gardner described them, different intellectual capacities.21 In Chapter 1, we discussed cognitive, emotional and

physiological or ‘embodied’ dimensions of awareness — the various ways we can better know ourselves, our negotiation counterpart, and the larger context in which the negotiation takes place. Gardner introduced the idea of multiple intelligences in the 1980s when he initially identified seven intelligences: 1. linguistic, defined as a sensitivity to the spoken and written language, the ability to learn languages and the capacity to use language to accomplish certain goals; 2. musical, defined as a skill in the performance, composition and recognition of musical patterns, and particularly pitch, rhythm and timbre; 3. logical–mathematical, defined as the capacity to analyse problems logically, carry out mathematical operations and investigate issues scientifically; 4. spatial–visual, defined as the capacity to perceive the visual world accurately, to recognise and manipulate the patterns of wide space as well as the patterns of confined areas; 5. bodily–kinesthetic, defined as the ability to use one’s body for expressive as well as goal-directed purposes, and the capacity to work skilfully with objects; 6. interpersonal, defined as the ability to notice and make distinctions among other individuals, and, in particular, among their moods, temperaments, motivations and intentions; and 7. intrapersonal, defined as the ability to understand oneself, to have an effective ‘working model’ of oneself — including comprehending one’s own desires, fears and capacities, and to draw upon them as a means to understanding and guiding one’s behaviour.22 [page 148] These latter two personal intelligences form part of what is sometimes known as emotional intelligence, which is discussed in detail in Chapter 8.

However, Gardner has also explored several other intelligences since his ground breaking work above, and these ‘newer’ intelligences include:23 8. naturalist, defined as having a greater sensitivity to nature and a sense of place within it, the ability to nurture and grow things, a greater ease in interacting with animals, and expertise in the recognition and classification of numerous species of the environment; 9. spiritual, defined as a sense of relationship to the supernatural world or larger cosmos, and a desire to know about experiences and cosmic entities that are not readily apprehended in a material sense but that are, nonetheless, important to human beings; 10. existential, defined as the capacity to reflect on philosophical questions about life, death and ultimate issues, and to locate oneself with respect to the furthest reaches of the cosmos — this is the cognitive side of spiritual intelligence and it involves being able to imagine and contemplate the infinite. Not all of Gardner’s intelligences stand up to rigorous empirical scrutiny — he has sometimes made reference to ‘eight and a half intelligences’, referring to the lack of empirical support for the final two that he identified. Nevertheless, Gardner’s theories have encouraged a more expansive thinking around working with multiple intelligences. For instance, it is now recognised that when people are able to work with their multiple intelligences, they can increase their capacity to problem-solve and to be creative. Further, by being aware of their own and others’ multiple intelligences, not only can people increase their levels of empathy, self-awareness and social skills, but they can also learn to negotiate constructively by using all of their intelligences and not just those that they have refined through habit or training. For instance, lawyers might recognise that over time they have honed their linguistic intelligences because so much of lawyering involves using words and language. Similarly, dancers or craftspeople might recognise that they have honed their bodily–kinaesthetic and spatial intelligences — their ability to use their bodies and to recognise patterns — to the detriment of other intelligences that they might naturally possess. And so on. In relation to negotiation, different negotiators are going to bring to the table different types

of intelligences and being able to recognise and work with these requires substantial skill. [page 149]

Using multiple intelligences to construct successful negotiations 7.11 Gardner himself suggested that negotiators would most likely be assisted in their quest to be skilful negotiators if they had: good linguistic intelligence, because so much of negotiation involves speaking and listening; interpersonal intelligence, because of the need to understand those with whom they are dealing (awareness of other); intrapersonal intelligence, because one needs to know one’s own needs and desires, and modes of operation (awareness of self); a degree of logical–mathematical intelligence, although Gardner acknowledged that negotiation is not ‘purely a rational process’; and ‘a dollop of existential intelligence’ to help them to answer the bigger questions in a negotiation, such as: ‘Am I being taken seriously? What are we trying to achieve?’ (awareness of context).24 However, perhaps Gardner’s most salient observation about conducting skilful negotiations was that ‘any concept of any complexity can be presented in a number of ways’.25 Chapter 6 on communication highlights the persuasive power of framing negotiation messages in a way that matches the communication style of the other negotiator. This principle applies not only to communication styles, but also equally to behaviour and preferred learning styles. Just as the DISC model can be useful in aiding the recognition of different negotiation styles, the theory of multiple intelligences is helpful in drawing attention to the idea that people learn, disseminate and absorb information in different ways according to their intelligences. For instance, a person with

highly refined linguistic and logical-mathematical intelligences will probably be adept at picking up the thread of a negotiation when it is presented in a rational–logical and linear manner (‘[this] happened and then [that] happened’). However, someone with personal or emotional intelligences might prefer to hear the other negotiator’s interests presented in a way that includes the emotions as well as the linear story (‘I felt [this] and then I felt [that]’). People’s different intelligences are likely to command what they attend to when presenting information, suggesting ideas and problem solving. They can also give negotiators clues about effective entry points for the negotiation. For instance, to start off a negotiation, a negotiator could use a narrative or storytelling for those with linguistic, interpersonal and [page 150] emotional intelligences; or rationally structured overviews for those with logical–mathematical intelligences; or aesthetic representations or walkthrough demonstrations for those with spatial–visual and bodily–kinesthetic intelligences, and so on. Below is a simple summary of some ideas on how a negotiator’s multiple intelligences could shape negotiations. A linguistic negotiator would most likely prefer to see and hear words, especially well-articulated words. These people will most likely pay particular attention to the meaning and weight of the words of the negotiator, as well as to the level of eloquence. A musical negotiator would probably prefer some musicality to the negotiation — either a rhythm, cadence or pitch to the negotiation that creates a sense of the ‘negotiation dance’. A logical–mathematical negotiator would most likely prefer reason, logic and ‘what if’ questions. A spatial–visual negotiator would possibly prefer some visual media or design to accompany the negotiation, for instance, the use of a whiteboard, charts, photographs, models and so on.

A bodily–kinesthetic negotiator would probably prefer some movement or productivity. These negotiators might prefer to make models, or walk while negotiating, or dramatise (act out) parts of the negotiation. An interpersonal negotiator is likely to prefer interacting with others and creating a social feel to the negotiations. The relationship aspects of the negotiation will be particularly important to these people. Intrapersonal negotiators are likely to be in tune with their own feelings and can sometimes come across as ‘tricky’ because of this. They might prefer time out from the negotiations to reflect and introspect, and to consider independently the progress of the negotiations. Naturalist negotiators would probably detect patterns in the negotiation and will be able to judge differences. It might be best to present information to these negotiators in classifications or typologies. Spiritual negotiators would most likely prefer a sense of attunement with the larger meaning of life and will see more than just the material aspects of the negotiation. Existential negotiators would also be most likely to contemplate the bigger issues, and will be looking at the larger ramifications of the negotiation — these people are the ‘big picture’ thinkers of negotiations. [page 151]

Increasing our emotional intelligence 7.12 From this summary it is clear that understanding one’s own and others’ multiple intelligences can help negotiators construct negotiations in a manner that will accommodate different intelligences. But how do negotiators increase their intelligences? Much has been written about emotional intelligence and its links with leadership qualities, workplace performance, social relations, mental and physical well-being, and, by extension, to negotiating ability.26 But if negotiators don’t already naturally possess emotional intelligence, how can they acquire it?

Like any other intelligence, emotional intelligence is multifaceted and begins to develop in childhood. Mayer, Roberts and Barsade define emotional intelligence as ‘the ability to carry out accurate reasoning focused on emotions and the ability to use emotions and emotional knowledge to enhance thought’. This ability contains four broad competencies: the ability to perceive emotion accurately; the ability to use emotion to facilitate thought; the ability to understand emotion; and the ability to manage emotion.27 Gardner conceptualised these as interpersonal and intrapersonal intelligences. In essence, a skilful negotiator needs to possess the skills associated with these intelligences in the heat of the moment negotiating. This is often very difficult, as the stress of conflict or the heat of the moment can lead to an inability to attend to the emotions in others, or to understand accurately one’s own emotions (as we discuss in more detail in the following chapter). There is also a further type of emotional intelligence capacity called ‘mentalizing’, which is ‘the ability to attend to mental states in self and others, and interpret behaviour accordingly’.28 The mentalizing capacity is a deeper than emotional intelligence because it pertains to more than just understanding and managing the emotions in yourself and others — it refers to the capacity to understand and manage mental states. Mental states are like interests: they are the needs, desires, beliefs, feelings, thoughts and dreams and so on, behind a person’s behaviour. They are also intrinsically intentional; [page 152] that is, they are about something, or mean something. Understanding what the mental state in yourself and others means can be a key to conducting successful negotiations. We discuss more about how to manage and use emotions in Chapter 8. However, for now it is worth noting that the DISC model is an excellent first

step in raising our awareness of what our own and others’ mental states might be in times of stress or pressure. Remember the needs of the directing style — results, recognition, challenges — and how this might directly hook into the fears that a stabiliser may have of standing out or being challenged; or the need of an influencer for change and fresh thinking, and how this might invoke fears and emotions in those who prefer incremental change or high standards. Skilful negotiating requires accuracy, richness and flexibility in perceiving, interpreting and acting on emotions and mental states.

Summary 7.13 The chapter opened with a model of the multi-dimensional nature of constructive negotiation. The model depicts the need for negotiators to understand themselves and others in negotiation, and to balance interpersonal skills with negotiating skills. Next, we gave an overview of interpersonal skills and described how, although the skills seem quite simple to acquire, the greater skill is in being able to use them in the heat of the moment. We then explored conflict and examined the danger and opportunity available in conflict situations. We also described some ways of managing destructive conflict and creating constructive conflict. Following the conflict discussion, we introduced the DISC model of behavioural patterns and negotiation styles and discussed ways in which negotiators can use knowledge of people’s stylistic differences constructively in negotiations. After that, we explored ways in which to work with power differentials in negotiations. We identified the myriad of sources of power that are available to negotiators. Finally, we introduced Gardner’s ideas about multiple intelligences and discussed how these might influence negotiations. Related to Gardner’s model, we returned to the idea of reflexive practice from Chapter 1, and the value of building levels of awareness. The chapter concluded with a consideration of emotional intelligence and the skill of mentalizing, and how developing these might assist with the interpersonal and intrapersonal aspects of negotiating. [page 153]

Key negotiating points 7.14

The key negotiating points covered in this chapter included:

Working with your strengths and on your weaknesses. Understanding yourself, your sources of strength and areas of weakness will assist you to become a better negotiator. Develop a respect for conflict and recognise that there are great opportunities for change and improvement in conflict. Skilled negotiators will develop strategies for turning the conflict from a destructive one into a constructive one, and will reap the benefits that a raised awareness to conflict can create. Knowing me, knowing you. Identifying your and others’ differences in style, intelligences, power, needs and fears can lead not only to reduced conflict, but also to constructive negotiations. Recognise that difference can create conflict, but it can also create value. Choosing to ignore that people are different can lead to conflict. However, the way to create value in negotiation is to utilise these differences. People have differences in interests, style and power, and different procedural and psychological preferences. Ultimately, a core element in negotiation is exploring these differences and using them to ‘increase the pie’ — this assists everyone in the negotiation to share in the riches that might be available.

___________________________ 1.

D Pruitt and J Rubin, Social Conflict: Escalation, Stalemate and Settlement, Random House, New York, 1986.

2.

The passage here is excerpted from the full text in E M Fox and L Urwick (eds), Dynamic Administration: The Collected Papers of Mary Parker Follett, Pitman, London, 1973, at 1–20. Adapted from M Deutsch, cited in R Lewicki, B Barry and D Saunders, Negotiation, 6th ed, McGraw-Hill-Irwin, New York, 2010, at 19.

3. 4. 5.

C Moore, The Mediation Process, 3rd ed, Jossey-Bass, San Francisco, 1986, at 27. R Fisher and D Shapiro, Beyond Reason: Using Emotions as You Negotiate, The Penguin Group, New York, 2005.

6.

R A Bush and J Folger, The Promise of Mediation: The Transformative Approach to Conflict, Jossey-Bass, San Francisco, 2005. See note 4 above, at 27.

7. 8. 9.

See Chapter 5 at 5.3 for the Negotiation Navigation Map. R Fisher, W Ury and R Patton, Getting to Yes: Negotiating Agreement without Giving In, 2nd ed, Penguin, New York, 1991.

10. H Cohen, Negotiating the Game, 1993 (audio cassette). See also J Folger, M S Poole and R Stutman, Working Through Conflict: Strategies for Relationships, Groups, and Organizations, 6th ed, Pearson, Boston, 2009. 11. J French and B Raven, ‘The Bases of Social Power’ in D Cartwright (ed), Studies in Social Power, University of Michigan Press, Michigan, 1959. 12. B Mayer, The Dynamics of Conflict Resolution: A Practitioners Guide, Jossey-Bass, San Francisco, 2000.

13. N Spegel, B Rogers and R Buckley, Negotiation: Theory and Techniques, Butterworths, Sydney, 1998 (the first edition of this book), at 179. 14. R Korobkin, ‘On Bargaining Power’ in A Kupfer Schneider and C Honeyman (eds), The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator, ABA Section of Dispute Resolution, Washington DC, 2006, at 252. 15. G Van Kleef, C De Dreu, D Pietroni and A Manstead, ‘Power and Emotion in Negotiation: Power Moderates the Interpersonal Effects of Anger and Happiness on Concession Making’ (2006) 36 European Journal of Social Psychology 557–81. 16. D Shapiro, ‘Untapped Power: Emotions in Negotiation’ in Kupfer Schneider and Honeyman, note 14 above, at 268. 17. Van Kleef et al, note 15 above, at 559. 18. B Mayer, ‘Allies in Negotiation’ in Kupfer Schneider and Honeyman, note 14 above, at 608. 19. Adapted from Spegel, Rogers and Buckley, note 13 above, Ch 9. 20. A Galinsky, J Magee, M Inesi and D Gruenfeld, ‘Power and Perspectives Not Taken’ (2006) 17(12) Psychological Science 1068. 21. H Gardner, Frames of Mind: The Theory of Multiple Intelligences, Basic Books, New York, 1983, and 10th anniversary edition, Basic Books, New York, 1993. 22. A Amsterdam, P Davis and A François, Lawyering by the Book, New York University Law School, New York, 2008. 23. H Gardner, Intelligence Reframed: Multiple Intelligences for the 21st Century, Basic Books, New York, 1999, at 35–41, as cited in C Menkel-Meadow, ‘Aha? Is Creativity Possible in Legal Problem Solving and Teachable in Legal Education?’ (2001) 6 Harvard Negotiation Law Review 97. 24. H Gardner, ‘Using Multiple Intelligences to Improve Negotiation Theory and Practice’ (2000) 16(4) Negotiation Journal 321–4. 25. See note 24 above, at 324. 26. J Mayer, R Roberts and S Barsade, ‘Human Abilities: Emotional Intelligence’ (2008) 59 Annual Review of Psychology 507–36; D Goleman, ‘Leadership that Gets Results’ (2000) March–April Harvard Business Review at 78–90. 27. Mayer et al, note 26 above. 28. J Allen, P Fonagy and A Bateman, Mentalizing in Clinical Practice, American Psychiatric Publishing, Arlington VA, 2008, at 43.

[page 155]

CHAPTER

8

Decision-making in negotiation: storytelling, emotions, memory and persuasion Introduction Our brain and conflict Making the most of memory Negotiators as storytellers Using your brain to make decisions in negotiation Emotional hijacking (or the case of the stuck amygdala) The power of empathy and contagious emotions Decision-making traps Emotions in negotiations — yours and theirs The reflexive brain Summary

Objectives of this chapter Learn how using your brain can make you a better negotiator Appreciate the power of storytelling to persuade

Learn how to manage emotional hijacking Understand that rational decision-making has significant emotional input Learn the power of framing for emotive pull and perception of risk

[page 156]

Introduction 8.1 This chapter builds on the previous chapters dealing with communication and interpersonal skills, specifically offering insights from the brain and behavioural sciences to enhance your negotiation skills. Constructive negotiation is about good thinking and making smart decisions. Traditional views of decision-making in economics have focused on the negotiator who operates on a purely logical and rational basis.1 While this research is useful, it appears to us to be incomplete. It assumes that we are always sensible, rationally enlightened and wanting to maximise gains that are economically and mathematically quantifiable. It tends to neglect the fact that, as mere human beings, we are affected by the vicissitudes of life and make imperfect decisions based on both rational and irrational factors. Research from the brain and behavioural sciences offer exciting contributions to fill this neglected space in negotiation theory and practice. We begin this chapter by taking you on a short journey into your brain. Neuroscience offers useful, biologically based insights into how we manage emotions and make decisions — two functions which are essential to negotiating.2 The research is also optimistic about how we can make better use of our brain for all sorts of purposes. We then follow with findings from the behavioural sciences relating to persuasion, decision-making and managing emotions.

Our brain and conflict 8.2 There is an important thread that is emerging in the science of the 21st century. It is the finding that we are all interconnected, that we are porous

beings with the ability to influence not only ourselves but one another in ways not previously contemplated. What we previously knew as real, that is, the Cartesian duality of mind and body and the notion of separateness in relation to individuals and objects, is a fast-fading myth.3 [page 157] This new paradigm for understanding and experiencing the world has profound implications for our approach to conflict. It suggests that how we think can influence the development and life cycle of a dispute.4 In other words, attitude affects outcome. In this context neuroscientists and others are exploring the pivotal role of emotional and social intelligences in decisionmaking, negotiation and conflict resolution.5 These scientific findings offer each and every one of us valuable insights into how our thoughts, feelings and behaviour can directly shape how we and others handle disputes and the ultimate outcome of those disputes. Science also suggests reasons why a conciliatory approach to conflict might be more effective than a confrontational one — essential grist for the negotiation mill. 8.3 So let’s start with some — highly simplified — brain work.6 The good news for all negotiators is that we have not one, but three brains. Our three brains — the rational brain, the emotional brain and the lizard brain — work together to support multiple intelligences in ways that have important implications for negotiators. So let’s begin with a brief description of each of our three brains, represented visually in Figure 8.1. 1. Our rational brain is centred in the frontal cortical areas that are primarily responsible for the higher brain functions like logic and complex reasoning. 2. Our emotional brain largely involves the limbic system. It is our centre for: – ‘emotional’ instinctive, reactive behaviours, such as ‘fight or flight’; – storytelling; – context; and

–

memory. [page 158]

Figure 8.1:

We Have Three Brains

An important role in the emotional brain is played by the amygdala.7 Amygdala is a Greek word meaning ‘almond’. It is the name given to the almond-shaped piece in our brain which helps to manage the information flow between our different brain centres. It is a little bit like a volume button, enhancing or dampening informational signals sent to various parts of the brain structure.8 This factor is very important in relation to decision-making. There is a high level of interconnection between emotional centres and higher functioning areas. We will come back to it later in this chapter. 3. Our lizard brain manages our basic biological survival functions including breathing and sleeping. Data inputs to the brain occur at various points. According to one view,9 when impulses first reach the brain structure they go to the emotional brain, and certain stress signals will also go to the lizard brain. In the normal course of events, some of this information is sent straight on to the rational brain. However, the amygdala will respond immediately to threatening situations by releasing hormones and neurotransmitter substances, which trigger body responses before the rational brain has had a chance to properly process the situation. These types of reactions are sometimes referred to as ‘flight or fight’ responses. Here, the normal judgment system is turned down and

[page 159] more primitive responses are amplified; it is a time for action rather than deep thought. In the contemporary world, many of life’s stresses trigger this response and place us in a heightened state of arousal that takes its toll on our bodies.10 Flight or fight responses can also be triggered when a creative new idea makes us feel uncertain about things of which we previously were sure. The biochemical changes in our brain may make us aggressive, fighting the new idea, or they may make us timid, fleeing from it.11 Recall the last time you were involved in a conflict. Although it might not be comfortable, try to remember what it was like for you. How you felt (were you anxious? angry? disappointed?), how you reacted physiologically (were you flushed or perspiring? what was your heart rate?), what you thought (‘You idiot, I knew you weren’t up to it’), and what you said … or didn’t say.

Making the most of memory 8.4 As a negotiator, you will often be dealing with complex layers of information. From your brain’s perspective, this means that you will be utilising both your long-term memory and your short-term memory throughout the negotiation. Memory is linked to different parts of our brain structure, and therefore it is useful to address how memory works before moving on to the implications for negotiators. There are three types of memory: immediate, short term and long term. Immediate memory can take in a massive amount of information, but only for a couple of seconds. Some of this information passes into short-term memory, which works as a kind of central processor for the brain. We can think of it as our working memory. Certain information from our short-term memory will eventually establish itself in our long-term memory. The capacity of our short-term memory has been the subject of significant neurological and psychological research over the last 60 years. The first seminal study on short-term memory capacity was conducted by Millar (1956). He famously argued that our short-term memory can only hold 7 (+/−2) pieces or ‘chunks’ of information at any given time, and so was

coined the ‘Magical Number 7’ for short-term memory. While Millar’s was an early seminal study in the field, more recent research has expanded on these early findings. Recent studies continue to show that our short-term memories do have a limited capacity, and that ‘chunking’ is critical to the amount of information we can hold in our short-term memory. So this [page 160] means that information needs to be presented in chunks both verbally and visually with the aim that negotiators at the table will be able to recall the chunks, and then be able to follow up on the detail. At the same time, these studies show a lot of individual difference in the amount and type of information that we can retain. Figure 8.2:

‘Think in Chunks’

For example, Cowan posits that short-term memory is more likely to be the ‘magical number 4’ than 7, and that other processes are important in influencing our short-term memory limits. Factors that can affect our shortterm memory abilities may include: our level of rehearsal of the information in our short-term memory (for example, practising in front of the mirror before going into a negotiation); our level of attention, the amount of time elapsed before we must recall the information, the amount of interference we encounter; and our memories’ overall ability to recall information when needed.12

Further, certain types of information may be easier than others to ‘chunk’ and so seemingly increase short-term memory capacity. From a negotiation standpoint, the capacity of our short-term memory is important as this information is used by our executive functions for decisionmaking. So if we are unable to take in enough, or the right kinds of, information, this will have a direct impact on the quality of decisions that we make. A negotiator’s initial psychological state is important as certain negative states can reduce the amount of information we are able to hold in our [page 161] short-term memory. For example, anxious individuals absorb and recall less information in their short-term memory than non-anxious individuals. This means if negotiators are anxious at the commencement of the negotiation process, they will be more likely to miss key information or more regularly need information to be repeated (particularly following breaks) as they may have trouble holding and recalling multiple pieces of information at any given time. Essentially, the calmer participants feel during negotiation, the more likely they are to absorb the required information. If you notice that some parties seem to be mis-recalling or missing key information, it could be related to their short-term memory and the way in which they process information. The good news is that neuroscientific research suggests we can influence how our short-term memory serves us as negotiators.13 Through prenegotiation mindfulness activities that enhance focus and reduce stress, we can minimise sources of interference and raise our magic number. Here it’s important to pay attention to how much information we can hold at any given time and whether we have a preference for how we like to receive information. For example, when someone reads a news story aloud to you, do you find yourself asking to read it afterwards? If so, you may prefer to ‘chunk’ visual information. How do you cope with ‘interference’ during an actual negotiation such as interruptions and breaks, while at the same time retaining

and using key information? Recently one of the authors found herself in an unexpected situation, in which she had to bring her baby daughter along to a negotiation. Although the infant was well-behaved (by baby standards, that is) one of the lawyers at the table was completely thrown off balance. So, depending upon your short-term memory strengths and weaknesses, you may need to adjust aspects of the negotiation process. For example, you may choose to use checklists, note-taking, visualisations or you may ask to sit far away from the baby. Consider taking steps to accommodate different communication preferences in your negotiations. Think about using multi-modal methods of communication such as visual and verbal summaries and physically walking around the proposed site of your joint venture development. This will help all negotiators to better absorb, process and understand information. Also, keep breaks relatively short so as not to ‘interfere’ with the effective communication of key information from the session. Information finds its way into long-term memory by regular use, sequencing, storytelling and through strong experiences. For example, if you regularly dial a certain telephone number, this sequence will eventually [page 162] find its way into long-term memory. In the same way, particularly strong emotional experiences such as grief or shock will also lodge themselves in long-term memory. We have talked in general about information being absorbed into long-term memory. There are, however, two types of information: facts or knowledge (distinct chunks of information), and stories and skills (sequenced chunks of information). Facts can be stored in long-term memory in the rational brain, whereas stories and skills are connected to the emotional brain. So, when we are recounting a story, we are accessing our emotional centre.

Negotiators as storytellers

8.5 Reflect upon the last time you told a story which recounted a strong emotional experience for you. As you retold that sequence of events that formed the basis of your experience, you will have revisited the emotions of that experience. You may have felt angry, disappointed, bitter, relieved or grateful, depending on the contents of your story. Most likely, you would have brought forth emotions that, in turn, would have triggered further sequenced memory chunks connected to the story. Therefore, you will retrieve more details through storytelling and accessing your emotional brain than by trying to retrieve information from the long-term memory locations in the rational brain. Some people naturally tell stories as a kind of default mechanism to recall events. This is consistent with the theory of state dependence, which suggests that recalling information successfully may depend on your ability to visualise or sense the environment in which you acquired that information. For example, if you are debriefing with your colleagues on a past negotiation, you might find yourself recalling the venue, the décor, the names and faces of those participating in the negotiation and the seating arrangements, as you begin to explain the details of the negotiation. Telling stories can help you visualise the physical and emotional context of the information relating to the negotiation, which, in turn, improves your recall of specific information. Other long-term memory locations are in the rational brain, and, as explained in the section on emotional hijacking below (at 8.7), this part of the brain can shut down during periods of intense emotion or stress. For these reasons, the notion of telling a story is prevalent in negotiation culture. It is a medium commonly employed without conscious effort in negotiations. Similarly, when you are on the receiving end of an information dump, it may be much easier to take in the information if it is embedded in a story. Storytelling has a long and impressive history across human cultures. [page 163] The sharing of stories has traditionally formed an essential and integral part of the patterning of life and law for many indigenous cultures. For Indigenous

Australians, the Dreamtime explains through mythological stories how the world was created, while stories of the Dreaming establish the structures of society and rules for social behaviour, and set out the rituals performed to ensure continuity of life and land. Dreaming stories can be about the creation of sacred places, land, people, animals and plants, law or custom. Think of great speakers, persuasive personalities, and people that you enjoy listening to. Most, if not all of them, will be good storytellers and will also disclose information about themselves through personal anecdotes. George Washington was a famous storyteller. In 1783, his revolutionary army was on the brink of mutiny. Washington at first attempted to quell the mutiny with reasoned and rational arguments; however, it soon became obvious that the would-be mutineers were not listening. He then changed tack, squinting and pulling out his glasses, indicating that he wished to read out a letter from a congressman: ‘Gentlemen, you will permit me to put on my spectacles, for I have grown not only gray but almost blind in the service of my country.’ At this point, a number of officers started crying. He read the letter, which contained personal and deeply felt reflections of the congressman, and then walked out without further discussion. George Washington knew he had convinced his army not to mutiny, and the rest, as they say, is history. Figure 8.3:

Storytelling from the Emotional Brain

In another illustration, Steve Jobs has been hailed as the greatest corporate storyteller of all time. When introducing the first-ever iPod to an audience, he didn’t talk about the technology or the physical dimensions of the iPod. Rather he simply got excited about the idea of having ‘1,000 songs in your pocket’. So 1,000 songs in your pocket became a story. It fired up people’s imaginations. Moreover, Jobs’ personal

[page 164] excitement was contagious and was picked up by audiences all over the world. People listening to Jobs felt what he felt — excitement, anticipation. They felt part of the story. How did this happen? Studies in neuroscience have shown that emotions are contagious, that is, they can move between us without us being consciously aware of it. This process is made possible by mirror neurons in the brain, which fire up and ‘mirror’ the physical signals of another. In other words, when we watch others’ facial and body expressions, our brains — through the firing of mirror neurons — mirror what they perceive and thereby practise ways of relating to these expressions. This phenomenon helps to explain how we can have empathy for people we encounter without even speaking to them.14 It explains how we can be moved to tears by the story of a stranger, and how, in a short period, Steve Jobs can leave us nurturing the desire for 1,000 songs in our pocket. It also goes some way to explaining why it is difficult to sustain confrontational behaviour towards someone who is ‘nice’ to you. Empathy is one of the most subtle yet effective techniques of persuasion. Today, each and every one of us continues the oral tradition of storytelling — whether in coffee shops sharing with friends, at the negotiation table or at political rallies addressing thousands of people. In these various ways, storytellers can take on the transformative power of chameleons, slipping in and out of a variety of roles such as negotiator, lobbyist, activist, diplomat, trickster, conciliator, entrepreneur and agent of change. Persuasive speakers like George Washington and Steve Jobs know that logical argument will only get you so far. They tell stories that their listeners can relate to on an emotional level using narratives laced with personal storylines. This approach maximises persuasion power and increases the chance that your message will be remembered. Storytelling presents both opportunities and risks for negotiators. The opportunities in storytelling include: listening to the other person’s stories to identify their real interests and feelings;

enhancing your ability to remember more details. The short-term memory (central processor) can only deal with approximately four chunks of information at one given time in the absence of prepared materials containing detailed or complex information, listening to the other negotiator’s arguments through the medium of storytelling with its sequential structure may enhance your recall of events as you will store their stories in your emotional brain; [page 165] reframing information into stories that reflect understandable and manageable chunks of information; and influencing decision-making through emotional contagion and empathy (see also 8.8). The risks inherent in storytelling include the following: Stories focus on the past, and encourage blame and position-taking. Storyline arguments (arguments based on stories) are extensions of linear logic. They inhibit creativity, and can encourage positional thinking and conflict escalation. Storyline arguments usually focus on criticising and rejecting the other side’s version of the story, rather than on exploring possibilities for a mutually satisfactory agreement. If the stories are not new, telling them again will not persuade the other side. In this context, storytelling serves only to frustrate and agitate the other side because they already know the story and the last thing they want to hear is a version contrary to their own. Stories may avoid the real issue. When people tell stories, they often do not directly explain the problem. Rather, they explain how the problem arose; that is, the circumstances, events and behaviours that led to the problem. Alternatively, they can talk around the problem by telling a related story. Stories, especially in dispute settings, provide a one-dimensional, past-tofuture, victim–villain sequenced structure for information which, while easily retrieved from our brain, are unlikely to contribute in a positive way

towards constructive negotiations. Rather, these ‘melodramatic’ conflict narratives,15 demonise and depersonalise the person on the other side of the negotiating table, deepening and reinforcing difference, and limiting the scope for constructive negotiations. Here is a powerful story that shows how one person applied the constructive power of storytelling and avoided falling into the trap of a victim–villain story. In doing so, he pulled off one of the most unlikely negotiations in modern history. The person was Nelson Mandela; his negotiations with the then apartheid government in South Africa ultimately led to his release from Robben Island prison and facilitated his rise to power as president of South Africa in 1994. Preparation for these negotiations commenced decades earlier. During his 27 years in prison Mandela learnt not only the language of his oppressors, he also familiarised himself with their poetry, their literature, their music and their rugby. He got to know his jailers and in some cases their families. He learnt [page 166] their stories. As a result he was able to negotiate a new inclusive political climate for his country and avoid the bloody civil war that so many had assumed would be inevitable. Mandela’s political genius lay partly in his ability to understand the stories of the Afrikaners — and hence their culture and way of thinking. But his genius lay also in his own storytelling. Rather than reacting with angry stories of victimisation, injustice and persecution, as many black South Africans expected and even desired, Mandela offered stories of a future South Africa where no one would suffer because of the colour of their skin. Rather than stories of despair, he shared stories of hope. Rather than stories of revenge, he offered stories of reconciliation. Mandela’s narratives were not always well received. Initially, many did not understand their leader’s conciliatory approach and willingness to collaborate with ‘the enemy’. They were confused and disillusioned; some felt betrayed. Amid tensions that brought South Africa dangerously close to civil war, Mandela stuck to his storyline. He emerged as a tragic hero who saved a nation and sowed the seeds of

reconciliation. Upon his death in late 2013 he was celebrated as a giant of history. What Mandela did was extraordinary in the circumstances because it defied our human instinct to tell conflict stories that polarise, demonise and justify revenge.

Using your brain to make decisions in negotiation 8.6 Throughout history, patterns of how we tell stories have largely remained the same. Storytelling is wired into our DNA. More than 2,000 years ago, Aristotle argued that we make decisions based not only on logical– rational factors (logos) but also on factors that appeal to our feelings and imagination (pathos) and our sense of ethics and integrity (ethos). The great philosopher recognised that we are not purely rational beings responding to reasoned argument and evidence. In the 19th century Nietzsche, another great philosopher, was incredulous that his contemporaries spent all their time focusing on the part of the brain with which life on Earth has had least experience; namely, the rational brain as developed in homo sapiens. In recent times, there appears to have been a scientific shift to recognise the significance of the non-rational elements of the brain and specifically the integral role of emotions in so-called ‘rational’ decision-making. Rational thinking involves input from the rational and emotional brains. As we have seen from the earlier description of the brain, our three brains are not separate silos of grey matter. They spend a lot of time communicating with one another and working together with the assistance of the amygdala. In fact, it is the emotional brain that allows us to make smart decisions quickly as it searches its database of previous experiences. If we had to rely [page 167] solely on our rational brain, it would take forever to make simple decisions such as which brand of toothpaste to buy. Why? Because the rational brain would have to sift through all the available data, meticulously weighing up the

advantages and disadvantages of each brand. By the time you’d done that, you’d be ready for dentures. Therefore, emoto-cognitive processes cannot be neatly excised from each other; they occur in concert. Think about negotiations to purchase a residential property. Imagine you are in the bargaining phase of the negotiation and considering various ways to structure the financial aspects of a complex deal, which comprises four main elements: 1. the loan aspect, including terms and conditions relating to the repayment schedule; 2. the cash payment element; 3. managing the exit of a long-term tenant; and 4. the transfer of certain easements and other associated rights. Analysing the advantages and disadvantages of every change in the offer on the table could take hours. Yet you find yourself making decisions about the acceptability of the various offers being made in a matter of minutes. How can this be? Can you trust these reactions, or should you be going into caucus each time with someone to weigh up the pros and cons in order to make a rational decision? The answer lies in the connectivity of our brain structure. As your counterpart and you bargain back and forth, your emotional brains are playing a significant role in the interaction and the decision-making. The rational brain cannot process and analyse the amount of data involved in these complex offers and counter-offers in such a short space of time. Scientific experiments show that people who can only access the rational brain for decision-making, for example, as a result of damage to other parts of the brain, have great difficulty making decisions. They can spend countless hours deciding what they should buy at the supermarket, because they do not have the emotional brain’s input of past experience with food choices that helps them instinctively choose certain foods over others, certain products over others, and appropriate amounts of food. In making decisions, life experiences, which are stored as stories and associations in the emotional brain, input into the decision-making process. As data is placed in the rational brain, it is marked with positive or negative

associations based on past experiences. Thus, the image of a future outcome is linked with emotive association immediately.16 With this ‘emotional [page 168] knowledge’ input, we are able to make decisions more easily. Many of us will nevertheless justify our decisions by referring to feasibility studies, market surveys and other rational criteria and logical arguments. However, we may have already made the actual decision through the combined effort of our emotional and rational brains. Another aspect of the emotional brain relates to physical responses. As we explained in Chapter 6 in relation to body language, the body does not tell a lie. Physiological changes in our bodies can occur before our rational brain has had a chance to process the situation and recognise emotions, especially where the lizard brain senses a threat and passes the signal to the amygdala. Sometimes our physical reaction is so subtle that we might not notice it. For example, experiments have shown how the hair on people’s skin will react to a particular situation, indicating tension and discomfort, before they are able to articulate a response to it. These physical reactions inform the emotional brain at a subconscious, non-rational level. In a negotiation context, they may eventually translate into ‘gut feelings’ regarding the credibility and trustworthiness of the other negotiator, or the acceptability of an offer. Alternatively, they may trigger flight or fight responses.

Emotional hijacking (or the case of the stuck amygdala) 8.7 Emotions are ubiquitous. We cannot get rid of them. As we have seen, they are crucial for making choices and getting good outcomes. However, we must remain on our guard because emotions can be hijacked. Confrontation can set off destructive emotions that seem to take over and inhibit our ability to deal with conflict in a constructive manner. So far, we have considered the rational and emotional brains when they are

working well. However, this is not always the case. Previously in this chapter (at 8.3), we discussed the important role of the amygdala, the almond-shaped volume button that helps to regulate levels of data flow between the different brains. When the amygdala is functioning well, then decision-making, as explained above, occurs with input from the different brain centres — especially the rational and emotional brains. However, sometimes the amygdala gets stuck. This may occur when you are tense or stressed, for example, negotiating in a difficult or conflictual situation. Just as your muscles may become stiff and tense, restricting blood flow and causing pain and headaches, so your amygdala can become locked in a tense state so that communication between the brain centres is temporarily interrupted. Information enters your brain and goes to the emotional — and sometimes also lizard — brain as usual, but it is prevented from accessing the rational brain. As a result, you react from these brain centres without rational input. [page 169] This is referred to as emotional hijacking or emotional flooding. Good thinking is hijacked as emotions flood the brain and trigger flight or fight responses. Flight equates to avoidance of conflict and fight refers to confrontation. Neither is useful. During emotional hijacking the hormone cortisol is released by the adrenal gland into the blood as a management response to stress. Neuro-imaging studies show that emotional hijacking can be an extremely rapid and non-conscious process — 33 milliseconds can be all that is needed for our amygdala to respond to emotional stimuli.17 Unfortunately, while emotional hijacking can occur very quickly, it takes longer to recover from that release of hormones — more than 20 minutes (1,200,000 milliseconds), according to scientists. So when you are engaged in a conversation (storytelling) about a past event that has negative associations for you or the other person, be on your guard for emotional flooding. It can occur rapidly when emotions are triggered through neural pathways associated with extremely vivid experiences that can be recalled in great emotional and sensory detail, especially through

storytelling. Before we know it, our bodies and our minds are stuck right back in that argument from last week. In confrontational and stressful situations, we are all susceptible to a stuck amygdala and an overdose of cortisol. It is therefore crucial to be mindful of your body’s emotional warning signs that tell you that you are hurtling towards a heightened state of tension, frustration or anger. For some of us it will be an increased heart rate and flushed face, for others muscle tension or abdominal discomfort associated with changed blood flow. According to one scientific theory we have positive and negative feedback loops that increase and decrease stress. When we work ourselves up emotionally over a past event we are using positive feedback loops to activate our amygdala and associated areas,18 which in turn increases the stress response. Conversely, meditating uses orbitofrontal negative feedback loops to reduce stress-associated brain activity such as emotional hijacking. So, when you need to get back into a good thinking negotiating space, try some mindfulness activities such as going outside for a break and focusing on deep, slow and deliberate breathing. Put simply, we cannot think rationally and make good decisions when we have been emotionally hijacked, so we should not try. The same goes for those around us. If we notice that the other person does not seem to [page 170] be thinking clearly or is particularly stressed and anxious, then call for a break; give them time to get back into good thinking. It does not benefit anyone if the other party escalates emotionally and is unable to make a decision. Similarly, it is not useful if the other party agrees to something they later regret and subsequently attempts to sabotage the implementation of an agreement.

The power of empathy and contagious emotions

8.8 So far we have suggested that escalated conflict and confrontation tends to inhibit good thinking. Further, when you find yourself getting locked into an emotionally-laden confrontational situation, it’s best to take a break to enable you to get back to a mindful, balanced, emotionally-rational space. But what about side-stepping confrontation and taking another path altogether? When advocating constructive approaches to conflict, negotiation experts tells us to ‘separate the people from the problem’ and to treat the people differently from the problem.19 How differently? Well, it’s suggested that we should be ‘soft on the people’ and ‘hard on the problem’. All well and good. But what does it mean? And does it really work? As explained in 8.5 above in the context of storytelling, neuroscience has demonstrated with the discovery of mirror neurons that emotions are contagious. This helps to explain why it is difficult to sustain confrontational behaviour towards someone who is nice to you. Being soft on the people means using a constructive emotion such as empathy, rather than a destructive emotion such as anger, to set the emotional tone. Empathy is a whole-body phenomenon — it’s not just about what you say, but how you say it; it’s also about what you don’t say and how you feel and kinaesthetically experience what’s going on between you and the other. Research scientist Antonio Damasio,20 among others, suggests that what we come to experience as ‘emotions’ are in fact interpretations of physical sensations. In other words, there is an embodied aspect to emotions. Because emotions are contagious, it is hard to resist empathy — provided of course that it is authentic. Therefore, rather than waiting for emotions to flood our good thinking sense, we can use positive emotions, in particular empathy, to proactively shape how we and those around us respond to conflict. [page 171] When we demonstrate empathy, people feel recognised and listened to. Their mirror neurons start firing off and they are likely to reciprocate in kind by listening, acknowledging and, eventually, empathising back. Once we are

able to listen to each other as people, it becomes easier (although rarely easy) to get on with the business of negotiating difficult problems — together.

Decision-making traps 8.9 We have shown in this chapter that both the rational and emotional parts of the brain are essential for healthy decision-making. In addition, we have explored how storytelling can tap into the emotional brain and emotional memory and have a persuasive effect. We have also highlighted the dangers associated with emotional hijacking (stuck amygdalas) in relation to decision-making. In this section we examine a number of decision-making traps. These are scientifically proven phenomena that influence decisionmaking on an unconscious level and therefore potentially skew our sense of ‘being in control’ and ‘making rational choices based on all the evidence’. However, to the extent that we are aware of these decision-making traps, we may be able to counter their unwanted influence. For negotiators, what this means for their presentation is that it is all about framing. How you frame your interests, arguments, objections and offers will directly influence how the other negotiator responds. A party’s assessment of the risk associated with their position will be a product of their affective associations, as the following insights from the research show.21 Mere exposure effect. Research tells us that we can influence people’s preferences and decisions by exposing them to a particular stimulus. For example, simply exposing someone to pictures of people enjoying CocaCola makes that person more disposed to like Coca-Cola when they drink it, and to make it their drink of choice. Similarly, in a negotiation context, exposure to positive or neutral pictures of the other negotiator prior to the negotiation may help to create a positive response at the negotiation. This phenomenon is called the mere exposure effect22 and it assumes that there is no pre-existing negative association to the other negotiator; in other words, that there is either no association or a neutral one. Once a negative emotive association has been made in relation to a person or a commodity, it is difficult to

[page 172] change. Remember first impressions count. Other experiments show the effects of temperature, light and other elements on preferences, choices and decision-making generally.23 Factors with emotive weight have greater gravitas. The weight of a factor in decision-making depends on the ease with which it carries an emotional association. Think of television commercials that advertise lottery tickets. They never talk in terms of statistics; rather, they show images of ordinary people, just like you, who are so happy because they have won the lottery. In other words, these commercials use storytelling and imagery to create an emotive frame — and it works! In negotiation, the use of relevant benchmarks, criteria and standards will be more influential if presented in an emotive frame. Here, story and narrative formats tend to offer more influential warnings than statistics. For instance, John is exposed to a fellow school student with bird flu. If he is told that he has a 10–20 per cent chance of contracting the virus, it may seem quite a minimal risk to John, particularly if he is a youthful optimist. However, if he is told that two out of every ten people will contract bird flu, his brain is more likely to visualise two real people not dissimilar to himself. The second frame creates a more tangible and emotive frame, and is likely to heighten John’s sense of the risk involved. Conversely, if he is told that eight out of ten people will remain healthy and not contract the virus, John is likely to focus on the eight healthy people and minimise the risk to himself. Will he tell his football coach about the risk? If so, how will he frame it? Comparing your loss or gain to that of the other negotiator is another highly emotive frame and therefore extremely influential. However, it is not always the most helpful frame. According to interest-based negotiation theory, getting the best outcome for yourself may mean that you have to assist the other negotiators in getting their interests met. If you have a win–lose frame and measure your success by winning more than or losing less than the other party, you may miss opportunities to expand the pie and maximise your slice of it. Think back to the classic orange story described in Chapter 3. Two sisters are fighting over an orange. From a win–lose frame, one sister may believe she has ‘won’ if she successfully grabs the bigger of the two halves

from the kitchen table after the orange was cut. But what if the negotiation were framed in terms of their respective needs? That same sister would ‘win’ more — in fact, everything she needed — either all of the juice or all of the zest from the orange rind. And her sister [page 173] would similarly win everything she needed. It is all in the way they frame their choices. Decisions are affected by the frame of certainty. People feel safe (emotive value) with certainty and attach considerable importance to it. Accordingly, if you can frame your offer with no conditions attached and in terms of guarantees, warranties, no risk, certainty and safety nets, not only will it be easier to sell but also most people will make extra concessions in order to have the peace of mind that certainty promises. For this reason, house purchasers who offer cash contracts usually can push the price down a little more. This principle is reflected in an old proverb: ‘A bird in the hand is worth two in the bush.’ It is known as the Allais Paradox, after Maurice Allais who demonstrated the phenomenon and the inconsistency between human reasoning and the value placed on certainty, on one hand, and decision theory based on mathematical formulae, on the other. For example, if you have an 80 per cent chance of receiving $40,000 for selling your car or 100 per cent of getting $30,000, which would you choose? Most people would choose the $30,000 although the value of an 80 per cent chance of receiving $40,000 is mathematically higher, that is, it is $32,000. Decisions are affected by the framing of choices: positive gain or negative loss. When you are facing a loss, such as losing your job, your home, a business contract, you are more likely to take risks to prevent that loss occurring. In a litigation context, this might mean that you are prepared to take your chances in court. People hate to lose. Conversely when you think you stand to gain something, you are more likely to be risk averse. In a litigation context, this would mean that you are more likely to settle. The principle does not apply to repeat players, such as insurance companies, which are relatively risk neutral in the sense that they ‘have a present interest

in the impact of settlement on future cases — the message settlement sends to future claimants’.24 Negotiators can therefore work around this effect by appropriate framing and reframing to induce the other party to change their reference point and see settlement as a gain in terms of peace of mind, the opportunity to begin new business projects or investments with the settlement sum, and the end of litigation, stress and uncertainty — rather than a loss in giving up a right to pursue a monetary claim. [page 174] Not surprisingly, certain losses are more attractive when framed as insurance premiums or investments than when framed as monetary losses. You may notice that sales staff and television commercials now talk about your investment in your family’s future when it comes to life insurance and even funeral insurance. At the same time, they personalise the risk of premature and unexpected death in a storyline so that it has an immediate emotional impact on listeners. Finally, sellers and advertisers frequently use imagery to affect your perception of the cost of the insurance. For example: ‘This investment in your future costs only $3.60 a week; that’s as much as a cup of coffee. That’s right, one cup of coffee a week!’ Well, who wouldn’t buy funeral insurance after listening to that? Summing gains and losses? A series of smaller gains is valued more than a single gain of the same amount. Consistent with this principle, people feel they lose less value by one large loss than by an identical loss suffered in multiple smaller parts. Take gambling, for example. Winning ten hands at Blackjack worth $5 each will be experienced as more valuable than a single win of $50. Conversely, losing a single hand worth $50 will seem less painful than losing ten hands worth $5 each — especially if they are in a row! Ownership can change your valuation of a commodity. Once people own something, they place a higher value on it than the amount they would be willing to pay to acquire the same item. Known as the ‘endowment effect’, the fact of ownership enhances the value that we place on items. This is one reason why home owners tend to think their house is worth

more than prospective purchasers do. So, if you are selling something you own, be aware of the endowment effect and check your offer against some independent criteria or a trusted outsider’s opinion to minimise the risk of overvaluing and therefore missing out on a sale. The perception of choice. Another factor relevant to framing is knowing that people like to have choice. Providing the other negotiator with a range of options makes it difficult for them to say no to all of them. Furthermore, offering one option that is less attractive makes the other options look even better than they might otherwise appear. For example, let’s imagine a dispute involving damaged industrial cleaning equipment in which the cause of the damage (and responsibility for it as between the supplier and purchaser) is contested. The purchaser originally paid $2,000 for the equipment, which has now been superseded by a newer model. As the parties move towards options and offers, the supplier of the equipment offers the purchaser the following choice: [page 175] 1.

repairs to the equipment (old model) for $800, calculated on the cost of replacement parts only and no labour costs; or 2. new equipment (new model) for the discounted price of $1,500; or 3. new equipment (new model) with two years worth of regular servicing for the discounted price of $1,500. According to Ariely,25 most people faced with this choice would take the third option (new equipment with two years worth of service parts for the discounted price of $1,500). He explains that there are a number of factors at work here. First, people always compare things when making decisions and they prefer easy comparisons. So in this example, options 2 and 3 are easy to compare, and option 1 is the odd one out. It’s not that it’s impossible to compare option 1 with the others; it is just not as easy as comparing options 2 and 3, both of which offer new equipment. Next, when people compare options 2 and 3, it is clear that 3 is the more favourable option. In fact option 2 effectively becomes a non-option and Ariely refers to it as a decoy

option because it makes option 3 look even better than it otherwise would. For this reason most people would select option 3 even though it is more expensive for them than option 1. However, if the choice was just between options 1 and 3, that is: 1. repairs to the equipment for $800 (calculated on the cost of replacement parts only and no labour costs), or 3. new equipment with two years worth of equipment servicing for the discounted price of $1,500, far fewer people would select the latter option and the pattern of selection by disgruntled purchasers would be split as between the two options. This simple example shows how powerful framing can be when putting together offers. Free. Similarly, the frame of ‘free’ can have an extraordinary impact on decision-making. If you can throw something for free into the offer, people find it very hard to resist. Why? Ariely suggests the following reasons: in every transaction there are pros and cons and negotiators are constantly weighing the pros against the cons before making a decision.26 However, with ‘free’ there is no apparent disadvantage. Rather there is an ‘emotional charge’ associated with free that makes [page 176] us think we would be foolish not to take the ‘free’ item. Think of all the ‘free’ gifts with purchase that we collect and extra bonus mugs that tempt us to purchase a particular brand of coffee (even if we don’t really like that brand). While these are sales examples, they easily translate into negotiation spaces. For example, in refinancing deals a bank might offer ‘free’ perks associated with certain credit options, for example, free credit card, higher credit limit, interest-free for a limited time. In disputes involving the sale or repair of goods, one party might offer the other ‘free’ shipping of goods or ‘free’ bonus goods if they (re-)order a certain amount. Combined with the power of offering choice (above), the ‘free’ factor is a particularly powerful frame.

The unfairness trap. In November 2013 Iranian Foreign Minister Javad Zarif issued a statement about Iran’s nuclear program via YouTube. He appealed to viewers: ‘Imagine being told that you cannot do what everyone else is doing. Would you back down? Would you relent? Or would you stand your ground?’27 Effectively the foreign minister was appealing to our universal human sense of fairness. No one likes to be told what to do, or what not to do. And when the person telling you to refrain from engaging in a particular activity is fully engaged in it themselves, well, that seems unjust and unfair. Behavioural studies have consistently shown that negotiators, and even monkeys, will reject offers they perceive to be unfair. Franz de Waal’s famous capuchin monkeys offer us a mirror to our own conflict and negotiating behavior. In one famous experiment involving two monkeys being rewarded with food for tasks completed, the monkey receiving inferior food in return for completing the same tasks as his counterpart, engages in a temper tantrum and, it seems, would rather starve, than continue to be treated unfairly vis-à-vis his colleague in the next cage.28 So even if, on ‘a balanced view’, it might seem a smarter choice to accept the unfairness and get on with life and business, the sense of unfairness can and does colour our decision-making process. Building on the behavioural research, brain imaging research has established that the degree of perceived unfairness correlates to neural activity in the insula cortex region. Interestingly, this is the same area of the brain that is activated when we feel pain. Ouch! In other words, unfairness hurts. Experiencing unfairness is, as explained in relation to emotions generally, a physical phenomenon. Our sense to reject unfairness is so strong that it is sustained even at substantial cost, such [page 177] as the significant economic sanctions that, until recently, had been imposed on Iran. As one commentator wrote in 2014: [T]his impulse to reject perceived unfairness has seemingly motivated Iran’s nuclear ambitions far more than an actual need for an indigenous nuclear energy program. In just the last few years,

Iran has suffered well over $100 billion in lost foreign investment and oil revenue to defend a nuclear program that can only meet 2 per cent of the country’s energy needs. In other words, Iran has debilitated its chief sources of income — oil and gas revenue — in order to pursue a project with little comparable payoff. Prominent nuclear physicists such as Princeton’s Frank von Hippel estimate that it would cost Iran at least 10 times less to import enriched uranium from abroad, as most nations that use nuclear energy now do (including, increasingly, the United States) than to produce its own uranium locally.29

In other words, the negotiations do not seem to be about economics but about integrity and fairness. Subsequent to Foreign Minister Zarif’s YouTube address, the negotiation dynamics shifted, with fewer ultimatums from the US and greater space created for engagement.30 As a result, a nuclear framework agreement was reached in April 2015 — significant progress in this longstanding conflict. In another illustration, Western Australian mining magnate Gina Rhinehart, one of the richest women in the world, continues her battle with a number of her children who seem to feel that their mother has treated them unjustly in relation to what they consider to be their rightful share of multi-billiondollar mining projects and other business enterprises. The children appear to have paid a high price in order to challenge their mother. For example, ‘They have lost the special risks insurance, they have given up 50 per cent of the Hope Downs proceeds that would have kicked in from January 1, 2012, and the letter their mother wrote to them in September 2011 discussing bankruptcy and capital gains tax has alerted the Australian Taxation Office to a possible capital gains tax claim’.31 [page 178]

Emotions in negotiations — yours and theirs 8.10 As we have discussed, emotions can help or hinder a negotiation. Therefore, learning how to manage emotions, yours and the other party’s, is imperative. Emotions can be helpful in a negotiation as you learn to read the information they communicate: if you are able to create a positive emotional environment, the negotiation is likely to proceed more effectively and efficiently. Negative emotions, however, are likely to hinder the negotiation.

We have explored some ways to identify your warning signals and recognise when you might be susceptible to a stuck amygdala. However, more importantly, how can you stave off a stuck amygdala, and how can you manage your emotions well enough to enable you to frame your communication in a way that will elicit the most favourable emotional response from the other party? How do you go about dealing with negative emotions and converting them to positive emotions, and how can you use emotions to create constructive negotiations? Luckily, some mindful and emotionally intelligent writers offer us some tips on this, and we share these with you below. In the first instance, though, let’s look at which emotions in particular are difficult to manage.

The meaning of emotions 8.11 There are some basic emotions such as fear, anger, sadness, disgust, trust, joy, surprise or anticipation, but along with these basic emotions is a range of other more subtle emotions such as frustration, aggravation, awe, isolation, and so on. Emotions are textured, layered and interwoven. Rarely does one basic emotion encompass the whole response to a situation — for example, fear might be accompanied by anger or shame accompanied by disgust, and so on. Further, when we have conflicting feelings it gets even more confusing. In addition, we can have aporetic feelings, or feelings when we don’t know what we feel.32 Another type of emotion we can experience is the meta-emotion — the emotion we feel about feeling an emotion. For instance, we often feel embarrassed about feeling angry, or angry about feeling guilty. It is very important for negotiators to understand the meta-emotion of the self and others, as meta-emotion may filter the expression of a basic emotion or it might disguise the expression of a separate emotion altogether. As negotiators, we need to be able to read the emotions of both ourselves and the other party, or otherwise we might misread, ignore or negatively influence the emotional climate of the negotiation. However, we should not feel afraid of emotions or meta-emotion. All emotions can be valuable. [page 179]

They are a part of who we are as human beings. The challenge is finding appropriate ways to express emotions, especially when we are engaged in the delicate art of negotiating. What is probably more important for negotiation — and for life in general — is identifying emotions and connecting to the meaning of one’s emotions. Once we find meaning, then we can act upon that meaning. We take a closer look now at several emotions that are difficult for people to manage, starting with anger. Although anger is one emotion that usually causes significant challenges for people in negotiation, there are other emotions that can be just as tricky: Anger is one of the most intense emotions to confront negotiators. There are many triggers for anger (feeling vulnerable and exposed, shamed, humiliated, treated unfairly, or having our core concerns crossed — see Chapter 7 on working with conflict). In negotiation, researchers have found that unwarranted time pressures, or the other negotiator misrepresenting information, making excessive demands, showing personal animosity, questioning or undermining our authority, or dwelling excessively on detail, can all trigger anger.33 Anger is usually felt when there is an interference or blockage of a desired goal, especially when that goal is linked with identity and the blockage is seen as unfair, and where someone is to blame (usually the assumption that someone intentionally committed this offence against you).34

Anger can be both useful and destructive in a negotiation. Not all anger is negative — used wisely, it can fire negotiators to change or action, but misdirected anger can lead to destruction. The trick is to manage anger and use it appropriately. Resentment. Described as ‘frozen anger’, resentment is a feeling that leads some people to blame others when they are hurt.35 If resentment is not managed, it can lead to intractable and unhealthy self-righteous positiontaking. This in turn can lead to a failure to take responsibility for a situation, and a refusal to institute problem-solving to change it. Hurt. Often lying underneath resentment and anger is hurt. People can feel hurt when their needs are unmet or their self-esteem wounded. Hurt can make us withdraw and seek revenge. However,

[page 180] it is sometimes easier for others to acknowledge hurt than anger, so when talking about anger it is sometimes best to frame it as hurt. Regret. As with hurt, often when people show anger and resentment they are hiding regret. We think of regret as the pain and sorrow of anger and resentment, and it is accompanied by an intense feeling of the unfulfilled potential of a situation. We often hold on to regret and have difficulty acknowledging it because of fear, anxiety or embarrassment — this can often lead to an impasse in negotiation. Guilt comes when we act or feel in a way different from what we expected of ourselves. We can feel guilt about the way we behaved or thought, and the feeling is often accompanied by a sense of tension and remorse over the ‘bad thing’ done or thought. Guilt can be self-destructive if not acknowledged; but it can also be productive if we use the feeling to motivate us to understand the source of the guilt and to find ways to resolve it. Shame is the flip side of guilt. Rather than acting in a way contrary to our expectations, we feel shame when we fail to act in a way that we think we should. The emphasis is more on the self (and the sense of worthlessness and powerlessness), rather than the act (as in guilt). Because shame is connected with intensely painful internal feelings, it is sometimes referred to as ‘the master emotion’36 with which anger and shame can co-occur. The anger in this sense is the anger at self, disguised as anger at the other. Feelings of shame in negotiation can lead to destructive behaviour as we use anger to defend ourselves against the feeling, or to find somewhere to place the blame other than with ourselves. As with all negative emotions, shame is best acknowledged and accepted to enable a sense of empowerment and a restoration of belief in oneself. Sadness is usually felt when there is the loss of something or someone very close to one’s identity or important to it, but in circumstances where there is no one or nothing to blame for the loss, and where there is nothing that can be done to repair the loss.37 Sometimes we disguise sadness with other

emotions, such as disgust or arrogance, as we strive to protect ourselves, and this can adversely affect the negotiation climate. Fear is usually felt when we feel unable to take control of a situation that we perceive may result in a loss of something that is personally important to us. It comes from the anticipation that something that we have little ability to alter will lead to an outcome where we will [page 181] be diminished in some way by either physical or emotional hurt, or by the taking away of resources or identity. Fear arises from our interpretation of the situation, so it is always handy to remember that separating the interpretation from the actuality is a good first step in managing fear (we will discuss this further below). Fear, like anger, can be constructive or destructive in negotiation. If negotiators are unable to test their perceptions, then fear can create deadlocks and unproductive negotiations. However, fear can also lead negotiators to proceed with caution, seek more information or look for assistance when required in a negotiation.

Managing your emotions in negotiation 8.12 Emotions can have a positive or negative influence upon negotiations, depending on how negotiators manage and express them. Understanding the meaning of the emotion is a major first step in managing them. However, it is not always that simple and sometimes negotiators don’t recognise their emotions, let alone acknowledge or analyse them for meaning. Because of this, negotiators can often have difficulty staving off the ‘stuck amygdala’. Some tips for managing one’s own emotions are: Acknowledge the emotion. We all feel emotions and there is no emotion that a person should not feel. Therefore, to avoid being caught up in metaemotions — that is, feeling angry for feeling sadness, or feeling guilty for feeling angry, and so on, or emotional flooding — it is important to acknowledge the primary emotion and accept it as part of being human.

Mentalize — understand what the emotions are about; what they mean. Elaborate the meaning of your emotion and look at your autobiographical narrative to determine what your emotions are about — what are your emotions telling you about your mental state? Accept what the emotions mean and find appropriate ways to communicate it. Apart from emotional flooding and a stuck amygdala, it is often not the emotion that is the problem, but rather the way that we express it or act upon it. If when negotiators are negotiating, they can acknowledge the emotion and mentalize it, then the next thing to do is find appropriate ways to express it; in other words, to ask themselves: ‘What do I need to say and how shall I say it?’ It can be difficult to acknowledge, accept, mentalize and express emotions appropriately when in the midst of negotiations. However, there are some simpler techniques for managing emotions in the heat of the moment. Remembering that no general principle works in all situations with all people, these are techniques that you can try and discover which ones work for you — in essence, this is the art of negotiation. [page 182] Self-talk. If you challenge your emotions and thoughts early in the emotional build-up, then you might have a better chance of managing them. Empathise with yourself. Allow yourself the emotion and empathise with yourself. This simple act of acknowledging and accepting can help dissipate overwhelming emotions. Use behavioural techniques. When your body is stressed and tense, you can relax, stretch out, have a massage, or find some other way to get your body back to a healthy functioning space. The same physiological principles apply to a stuck amygdala. Try the following techniques: – take time out: go to the bathroom, get a drink of water, go for a walk on your own, breathe … – relaxation techniques: tense and release your leg muscles under the table,

–

–

clench and stretch your hands, stretch your arms, gently curl and uncurl your toes … write instead of speak: write down points that you wish to say later in the negotiation, when you have cooled off — if you still need to say them, say them later … go to a peaceful place in your mind for a few seconds: think about a place in which you are relaxed and at peace; go there in your mind and sit in the serenity for a couple of seconds — if you miss anything, you can simply ask the person to repeat it …

Name it. Name your emotions to the other negotiator and explain how you are feeling. Apologise for any misunderstanding that your own expression of emotion might have caused. Don’t blame, just name: for example, ‘I’m sorry. I’m really angry about this whole thing right now. Just give me a second’. Prepare, prepare, prepare. Remember that you can avoid the overwhelming emotions of anger, fear, hurt and so on, if you are prepared for them. In doing your research and preparation, you will have built up a good idea of what might be in store for you emotionally in the negotiation. Practise how you will react to negative comments. You can also avoid feelings of fear by having reality-tested your assumptions before the negotiations begin — knowing your alternatives can help you to avoid anger or hurt. Be prepared and prepare. This discussion of emotional management techniques focuses mostly on managing negative emotions. Yet positive emotions can also have a negative influence. For instance, the presence of positive emotions such as joy or relief can make a negotiator less likely to scrutinise the other party’s arguments and less vigilant about his or her own goals and strategy. Negotiators need to ensure that, while enjoying the positive feelings that might be emanating [page 183] from a negotiation, they are also attending to the detail and the search for optimal solutions. Each of these techniques is part of developing greater

awareness of self. Developing self-awareness opens up the capacity to develop greater awareness of your negotiating counterpart.

Managing others’ emotions 8.13 If monitoring and managing one’s own positive and negative emotional responses is part of the art of negotiation, then perhaps managing the other negotiator’s emotions is the science of negotiation. Discerning and working out how different people respond differently to different emotions and management techniques is a science. Some of the ideas that are discussed below are similar to those that we explored for managing your own emotions. Once you have mastered the techniques for yourself, you can use some of them to manage the emotions of others. Acknowledging, accepting and mentalizing. These three points are just as salient in managing others’ emotions as they are in managing one’s own. Negotiators need to be sensitive to the emotions of the other negotiator — this may be expressed visually, vocally or kinesthetically. It is often best to acknowledge the emotion in the other, accept it, mentalize it (that is think about what the emotion might be about) and then use it to ensure a constructive discussion. Here is a quick six-step guide to doing this: 1. Receive and respect: Receive and respect the emotion, but do nothing. 2. Listen and acknowledge: Use your listening skills to check the emotion and then acknowledge: ‘It appears that what is happening is making you frustrated — is that right?’ 3. Mentalize: Attend to your own mental states and to theirs. What might be happening for you both and what does it mean? 4. Clarify and explore: ‘Let me check with you, when we spoke about X that seemed to make you sad’ ‘What was it in particular that made you feel that way?’ 5. Accept and develop options: ‘I’m sorry that you are feeling that way, how might I have put that differently?’ 6. Repeat if necessary. Name and challenge early build-up. As above, you can use empathy early in the exchange to minimise the build-up of emotion in the other

negotiator. In addition, you can address the emotion directly and issue the challenge that you both deal with it: ‘You seem angry at the moment. I apologise for that and am wondering how we can deal with it.’ [page 184] Remain fluid and flexible. Emotions are multi-dimensional and fluid. As discussed, they can change rapidly and without warning. Therefore, remaining open and flexible towards another’s emotional state can assist in avoiding the crystallisation of the emotion. As easily as emotion can escalate so it can diminish, and being alert to this possibility can help to avoid an impasse and negative positional behaviour. Behavioural techniques. The same behavioural techniques that work for you might work for the other negotiator. You could suggest a time-out, a walk, that you both write things down rather than speak for a moment, or maybe even a moment’s silence to regroup and centre yourselves. Where appropriate, share your feelings. Sharing your understanding of another’s feelings might involve sharing your own feelings as well. As discussed above, sometimes sharing can promote trust. Prevent the meta-emotion. Acknowledging emotion as a normal part of negotiating can assist in preventing the meta-emotion and any embarrassment that might ensue. If it appears that the other negotiator is feeling shameful or embarrassed, then looking for ways of normalising the experience can assist him or her to resolve the emotion.

Using emotions 8.14 This last technique is one that negotiators can use not only to manage emotions but also to progress the negotiations. Negotiators don’t always need to manage emotions. Expressed emotion can be used in constructive and creative ways throughout the negotiation to assist in its progress, for instance: Emotions can enable us to get things right. Our emotions can attune us to the world around us, enabling us to quickly and reliably see things as

they are.38 When we justify and reason away our emotions we can lose our intuition. Using emotions as signals for how things are can be indispensable for reality-testing. Emotions can create positive feelings, and positive feelings can lead to positive attitudes and persistence to generate mutual gains. Positive feelings can be created by ensuring there is a sense of fairness to the negotiations by: – treating the other party with politeness, dignity and respect, which in turn gives the person a feeling of positive social status; [page 185] –

– –

ensuring that the other party has the opportunity to say all that they need to say (which sometimes means allowing them to vent), and that you consider the party’s views; creating a ‘level playing field’ and a sense of benevolence; and developing trust (see the discussion on developing trust in Chapter 4).39

Negative emotions can create positive outcomes. The negative emotions that negotiations can produce can have positive value. First, negative emotions can convey danger information and signal that there is something wrong in the negotiation that requires attention. Or they can convey emotional information and signal that there is some seriousness or purpose to the negotiation. In both these ways, negative emotions can inspire the negotiators to work harder towards a wise resolution.40 Emotions can motivate us to greater things. Another upside to negative emotions is that they can motivate people to stand up for themselves or to fight for things for which they care deeply. Research shows that negotiators make larger concessions and lower demands when their counterpart displays anger rather than happiness.41 So if you are on the receiving end of anger, remind yourself to stick to your preparation plan and not change it simply to appease the other negotiator. Awareness of the

potential influence of emotions in negotiations can reduce susceptibility to them.

The reflexive brain 8.15 In this chapter we have explained how the brain is involved in negotiation and decision-making behaviour. For a long time, most scientists thought that brain anatomy was organised in a particular structure, being largely fixed with certain areas of the brain responsible for certain functions. As a result it was largely thought that there was limited scope for adults to change brain-based behaviour. [page 186] In recent years, this theory has been debunked and the brain has been shown to have substantial plasticity. Plasticity means that the brain has the ability to adapt and change itself through thought and activity.42 For negotiators, this revelation brings good and bad tidings. The good news is that constructive negotiation is learnable not only in a scientific way but also in an artful sense. We can practise and develop intuition, reflexivity, creativity and personal negotiating style. At the same time, neuro-plasticity can leave us open to outside influences. The fast pace of the internet, music videos, video games and television in contemporary society has been shown to alter the brain. It contributes to shorter attention spans as we continually re-orient our focus to adjust to rapid and sudden changes and developments in the flow of information. Over time, this can cause general difficulties with our ability to focus in depth on a single topic for a sustained period of time.43 However, the self-changing brain, as Doidge calls it, has its limits. He explains that ‘[p]lasticity allows us to develop a brain so unique — in response to our individual life experiences — that it is often hard to see the world as others do, to want what they want, or to cooperate’.44 This helps to explain why engaging in collaborative negotiation behaviour can sometimes be a real challenge.

Once a particular plastic change takes place in the brain and becomes well established and utilised, it is like a major highway — it is hard to get rid of it. It can inhibit or even prevent further plastic changes occurring.45 Moreover, as we get older, neuro-plasticity declines and we become set in our negotiating ways. It is for this reason that creativity exercises are so useful in keeping our brains flexible and our brain-based behaviour less habitual. Simple creativity exercises involve doing routine things differently, for example, taking a different route to work; taking the bus instead of riding; drinking your tea without milk instead of with milk; sitting in a different seat in class. These small acts of resisting the habitual help our brain to form new connections — this enhances reflexivity, mindfulness and the ability to see things from different perspectives. [page 187]

Summary 8.16 In this chapter, we have looked to both the brain and behavioural sciences to help us better understand negotiating behaviour. We began with a journey into the human brain, and discovered the integral role of emotion in rational thinking, decision-making and memory. We examined the power of storytelling in negotiation and its connection to the emotional centres of the brain. In addition, we examined the usefulness of structuring arguments and thinking in chunks. In relation to the rational brain and short-term memory, creating a calm, relaxed environment with multi-modal communication will increase the amount of information that negotiators are able to absorb. Against this background, the influence of the choice of frame on issues and offers in negotiation was examined and decision-making traps in negotiation were highlighted. Dealing with emotional arousal is a particularly challenging aspect of negotiating. For this reason, we devoted a significant part of the chapter to techniques to manage emotions and use them constructively — yours and the other party’s.

Key negotiating points 8.17

The key negotiating points covered in this chapter are listed below:

All good decision-making involves emotional and rational input from various parts of your brain. Use your whole brain. Explore your intuition when making decisions. Intuition is the emotional brain trying to tell you something. Be curious and explore your intuitive hunches before making final decisions but don’t rely on them mindlessly. Structure rational arguments and data into chunks of information. Create a calm atmosphere with multi-modal communication options for negotiators in order for everyone to maximise their capacity to absorb and recall large chunks of information. How you frame issues, arguments and offers can have a significant influence on the negotiation process and outcome. Think about emotive pulls, statistics and storytelling, the pain of unfairness, the attraction of certainty, people’s attitudes to risk and giving the other negotiator choice. Share a story. Sharing stories in negotiation is a powerful way to build relationships and connect on a personal level. The content of the stories will also be important as people will remember it long after they have forgotten the rational arguments, data and statistics. Beware of emotional hijacking. Learn how to read the warning signs — yours and theirs. Develop a personal repertoire of behavioural techniques to manage and use emotion — yours and theirs.

___________________________ 1.

2.

3.

4.

5. 6.

J Hanson and D Yosifon, ‘The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture’ (2003–2004) 152 University of Pennsylvania Law Review 129; R Korobkin and T Ulen, ‘Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics’ (2000) 88(4) California Law Review 1053–1147. E Ergenzinger Jr, ‘Conversations with Phineas Cage: A Neuroscientific Approach to Negotiation Strategies’, available online at (viewed 18 May 2015). A Damasio, Descartes’ Error: Emotion, Reason, and the Human Brain, Putnam, New York, 1999; G BenZion, ‘Prevailing the Dyslexia Barrier — The Role of Kinesthetic Stimuli in the Teaching of Spelling’ in B Blasing, M Putke and T Schack (eds), Neurocognition of Dance, Psychology Press, London, 2010. Communication interaction also influences the lifecycle of a conflict, adding to the fluid and complex ways we experience the world. See J P Folger, M S Poole and R K Stutman, Working Through Conflict: Strategies for Relationships, Groups, and Organizations, Pearson Education, Boston, 2009. D Goleman, Social Intelligence: The New Science of Social Relationships, Arrow Books, New York, 2007. There are various ways to explain how our brain operates. The popular triune brain theory is utilised here for its clarity and simplicity, even if it lacks certain scientific–technical accuracy. See the classic, Paul D MacLean, The Triune Brain in Evolution: Role in Paleocerebral Functions, Plenum

Press, New York, 1990; see also J Panksepp, Foreword to G Cory and R Gardner, The Evolutionary Neuroethology of Paul MacLean: Convergences and Frontiers, Basic Books, New York, 2002. Other ways to explain how we use our brains include Daniel Kahneman’s System 1 (fast thinking) and System 2 (slow thinking) in Thinking, Fast and Slow, Macmillan, New York, 2011. 7.

8.

The amygdala (in concert with other areas) performs an integral role in regulating the paraventricular hypothalamus (PVHT), which in turn regulates stress hormone responses: see, for example, S J Spencer, J C Fox and T A Day, ‘Thalamic Paraventricular Nucleus Lesions Facilitate Central Amygdala Neuronal Responses to Acute Psychological Stress’ (2004) 997(2) Brain Research 234–7. As this is a negotiation text and not a neuroscientific treatise, and for the sake of brevity, we will use the term amygdala as a shorthand to encompass this highly complex and interactive network. For example, enhancing adrenal output in times of stress.

9.

As with much of our understanding about the brain, there is significant debate on this point. A more detailed analysis indicates that in addition to the amygdala and the paraventricular hypothalamus, PVHT (see above note 7), there appear to be a number of limbic and orbito frontal cortical areas that play a role in regulating psychological stress. 10. On this phenomenon, see Hans Selye’s General Adaptation Syndrome: H Selye, The Stress of Life, McGraw-Hill, New York, 1956. 11. For more information on flight and fight responses, see the information and references available online at (viewed 18 May 2015). 12. N Cowan, ‘The Magical Number 4 in Short Term Memory Capacity: A Reconsideration of Mental Storage Capacity’ (2000) 24 Behavioral and Brain Sciences 87–185. See also D Jones, ‘The 7±2 Urban Legend’ in The Motor Industry Software Reliability Asssociation Conference, Coventry UK, October 2002. 13. Book review, ‘Recent Trends in the Cognitive Neuroscience of Working Memory’ (2009) 45 Cortex 262–8. 14. Goleman, note 5 above, at 29–35. 15. S Hardy, ‘Mediation and Genre’ (2008) 24(3) Negotiation Journal 247 at 263. 16. See H Damasio, T Grabowski, R Frank, A Galaburda and A Damasio, ‘The Return of Phineas Gage: The Skull of a Famous Patient Yields Clues About the Brain’ (1994) 264 Science 1102. 17. PWhalen, S Raunch, N Etcoff et al as cited in A Bateman, J Allen and P Fonagy, Mentalizing in Clinical Practice, American Psychiatric Publishing, Arlington VA, 2008, at 120. 18. These are the hippocampal/amygdala, the BNST (bed nucleus of the stria terminalis) and thalamic areas of the brain. 19. R Fisher and W Ury, Getting to Yes: Negotiating Agreement Without Giving In, Penguin, New York, 1983, at 11. 20. Damasio, note 3 above and Damasio et al, note 16 above, respectively. 21. See M Bazerman, Judgment in Managerial Decision Making, 3rd ed, Wiley and Sons, New York, 1994, at 58–75. 22. On the mere exposure effect, see G Vaughan and M Hogg, An Introduction to Social Psychology, 5th ed, Pearson Education Australia, Melbourne, 2008, at 170. 23. On experiments of this kind, see the television documentary, Geek Logik: Foolproof Decisions for a Perfect Life, BBC, 2008.

24. G Goodpaster, A Guide to Negotiation and Mediation, Transnational Publishers, New York, 1997, at 195. 25. D Ariely, Predictably Irrational: The Hidden Forces that Shape our Decisions, Harper Perennial, New York, 2010. 26. Ariely, note 25 above. 27. F de Waal, Moral Behavior in Animals: (viewed 8 June 2015). 28. See note 27 above. 29. N Wright and K Sadjadpour, ‘The Neuroscience Guide to Negotiations with Iran’ (2014) 14 Jan The Atlantic at 3, available at (viewed 18 May 2015). 30. A Civico, ‘Dealing with Difficult People: Lessons from Iran and Cuba — 3 Lessons we can learn from high-level negotiations’ Psychology Today, 14 April 2015, available at (viewed 18 May 2015). 31. A Ferguson, ‘Iron Wills Mine a Deep Vein of Bitterness’, Sydney Morning Herald, 24 June 2012, available at (viewed 18 May 2015). 32. Bateman, Allen and Fonagy, note 17 above, at 64. 33. J Daly cited in R Adler, B Rosen and E Silverstein, ‘Emotions in Negotiation: How to Manage Fear and Anger’ (1998) Negotiation Journal 161–79 at 169. 34. T Jones and A Bodtker, ‘Mediating with Heart in Mind: Addressing Emotion in Mediation Practice’ (2001) Negotiation Journal 217–44 at 235. 35. The Conflict Resolution Network at (viewed 18 May 2015). 36. T Scheff cited in S Retzinger, ‘Identifying Shame and Anger in Discourse’ (1995) 38(8) The American Behavioral Scientist 1104–13 at 1105. 37. Jones and Bodtker, note 34 above, at 235. 38. Bateman, Allen and Fonagy, note 17 above, at 63. 39. J Howieson, ‘Perceptions of Procedural Justice and Legitimacy in Local Court Mediation’ (2002) 9(2) eLaw Journal: Murdoch University Electronic Journal of Law. 40. R Lewicki, B Barry and D Saunders, Negotiation, 6th ed, McGraw-Hill, New York, 2010, at 168. 41. J Lerner as cited in Program on Negotiation, ‘Will Your Emotions get the Upper Hand?’ (2008) 11(3) Harvard Negotiation Newsletter at 3; G Van Kleef, C De Dreu, D Pietroni and A Manstead, ‘Power and Emotions in Negotiations: Power Moderates the Interpersonal Effects of Anger and Happiness on Concession Making’ (2006) 36 European Journal of Social Psychology 557–81 at 577. 42. See M Doidge, The Brain That Changes Itself, Scribe Publications, Melbourne, 2008. 43. See Doidge, note 42 above, at 310. For a different view, see S Johnson, Everything Bad Is Good for You: How Today’s Popular Culture Is Actually Making Us Smarter, Riverhead, New York, 2005. 44. Doidge, note 42 above, at 120. 45. Doidge, note 42 above, at xvi.

[page 189]

CHAPTER

9

Culture, sex, gender and intersectional fluency — the language of the constructive negotiator Introduction The neuroscience of culture Moving towards cultural fluency Sex, gender and the constructive negotiator Intersectional fluency Summary

Objectives of this chapter Recognise the complexity of negotiator characteristics Understand the impact of culture on negotiator behaviour Appreciate the interplay of sex and gender on negotiation Identify ways to enhance awareness of negotiator differences

Introduction 9.1

Negotiation is a uniquely human phenomenon and humans are

complex. Among the many factors that influence how negotiators think, feel and interact are culture, sex, gender, race, class and other characteristics [page 190] of identity, experience and social location. No single characteristic operates in isolation. Instead, these many characteristics interact with one another, and with innumerable contextual factors, creating complex and emergent relational and power dynamics for negotiators to understand and navigate — what some commentators refer to as ‘intersectionality’.1 Constructive negotiation includes paying attention to this intersectionality and the various factors that give us insight into the context that surrounds negotiations, into our counterparts, and into our own ways of navigating the negotiation process. We focus here on three dimensions of this complex intersection of negotiator characteristics: culture, sex and gender.

On Fish and Culture ‘It is said that a fish cannot know what water is because it is all-pervasive. Water is all the fish knows and the fish cannot distinguish water from the fabric of its existence. So it is with culture. Culture is so deeply ingrained within us by the processes of socialisation that we often do not realise we are affected by it. We simply swim through it like a fish through water. It is how we perceive, and interact with, the world. Of course, we are different from fish. We have the ability to “go meta” and to reflect upon our behaviours, thoughts, beliefs, values and identity.’2

The neuroscience of culture 9.2 Conventional wisdom suggests that the human brain and genetics influence culture and not vice versa.3 However, the insights from neuroplasticity challenge this idea. By definition, culture involves a series of activities, which cultivate and develop the mind. Thus, as our brain produces culture, the same culture helps to reshape our brain. The relationship between the brain and culture is therefore a two-way street.

This means that people of different cultures might not just interpret experiences and events differently due to external cultural frameworks and norms — their brains may actually process the same experiences differently. For example, some research has shown that, generally speaking, [page 191] ‘Easterners perceive holistically, viewing objects as they are related to each other or in a context, whereas Westerners perceive them in isolation’.4 These findings are consistent with cultural theory, which suggests that Easterners are high-context, or have a wide-angle lens, while Westerners are low-context or have a narrow lens with a sharp focus.5 Culture influences learning, perception and communication. With the exception of those brought up multi-culturally (who appear to have a greater ability to alternate between ways of perception and sense-making), cultural adaption can be a challenge — even for a plastic brain. This is because culture permeates so much of how we process and respond to the world that it can be difficult to distinguish cultural from biological behaviour. Neuroscience shows us how complex cultural issues can be. It is important to understand these issues, so that we can use the knowledge of the brain and culture to improve our negotiation performance.

Moving towards cultural fluency 9.3 LeBaron tells us that cultures are fluid and always changing.6 She uses the term cultural fluency to describe the intercultural intelligence of excellent negotiators. Cultural fluency goes beyond national culture. It includes an understanding of the particular individual, situational and institutional cultures that surround a given negotiation. For instance, in organisational settings, many negotiations occur around everyday activities and not necessarily at a formal conference table. Kolb refers to these activities — such as discussing work duties, roles, organisational policies, and arrangements about how things are done, shape and are shaped by, their own cultural context — as a ‘Negotiated Order’.7 Such ‘negotiated orders’ have an impact on the

negotiators’ identity, status, authority and other power relations. These, in turn, influence more conventional negotiation situations. The constructive negotiator develops fluency as to the ways such ‘negotiated orders’ emerge and shape specific negotiation events. [page 192] A number of writers use classification schemas of cultural dimensions to describe and analyse culture.8 Schemas can take a large amount of complex information and then render it understandable and communicable. They assist in developing a map of possibilities for effective negotiation strategies as well as warnings of potential challenges ahead. However, they are not effective predictors of individual behaviours, as they are based on generalisations. In addition, most of the cultural dimensions that have been documented are based on dominant Western views of the world as seen from Western-shaped brains.9 In terms of moving towards cultural fluency, this is a notable limitation. Nevertheless, these schemas offer dimensions of focus for those wanting a starting point for understanding other cultures. Some commonly used cultural starting points are outlined in Table 9.1 and explained in more detail in the paragraphs that follow.10 Table 9.1:

Cross-Cultural Starting Points

Dimension Definition Individualism/Communitarianism Degree to which the decision-making choice centre is the individual or the community/group

Implications Shareholder vs stakeholder value; profitability vs market-share; pioneer spirit vs playing catch-up

Specificity/Diffuseness

Report vs rapport; the bottom line vs goodwill; bricklayers vs stonemasons Parallel processing vs

Sequential time/Synchronous time

Indications Equal sharing vs rewards for initiative; attention to group needs vs emphasis on selfreliance Degree of attention Attention to to specific vs individual diffuse, patterned efficiency and focus performance vs teamwork and social relations Degree to which ‘Time is money’ time is seen as an vs ‘life is a dance’

arrow or a cycle

straight-line production; time is rigid and exact vs

[page 193] Table 9.1: Dimension

Cross-Cultural Starting Points — cont’d Definition

Universalism/Particularism Degree to which focus is on broad, general ideals or specific values

Indications

Innovation and vitality vs systems that work open to all; focus on the exquisite vs welcoming diversity

Implications time is soft and elastic; first-come, first-served vs clustering; focus on causation vs one element in a complex system Emphasis on science vs human relations; mass production vs customisation; formal vs informal systems

It is important to remember that no-one stays in only one place on these continua. We move about depending on context, levels of stress, relations with others and emotionality of issues. Ideally, as negotiators we would be able to function at any point along the continua with awareness of where we and others feel most ‘at home’.

Individualism/communitarianism 9.4 Individualists tend to see themselves as a locus of decision-making, while communitarians tend to refer to a group. The group may be family or clan members or a collective in an organisation or community. When individualists make decisions, their analysis tends to focus on individual values, preferences and desired outcomes. They may talk with or consult others, but they tend to see themselves as the final arbiter of the decision. When communitarians make decisions, their process tends to be more dialogic and

gives weight to tradition, group norms, group image and reputation and other collective factors. As an illustration, the Chinese character for ‘forest’ is composed of two ‘tree’ characters and there is a saying from traditional Chinese culture emphasising the power of collectivism — ‘you won’t get a forest with one single tree’. The appreciation of collective decision-making and contribution is planted firmly in the minds of many Chinese. The implications of this continuum for conflict are myriad. Individualists may expect others to be able to make choices expeditiously and efficiently without a lot of consultation. Without realising that they are imposing their own starting point, individualists may see those who decide more dialogically, deferring to elders and other wise resources, as indecisive and weak. Collectivists may see individualists as selfish and non-collaborative. Sometimes, negative attributions like these escalate disputes. Culturally [page 194] fluent negotiators begin from a place of curiosity about their own and the others’ cultural starting points.

Specificity and diffuseness 9.5 This continuum refers to ways of looking at issues and relationships. Some people prefer a concrete, measurable approach to solving problems. Others gravitate to a more associative, abstract mode. Someone who prefers specificity may have positive associations with words like data, efficiency, report, bottom line and sequential thinking. Those who prefer diffuseness may have positive reactions to words like connections, abstractions, patterns, goodwill and intuition. Culture influences and shapes our habits, skills and ways of constructing ‘strategies of action’.11 The way we are raised as children and the various educational backgrounds to which we are exposed shape our preference of specificity or diffuseness in later life. For example, children who grow up in a family where ‘norms, values, rituals, and family history’ are mentioned frequently are more likely to gradually develop habits of conforming to set

rules and regulations because they are used to the abstract guidance; by comparison, children who regularly are told vivid stories of individuals’ previous generations may be more likely to learn and absorb successful examples and role models in their future study and career. To the person who prefers specificity, the diffuse communicator may seem flaky and changeable. But someone who prefers diffuseness may argue that breaking things down into component parts obstructs a sense of the whole. Specificity and diffuseness are of course appropriate to different degrees in different realms. Specificity is very useful when you are trying to learn how to operate a new piece of equipment. Diffuseness, on the other hand, fits better if you want to communicate feelings to another. Because these starting points are often not conscious, people attribute negative intention and characteristics to those whose preferences differ. On work teams, in communities and in negotiations both international and local, differences on this continuum can regularly escalate conflict. Culturally fluent negotiators recognise these differences when they occur. With this awareness they choose to develop the capacity to stretch themselves by using language from both sides of the continuum in order to demonstrate understanding of others’ cultural starting points as a basis for establishing common ground. [page 195]

Sequential time/synchronous time 9.6 What picture comes into your mind when you think about time: is it a circle, a line, a spiral? Do you care about punctuality, feeling disrespected if someone is late for a meeting? Do you believe it is important to be ‘in the moment’ and that scheduled things are flexible and need to adapt to what is? What is your relationship to time? Do you save it, bank it, pass it, waste it, resent or embrace the change that comes with it? Your answer to many of these questions might simply be ‘it depends’. Our relationships to time depend on context and circumstances. Most

often, time is mixed, in some ways spacious and others confining. And our relationships to time vary as well. Still, we have some cultural-preferred starting points in relation to time. In some cultures, the idea of karma suggests that the circumstances that we find ourselves in relate to past lives, and that actions in our current lives determine our fate in the future. Some indigenous cultures speak of time stretching seven generations forward and back, so decisions made in the present must be considered for their past and future generational implications. For others, time is a straight line that cannot be erased or relived, and each moment follows in linear fashion after each other. At first glance, you may not think that different starting points related to time would have much effect on negotiation. But they might. Imagine two people trying to put together a proposal for a research and development project. One sees the exercise as primarily ‘blue sky dreaming’ and suggests that they take a walk together to ‘see what emerges’. The other is aghast: time is short and it is important to begin work right away on conceptualisations and budgets. You may wonder if these two can successfully negotiate the research project. The answer is yes, they probably can if they become aware of starting points related to time and find ways to bridge their differences. Effective negotiators will take note of different starting points regarding time in their analysis of the negotiation participants and issues. They will ask themselves questions like: ‘How important is punctuality to me and how important does it appear to the others?’ and ‘When we agree on a timeline, how important are specific targets for me? What about the others?’ Of course, these issues may be addressed in the negotiation implicitly through culturally sensitive verbal and non-verbal adjustments and relational positioning.12 Alternatively, negotiators may engage explicitly with time-related issues by openly discussing how they will conduct the negotiation and what their expectations are; in other words, engaging in a negotiation [page 196] about the negotiation — a meta-negotiation. An illustration of different time

orientations is offered in the next section.

Universalism and particularism 9.7 Differences around universalism and particularism are also significant in negotiation. Universalism refers to a preference for general rules and broad ideas. Particularism denotes valuing specific responses to situations as they arise. For someone who prefers a universal starting point, formality may be accentuated because formal processes are easier to replicate. The universalist may tend to emphasise scientific ways of knowing because they transfer across cultures. To the particularist, customisation and human relations may be of more interest. Again, however, cultural differences can create different starting points, and these can affect the course of negotiations. Starting point preferences can produce a maze; they come in many combinations and shift with context. People are not necessarily consistent across contexts; they may tend to be more specific at work and more diffuse at home or vice versa. What is certain is that starting points matter: they inform the way it seems ‘natural’ and ‘effective’ for negotiators to communicate and collaborate. When others come from a different starting point, it takes discipline to query how their starting point is informing their behaviour rather than rushing to judgment. These habits of inquiry and suspension of judgment are important parts of cultural fluency for negotiators. We can say therefore that negotiation is not a culture-free process. All negotiation approaches have built-in cultural assumptions, some of which are reflected in Table 9.1. However, as the following case illustration shows, negotiation assumptions are not universal. As you read the next case illustration, you might note the different cultural starting points. Case Illustration: Scientists and Bureaucrats — Orientation Issues13 Overview This case illustration involves an attempt to set up a bilateral scientific research arrangement involving Chinese scientists and Australian government representatives based in Canberra. Three face-to-face meetings between the Chinese and Australians were held, the first in Canada in 2008, the second in Germany in 2010 and the third

[page 197] in Dubai in 2012. The setting, each time an international scientific conference held every two years, was used by the parties as an opportunity to meet and discuss the bilateral agreement. The Australians attended the conferences for the purpose of work-related self-development and not at the behest of the government. At the same time, they were trying to initiate business between their department (on behalf of the Australian government) and the Chinese government. Background With the initial contact in 2008 involving no more than discussion concerning areas of mutual interest, the Australians felt no need to take into account cross-cultural considerations. They found the Chinese quite similar to them in their approach to the scientific discussions and also to the non-scientific discussions that were mostly focused on Australian tourism and sporting events. The Australians regarded the rapport that developed between the two parties as being between scientific colleagues, rather than government representatives. At the conclusion of the conference, it appeared to the Australians that both parties would investigate the formalising of an agreement on the exchange of scientific information and then share the discoveries of further research. When they met again in 2010, the parties still seemed enthusiastic about cooperating and indicated that they had in-principle support from their superiors. Following that year’s meeting, the Australians wrote several times to the Chinese in a bid to move things forward, but received only formal generalised replies. Unresolved issues Essentially, all logistical and practical issues of the proposed effort remained unresolved at the start of the third meeting. Both sides had exchanged views and agreed, in principle, to cooperate by mutually making resources available in an effort to bring their hopes for joint research to fruition. However, no formal agreement had been reached. Notwithstanding, the Australians remained eager to obtain a formal agreement. The Australian team organised the 2012 meeting. While both parties had signalled their intention to attend the 2012 conference, it was only some six weeks before the event that they agreed to have a formal side meeting during the conference. Jim Bowler, who took the initiative at the third meeting, was not a scientist and so had only limited ability to contribute and was essentially regarded as a support figure. But, with a background in industrial advocacy, he had developed a reputation as a ‘no-nonsense’ person. The more senior negotiator, in terms of relevant qualifications and role within the Australian government, was George Rogers. George was a scientist and the one who had the power to integrate any learning from the conferences into the department’s operational framework. The third meeting The meeting took place over two afternoons. No agenda was prepared nor was an interpreter used, since the Australians believed the Chinese representatives

[page 198] had a sufficient grasp of English. The meeting, which the Australians expected to run for about two hours, was loosely chaired by Jim and conducted as a ‘fireside chat’. Following the exchange of pleasantries and discussion on the progress of the conference, Jim steered the conversation in the direction of research cooperation. The Chinese, who agreed that the suggestions put forward were valuable, made many positive statements of support before digressing to discuss sightseeing. Jim becoming noticeably agitated and increasingly directive in his comments, using the odd profanity to emphasise his point. George noticed that the Chinese were taken back by the crude display, although they made no comment, and the first afternoon eventually ended amicably enough after two-and-a-half hours. The next morning, George apologised to the Chinese for Jim’s outbursts and confirmed that a second afternoon meeting would be held. The Chinese appeared very understanding, but George sensed their enthusiasm had waned significantly. During the second afternoon’s meeting, scheduled to last two hours, discussion of the morning’s conference proceedings was interrupted after 40 minutes by the Chinese, who left for another appointment. Nothing had been agreed to or signed. The Chinese apologised, saying that the dialogue should be resumed as soon as possible. In a seemingly conciliatory manner, Jim agreed and said he would be in contact and get the ball rolling. Reflecting on and interpreting events The Australians, believing that an arrangement with the Chinese would be formalised in 2012, had expected a negotiation during which they would convince the Chinese to commit to joint research. The Australians adopted a laissez-faire approach to the apparently important meetings, on the assumption that, as both parties were attending an international conference, formality could be disregarded for the side meetings. With no formal or informal agenda prepared or discussed, meetings were held in the context of ‘let’s talk when we get the chance’. Jim’s belief that he could steer the meeting toward a positive outcome, using an informal approach and some more aggressive tactics, was not borne out. The apparent avoidance of specifics by the Chinese at each meeting and their failure to reply to follow-up letters indicate that they were no longer interested in cooperating with the Australians. Although discussions had been friendly on the surface, Jim’s displays of temper and tactical maneuvering had been too unfriendly and unprofessional for the Chinese. Subsequent debriefing interviews with the Australians indicated lack of focus on specific issues. There were no statements about the benefits that might accrue to the Chinese. The assumption was that the Chinese were only interested in the quality of scientific information, not its commercial aspects. Failure to include such elements in early discussions perhaps had left the Chinese cold on the idea of combined research. At the end of the day, there was no agreement. There was only recognition that working together would be mutually beneficial. The Australians did not [page 199]

follow up with formal official government channels and therefore were not sure of the extent, if any, of government support for their Chinese colleagues. The Australians’ approach to their discussions with the Chinese was not sensitive to the latter’s views regarding age and social hierarchy. In 2012, Jim was 63 years old and second-incharge of his organisation, while George was 45. The Chinese scientists were in their early forties (but the Australians did not know their ranks). Given the age and senior position of the Australian lead negotiator, the Chinese may well have been concerned that he was not of sufficient status to engage in serious discussions. Commentary Without access to the Chinese version of events, it is difficult to draw definitive conclusions from this case. However, it appears that the Australians were ill prepared to negotiate with their Chinese counterparts. They assumed no research or preparation was needed, simply because meetings took place on neutral territory. Adding to the difficulties was the assumption on the part of Jim that his personal and negotiation styles would overcome all obstacles. Additionally, by failing to demonstrate cultural fluency, the Australians offended the Chinese, who simply walked away from the discussion. Jim’s strategy was unsuitable for forging new relationships and negotiating a venture with the Chinese. George believes that the goodwill built up previously was put in jeopardy and might even have been lost. Jim and George did not work well together as a team. Jim, overconfident about his abilities as a professional negotiator, was not able to accept feedback on his style or undertake a debrief on why things turned out the way they had. George had been in contact by email with one of the Chinese scientists, on a personal level. However, there was no formal correspondence with the Chinese following the meeting in 2012. While the Australians believed themselves to be serious about engaging the Chinese in this venture, with no understanding of how the Chinese were thinking it seems they were unsure about how to proceed. The momentum appeared to have been lost.

9.8 Everyone in a negotiation is likely to come in to the negotiation with different perspectives or from a different starting point. Therefore, negotiators have to prepare for intercultural interactions and develop cultural fluency. Cultural fluency involves the ability to demonstrate a tolerance and respect for difference. Cultural fluency means being curious about difference, being aware of different sets of starting points, and having the skills to recognise differences in world views, and navigate and translate between them. The following guidelines are suggested to assist you in preparing for an intercultural negotiation in a culturally fluent way. Becoming a constructive negotiator includes developing a greater awareness of yourself (being attuned to your own assumptions and mental states) as you develop awareness of others

[page 200] (learning how to learn about your counterparts in advance of a negotiation and from your counterparts at the negotiation table): see 1.14. Awareness of self includes awareness of personal filters, including one’s own ideas about negotiation and negotiating, habits of mind and communication and negotiation patterns. It also includes awareness of a range of communication starting and potential ending points, and agility in bridging them. Be open to diverse ways of making meaning. Be prepared to develop the capacity to work effectively across the substantive, relational and procedural aspects of the negotiation. In particular, consider what could be done to design and adapt negotiation processes that create experiences of inclusion, safety and satisfaction with process and outcome. Learn as much as you can about the person from a range of sources. In preparing for any of the negotiations illustrated in this text, reflect on what, if any, mental pictures you had of the negotiators we described. How did you imagine Martin Cooper (Chapter 2)? What about Sarifina (Chapter 5)? Or the principals in the native title dispute? Did the nature of the dispute cause you to make assumptions about the parties? Did the parties’ names suggest to you anything about their race, gender or sexual identity, national or ethnic background? Learn as much as you can about the culture. Read widely about the cultures with which you will be interacting, using books, journals, magazines and novels. Watch films about that culture, especially documentaries and movies made by its members. Talk to different members of the culture. Talk with members of your own culture who have worked or lived in that culture.14 If you use a classification schema, then treat the dimensions as a framework and fill in the framework with more detailed, thick descriptions of culture. Another dimension of becoming a constructive negotiator is to develop awareness of context. This includes learning not only the practical context of a negotiation, but also the broader ‘negotiated order’ — the power relations, social and cultural environment from which your counterpart comes, and in which the negotiation takes place. Use interpreters with care. Interpreters need to be knowledgeable in the

cultures as well as the language of parties. Often there are multiple cultures within the one language group and an interpreter may not be familiar with them all. [page 201] Use storytelling. Narrative techniques and storytelling that link people to their emotional brains can be helpful in intercultural exchanges.15 The connection between storytelling and the emotional brain is explored in Chapter 8 and it is one way of limbering up your cultural fluency When moments of cultural dissonance and potential misunderstanding arise, culturally fluent responses are needed. Cultural fluency requires the use of all your levels of awareness,16 your multiple intelligences,17 your four listening ears18 and a functioning amygdala.19 The longer parties negotiate with one another, the less likely it is that national culture plays a role in the negotiation. This finding is consistent with LeBaron’s view that culture is always changing. Where national culture becomes less important, other cultural factors, such as those relating to the negotiation subject-matter, or commonalities between the negotiators, may play an increasingly significant role.20 Once cultural context fades, other ‘co-constructed’ negotiation cultures emerge.

Sex, gender and the constructive negotiator 9.9 While there is some agreement between people on culture, no-one can seem to agree on sex and gender, and the negotiation literature is no different in this regard. The more we learn about the complex nature of sex and gender, the less we can generalise about people based on these categorical terms. Moreover, as we better understand the range and continuum of human identity and orientation, the more difficult it is to make specific claims about the connection between who we are and how we behave. You can find support for a range of very different views on the impact of sex (in the biological sense) and gender (in the cultural and social senses)21 on how people negotiate.22 Accordingly, these factors are not always reliable predictors

of negotiation performance. However, negotiation situations do affect people differently and sex and gender research can provide some useful [page 202] insights. This section highlights some of the more interesting findings on sex and gender and how they relate to negotiation, beginning with research on the brain. The terms sex and gender have different technical meanings but they are often used interchangeably. Here, to the extent possible, we honour these distinctions in meaning.

Sex and the brain 9.10 In terms of neuroscience, there is evidence of differences in the structure of male and female brains.23 One difference relates to the size of the area (corpus callosum) and the number of neural connections linking the right and left hemispheres of the rational brain. Female brains have been found to have a larger corpus callosum with many more neural connections in this part than male brains. This conclusion is consistent with the finding that women may have the capacity to be more empathetic than men, especially in relation to non-cooperative (negotiation) partners experiencing painful or difficult circumstances.24 Neurobiological studies also show that male brains may be spontaneously better at systemising and categorising things.25 Simon Baron-Cohen has shown in his work on autism that while females spontaneously empathise to a greater degree than males do, males are driven more to systemise, that is, to analyse the variables in a system, to predict the behaviour of a system, and to control it.26 Baron-Cohen gives the example that across cultures, many studies have shown from the first year of life, boys play more with toys that involve patterns and construction like Lego and toy cars, and girls play more with dolls and spend more time thinking about what the dolls might be thinking and feeling. Again, like all the aspects that we have been discussing, these differences exist between the male and female brain on an axis ranging from ‘empathising’ to ‘systemising’.

[page 203] Translating these findings into the practical world of negotiation brings us back to the preparation and communication skills introduced in Chapters 5 and 6 and the principle that negotiators will be more persuasive if they prepare to communicate in ways that are easy to digest for the brain on the other side of the negotiating table. As indicated earlier, all human brains have male and female brain characteristics. As with cultural difference, we can use our knowledge of brain-based sex difference as a framework to find out more about the other negotiator, and about ourselves. However, we should never generalise based on sex or gender. In the same way as we develop cultural fluency, we need to acquire gender fluency.

How men and women behave in negotiation situations 9.11 Research from the social sciences is mixed about the differences in the negotiation behaviour between men and women. In this section we highlight some interesting findings on the extent to which men and women behave differently in certain types of negotiation situations and invite you to reflect on your own experiences with gender in negotiation contexts. We focus on a negotiation situation that is relevant to all of us — salary negotiations. To start with, some research suggests that many women just don’t like negotiating. Surveys show that 2.5 times more women than men said they feel ‘a great deal of apprehension’ about negotiating.27 Men are said to be two to three times as likely to initiate negotiations as women. In their book Women Don’t Ask, Babcock and Laschever report on findings that 57 per cent of male Carnegie Mellon graduate business students negotiate their starting salaries, whereas only 7 per cent of women do so. As a result, male starting salaries were found to be 7.6 per cent higher than those attained by women.28 Where women do enter into salary negotiations, they often do so with lower expectations, which are then ultimately fulfilled. Women are said to be more pessimistic about how much value is available on the negotiation table and so they tend to ask for less and, not surprisingly, receive less when they do

negotiate. Babcock and Laschever tell us that on average it’s 30 per cent less than men.29 However, if we change the negotiation context, women may perform better. As an illustration, women are said to perform better when negotiating [page 204] a salary raise for one of their subordinates rather than when negotiating a salary raise for themselves.30 Research by Kolb and Putnam supports the findings of Babcock and Laschever that women don’t do as well in negotiations as men. Their work indicates ‘that women don’t ask, often let opportunities for negotiation skip by, typically set low goals, concede easily and let their emotions show among other factors’. In other words, women appear to be more accommodating, more comfortable with the expression of emotions and less assertive than men are in negotiation situations. In highly competitive win/lose situations, men are said to be more likely than women to step up their performance to ‘win’.31 Further, in negotiation situations with high ambiguity, research shows that men outperform women. Conversely, in fairly transparent situations with low ambiguity, some researchers say there is no significant difference between men and women in negotiation performance.32 These findings may suggest that women are less comfortable with uncertainty. However in addition to the above findings, researchers have also found that where men and women are primed for negotiator gender stereotypes, they are more likely to fulfill them.33 So, if sex or gender are made a salient issue prior to the negotiation — for example, in a team meeting — and team members listen to expectations of their gender-specific roles, they may move closer to those stereotypes in the actual negotiation. This is a really interesting finding for negotiators, both male and female. And it gets even more interesting. Kray, Galinsky and Thompson ask what happens if men and women are primed differently. Their research shows that women outperform men in negotiation styles when they are told that feminine traits are linked with success and masculine traits are linked with ineffectiveness.34 So priming seems

to play a significant role in negotiation behaviour. A summary of this study by Kray et al is offered below. [page 205]

Reversing the Gender Gap in Negotiation: Research Summary35 In this study, women and men were placed in mock negotiation situations where one person played the role of seller and the other of buyer. When they were told that qualities more associated with female traits (for example, clear verbalisation of thoughts, good listening ability, and sympathy towards others’ feelings) were traits of a good negotiator, women outperformed men in their negotiating abilities. In groups where these traits were described as highly desirable, women immediately showed more confidence in their actions and set high expectations for the outcomes. By contrast, when they were told these traits were associated with poor negotiation tactics, they were less successful. Traditionally, women have thought of themselves as bad negotiators because they are taught that being aggressive — a trait more associated with masculinity — is better for negotiation. This stereotype causes women to back-pedal on their performance. This study suggests that women’s negotiating style is very effective, as long as they are given information that counters the common stereotype of an aggressive negotiator.

Case Illustration Ellen Pao, interim CEO of Reddit, a technology company in Calfornia, has announced that she wants to eliminate salary negotiations from the company’s hiring process on the basis this would result in more equitable salaries between men and women. Prior to this announcement, in April 2015, Ellen Pao had lost a civil action against venture capital firm Kleiner Perkins Caufield & Byers in which she alleged workplace gender disrimination. The following extract is from CBS San Francisco Local News: Pao told the Wall Street Journal that the plan [to eliminate salary negotiations] would help level the playing field. ‘Men negotiate harder than women do and sometimes women get penalized when they do negotiate’, she said. ‘So as part of our recruiting process we don’t negotiate with candidates. We come up with an offer that we think is fair. If you want more equity, we’ll let you swap a little bit of your cash salary for equity, but we aren’t going to reward people who are better negotiators with more compensation.’ Multiple studies support Pao’s claim that women are less likely than men to successfully negotiate higher salaries and advancement in their careers. ‘The research evidence is overwhelming’, [said] Adam Grant, who has partnered with Facebook COO Sheryl Sandberg on her Lean In campaign … ‘The data are also clear that

when women negotiate assertively, they are often penalized for violating communal gender stereotypes.’ [page 206] A UC Berkeley study also found that the women negotiators are often considered easier to mislead than men. As a result, women are disproportionately deceived, increasing their risk of entering into deals under false pretenses.36

The mixed empirical evidence on sex and gender raises the issue as to whether your sex or gender can really determine how you negotiate. Or are we really talking about a bundle of other attitudinal and behavioural factors such as power, assertiveness, self-confidence and ‘rationality’ that influence negotiation situations? For example, could power be a more accurate indicator of competitiveness than gender? One explanation for the mixed empirical evidence on sex and gender is that much of it is based on binary thinking about ‘men’ and ‘women’. This binary ignores the great variability that exists among people and how they behave. It makes assumptions about what is considered masculine and what is feminine. We are all capable of exhibiting different negotiating behaviours, depending on the circumstances. Therefore, perhaps the better question to think about is when is a male negotiating behaviour appropriate and when is a female?

Intersectional fluency 9.12 Thus far, we have explored just a few of the many characteristics that comprise who we are as negotiators: culture, sex and gender. In addition, there are many more dimensions of identity that influence our social interactions. These include race, class, physical and other abilities, regional and educational background, and religious and philosophical beliefs, among others. Each of these characteristics plays a part in shaping how negotiators perceive, experience, make sense of and react to one another and to negotiation situations. Constructive negotiators work to develop a greater awareness of their own multiple identity characteristics and learn to tune in both to the various characteristics of their counterparts and the larger contextual factors that influence identity dynamics as a negotiation unfolds.

No single identity characteristic operates in isolation. As we mention at the beginning of this chapter, these many characteristics interact with one another, and with innumerable contextual factors, creating complex and emergent relational and power dynamics for negotiators to understand and navigate — what some commentators refer to as ‘intersectionality’. As Wijeyesinghe and Jones write, where social identity focuses on the [page 207] various ‘parts’ of a person, intersectionality attends to the ‘whole’ person — it ‘acknowledges an individual’s multiple social identities, thus creating a more complete portrayal of the whole person’.37 Goodman adds that intersectionality looks beyond the ‘additive’ nature of multiple identity characteristics and instead focuses on the ways that different social categories simultaneously interact. Using the metaphor of a woven tapestry, Goodman suggests that our identities are like the intersecting threads of a fabric and each point of intersection helps us to better understand how people experience social identities within larger social systems.38 While our various identity characteristics help us to know who we are, those same characteristics also ‘locate’ us within larger social power structures, influencing how others view and behave toward us. As Tushman and Romanelli describe it, social location is ‘an individual’s position in an informal social network, relative to the positions of others’.39 We are continually noticing and adapting our behaviour in relation to those around us, including our relative social power positions. For example, in some societies, the relative age of two people in conversation will dictate who uses formal and who uses informal references to the other, conferring relative power to the elder person in the interaction. Similarly, in some societies, Caucasian males are ‘located’ at relatively higher social power status positions than are non-Caucasion males or than Caucasian females. These power differentials are not based on individual merit or personal qualities. Instead, they are based on different intersecting identities in relation to a larger social context and the relative privilege a society attaches to those identities. Thus, in addition to understanding our multiple identity characteristics, the

concept of intersectionality also takes into account the ways in which identity groups are located within social hierarchies. It is a tool to highlight ‘how people — as members of multiple groups of individuals — experience marginalization and inequality’.40 It is a way to better understand complex interpersonal power relations within and across social boundaries. By focusing on the intersections of various identity characteristics, we can better understand how, for example, a Caucasian woman may be marginalised [page 208] in relation to the Caucasian man referenced above, and yet may hold certain relative structural privilege in relation to a man of colour. Recall Sarafina, the lawyer from Chapter 5 who was considering changing law firms. Assume she identifies as a wealthy female Zimbabwean Christian attorney. Depending on who is her negotiation counterpart at her new firm, one or more of her intersecting identity characteristics may be more salient than others. The characteristics that are salient in a given social situation may place her in a more privileged, or more marginalised, social position than a social situation with a differently identified counterpart. Assume, for example, she will be negotiating with Ian, a white, male, gay, agnostic Australian counterpart at the new firm. Her social location as a member of a wealthy economic class may not be salient in this situation. Ian may similarly come from a wealthy class. However, her race and sex, as ‘central’ identity characteristics that transcend particular situations,41 may well impact her interactions with Ian. Ian may possess certain social privilege as a result of his sex, race and possibly national identity that Sarafina does not enjoy. At the same time, part of Ian’s identity is his sexual orientation. Whether and how he makes this dimension of his identity visible can have an impact on the power dynamics between them, particularly if Sarafina’s religious beliefs shape her attitudes toward people based on their sexual orientation. And even if Ian does not disclose his sexual orientation, larger social forces may still have an impact on how Ian perceives — and enacts — his social power and privilege.

Now let’s change the example and assume, instead of negotiating with Ian, Sarafina meets with another partner at the firm, Alleena. Alleena identifies as an Aboriginal female from outside Melbourne. She uses a power wheel chair. In this case, the two negotiators share the same sex and, let’s say, straight sexual orientation. They may also both identify as members of marginalised racial or ethnic groups. But Alleena does not share the same level of physical mobility as Sarafina. Physical ability is also a characteristic of identity on which societies confer privilege. At some level Alleena’s and Sarafina’s identities relative to physical ability may shade their perceptions of one another and influence their interactions. Power relations need not only derive from social identity characteristics with which we are born. In the 1998 American film A Civil Action, John Travolta plays a Columbia Law School graduate who goes to the Harvard Club in New York City to negotiate a settlement with his attorney counterpart, played by Sydney Pollack. As the scene unfolds, it becomes increasingly clear that Pollack not only sees himself as superior because of his Harvard Law School pedigree, but he subtly (and not so subtly) undermines Travolta’s [page 209] confidence and relational power at every turn by displaying surprise that Travolta does not know the social rules that are so obvious to a ‘Harvard man’. In this case, the salient social identity and consequential locational power is not the lawyers’ sex, race, culture or any of the other characteristics we have discussed in this chapter. Instead, it is the school name that happens to be embossed on their respective law school diplomas. As constructive negotiators, we want to develop greater fluency with the power dynamics of intersecting identities. We need to understand how differences in culture, sex and gender, among others, can inform the ways negotiators think, feel, make sense of and interact in various negotiation situations. We also need to appreciate the complex relational and power dynamics that play out at the negotiation table, influenced not only by the identity characteristics of our counterparts, but also by our multi-faceted

selves. In addition to learning more about ‘them’, we also want to know more about ‘us’. Specifically, we suggest the following: Know your own multiple identity characteristics and the ways they matter to you. Which of them confer the power of privilege? Which of them create marginalisation? This is another dimension of awareness of self. Learn about your counterpart and how their identity characteristics intersect with yours. This is another dimension of awareness of other. Learn about the situation surrounding the negotiation and which characteristics are most salient. This is another dimension of awareness of context. Particularly when pursuing a collaborative or integrative outcome, consider how to work alongside your counterpart so as to minimise the power differential between you.

Summary 9.13 In this chapter we have discussed culture, sex and gender separately. However our lived experience is not so neatly divided. Our identities and performance as people and negotiators are highly complex and fluid. The characteristics that make us who we are — including sex, gender, culture and ethnicity, race and class, among others — intersect one with another, ebbing and flowing in salience depending on context and power dynamics.42 While attending to these dynamics may seem daunting, [page 210] constructive negotiators cultivate practices that strengthen their awareness of themselves, their counterpart and the negotiation context, developing fluency and the ability to adapt to a broad range of negotiation situations. We explored differences based on culture, sex and gender in negotiation. While we recommend the use of classification schemas as a starting point to

understand difference, we caution against stereotyping. Finally, we offered guidelines for developing greater fluency among these intersecting factors.

Key negotiating points 9.14

The key negotiating points covered in this chapter are listed below:

Develop cultural fluency and use elicitive skills to find out more about the other negotiator. Cultural generalisations may be useful but they are not sufficient and can cause mistakes in negotiation. Sex and gender can make a difference in negotiation contexts. At the same time, we are all capable of exhibiting different negotiating behaviours, depending on the circumstances. Other factors such as individual cultural and communication differences, power dynamics and context may also be relevant predictors. Use communication and interpersonal skills to identify actual differences on an individual basis. Develop intersectional fluency. Learn to identify the other negotiator’s multiple social identities, acknowledge how their identity characteristics intersect with yours and recognise the most salient characteristics relevant to the negotiation at hand.

___________________________ 1.

C Mitchell, Disrupting Gender Performativity in Negotiation Theory and Practice, Bepress Selected Works 2009, at (viewed 5 June 2015).

2.

J Lee, ‘Culture and its Importance in Mediation’ in D McFadden and G Lim, Mediation in Singapore: A Practical Guide, Sweet & Maxwell, Singapore, 2015. The discussion on culture and the brain is drawn from N Doidge, The Brain That Changes Itself, Penguin Books, New York, 2007, Appendix 1, ‘The Culturally Modified Brain’, at 287ff.

3. 4.

5.

6. 7. 8.

9.

See note 3 above, at 302, referring to research by Nisbett and Masuda; see also R Nisbett, K Peng, I Choi and A Norenzayan, ‘Culture and Systems of Thought: Holistic Versus Analytic Cognition’ (2001) 108(2) Psychological Review 291–310. On negotiations between Eastern and Western cultures, see B Goh, ‘Typical Errors of Westerners’ in A Kupfer Schneider and C Honeyman (eds), The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator, ABA Section of Dispute Resolution, Washington DC, 2006, at 293ff. M LeBaron, Bridging Cultural Conflicts: A New Approach for a Changing World, Jossey-Bass, San Francisco, 2003. D Kolb, ‘Negotiating in the Shadows of Organizations: Gender, Negotiation and Change’ (2013) 28(2) Ohio State Journal on Dispute Resolution 241. These writers include C Hampden-Turner and F Trompenaars, Riding the Waves of Culture: Understanding Cultural Diversity in Business, 2nd ed, McGraw-Hill, New York, 1998; and G Hofstede, at (viewed 2 June 2015). E Weldon and K Jehn, ‘Examining Cross-cultural Differences in Conflict Management Behavior: A Strategy for Future Research’ (1995) 6(4) The International Journal of Conflict Management 387. For a cultural dimension developed by Chinese scholars, see the long-term/short-term orientation in

Hofstede’s Schema, available on (viewed 2 June 2015). 10. Table 9.1 and related discussion are adapted from LeBaron and Liao in N Alexander, The Hong Kong Mediation Manual, LexisNexis, Hong Kong, 2014, at 136ff. 11. A Swidler, ‘Culture in Action: Symbols and Strategies’ (1986) 51(2) American Sociological Review 273–86. 12. On relational positioning, see Chapter 4 at 4.4. 13. This negotiation case is adapted from B March and S Wu, The Chinese Negotiator: How to Succeed in the World’s Largest Market, Kodansha International, Tokyo, 2007 as reproduced by the Negotiation Experts with minimal non-substantive changes: see (viewed 2 June 2015). Names and dates have been changed in addition to some minor facts from the originally published case. 14. C Moore and P Woodrow, ‘What Do I Need to Know about Culture: Practitioners Suggest …’ in J Lederer and J Moomaw Jenner (eds), A Handbook for International Peacebuilding: Into the Eye of the Storm, Jossey-Bass, San Francisco, 2002, at 6. 15. The connection between storytelling and the emotional brain is explored earlier in this chapter. 16. On levels of awareness, see Chapter 1 at 1.14. 17. On multiple intelligences, see this chapter and Chapter 7 on emotional intelligence. 18. On the four listening ears, see Chapter 6 at 6.5. 19. See the discussion on neuroscience and the brain earlier in this chapter at 8.2 and 8.7. 20. See O Elgstrom, ‘Norms, Culture and Cognition Patterns in Foreign Aid Negotiation’ (1990) 6(2) Negotiation Journal 147–59. 21. Even this distinction is the subject of animated debate. See G Warnke, After Identity: Rethinking Race, Sex, and Gender, Cambridge University Press, Cambridge, 2007. 22. A Walters, A Stuhlmacher and L Meyer, ‘Gender and Negotiation Competitiveness: A Metaanalysis’ (1998) 76(1) Organizational Behavior and Human Decision Processes 1–29. 23. Most people have a dominant female or male brain; however, we all — men and women — carry male and female brain characteristics to varying degrees: R Winston, The Human Mind, Bantam Books, Sydney, 2003, at 251. Moreover, there is growing evidence that the very male/female binary does not reflect the population as a whole and does not fully reveal the complexity and richness of sex and gender. See S Preves, Intersex and Identity: The Contested Self, Rutgers University Press, Brunswick NJ, 2003. 24. T Singer, B Seymour, J O’Doherty et al, cited in J Allen, P Fonagy and A Bateman, Mentalizing in Clinical Practice, American Psychiatric Publishing, Arlington VA, 2008, at 123–4. 25. Winston, note 23 above, at 254. 26. S Baron-Cohen, ‘The Extreme Male Brain Theory of Autism’ (2002) 6(6) Trends in Cognitive Sciences 248–54 citing S Baron-Cohen et al, ‘The Exact Mind: Empathizing and Systemizing in Autism Spectrum Conditions’ in U Goswami (ed), Blackwell Handbook of Childhood Cognitive Development, Blackwell, Melbourne, 2004. 27. L Babcock and S Laschever, Women Don’t Ask: The High Cost of Avoiding Negotiation — and Positive Strategies for Change, Bantam Books, New York, 2007. 28. Babcock and Laschever, note 27 above. 29. Babcock and Laschever, note 27 above.

H Bowles, L Babcock and K McGinn, Constraints and Triggers: Situational Mechanics of Gender in 30. Negotiation, Working Paper No RWP05-051, John F Kennedy School of Government, Harvard University, Cambridge MA, 2005. 31. D Kolb and L Putnam, ‘Gender is More Than Who We Are’ in A Kupfer Schneider and C Honeyman (eds), The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator, ABA Section of Dispute Resolution, Washington DC, 2006. 32. See L Kray and L Thompson, ‘Gender Stereotypes and Negotiation Performance: An Examination of Theory and Research’ in B Staw and R Kramer (eds), Research in Organizational Behavior Series, vol 26, JAI Press, Greenwich CT, 2005, at 103–82. 33. Kolb and Putnam, note 31 above, at 315, referring to the research by L Babcock and S Laschever, Women Don’t Ask: Negotiation and the Gender Divide, Princeton University Press, New Jersey, 2003. 34. Laura J Kray, Adam D Galinsky and Leigh Thompson, ‘Reversing the Gender Gap in Negotiations: An Exploration of Stereotype Regeneration’ (2002) 87(2) Organizational Behavior and Human Decision Processes 386–410. 35. This summary of the research of Kray, Galinsky and Thompson, note 34 above, is from A Sweazy, ‘Research Summary: Gender Based Negotiation Styles’, Inpower Women Blog, 21 April 2014, available at (viewed 2 June 2015). 36. CBS San Francisco Local News, ‘Reddit CEO Ellen Pao Bans Salary Negotiations To Equalize Pay For Men, Women’, 8 April 2015, available at (viewed 2 June 2015). 37. C Wijeyesinghe and S Jones, ‘Intersectionality, Identity, and Systems of Power and Inequality’ in D Mitchell, C Y Simmons and L A Greyerbiehl (eds), Intersectionality & Higher Education: Theory, Research and Praxis, Peter Lang Publishing, New York, 2014, at 9–19. 38. D Goodman, ‘The Tapestry Model: Exploring Social Identities, Privilege and Oppression from an Intersectional Perspective’ in Mitchell, Simmons and Greyerbiehl, note 37 above, at 99–108. 39. M Tushman and E Romanelli, ‘Uncertainty, Social Location and Influence in Decision Making: A Sociometric Analysis’ (1983) 29(1) Management Science 12–23. 40. Wijeyesinghe and Jones, note 37 above, at 10. 41. Goodman, note 38 above, at 106. 42. E Holvino, ‘Intersections: The Simultaneity of Race, Gender and Class in Organization Studies’ (2010) 17(3) Gender, Work and Organization 248–77.

[page 211]

CHAPTER

10

Tough skills for tough negotiations Introduction How to handle hardball negotiation tactics Overcoming impasses: so close yet so far away Wicked problems Summary

Objectives of this chapter Identify hardball tactics Consider the ethics and legality of certain hardball tactics Develop effective responses to hardball tactics Explore reasons why impasses occur Consider ways to prevent impasses Identify ways to overcome an impasse once it has occurred Understand the nature of ‘wicked’ negotiation problems

Introduction 10.1 Tough negotiations conjure up images of potentially aggressive negotiators out for whatever they can get, who are prepared to use threats, lies

and bluffs in negotiation sessions that may involve long hours and late nights. Such behaviour can and does occur in negotiation, so it is good to [page 212] be prepared for it. In this chapter, we offer you advice on how to respond to hardball tactics and how to manage their use constructively in negotiation. In addition, we examine impasse situations in negotiation and techniques to both prevent and overcome them. Finally, we examine an emerging area of study in negotiation: ‘wicked problems’ — those complex negotiation problems that are ill-defined and that resist clear definition because they are so entangled with larger and contested social, political and moral dimensions.

How to handle hardball negotiation tactics 10.2 Imagine that you are looking to buy a house but everything you like seems way above your price range, until you come across a lovely small cottage for sale. Everything about it seems to be right for you: location, condition, size and price. You can’t understand why it hasn’t been snapped up already. The vendors say they are in a hurry to sell, so it is cash terms and an unconditional contract. Normally you would organise a building inspection, talk to the neighbours, look further around the area, and do some council searches. But the place looks sturdy and the neighbourhood seems lovely … In these situations, the offer of sale as it is packaged may be, in fact, too good to be true. For instance, there may be a problem with the house that has deliberately not been disclosed. A major dilemma for many negotiators is how to deal with hardball tactics such as this. The term ‘hardball tactics’ connotes tough, competitive, hard and no-mercy negotiation tactics. In this section, we will explain some of the most common hardball tactics and give you advice on how to respond effectively to them. Our aim in explaining the types of tactics, especially those which are of questionable integrity, is not to recommend them; rather, it is to assist you in recognising and responding to such tactics. We also examine the legal and ethical implications of certain hardball tactics.

People use these types of tactics for different reasons. They may be used to confirm a person’s reputation as a tough negotiator; or to gain an advantage in negotiation or to respond to a perceived unfair advantage on the other side. In addition, often people use hardball tactics because they don’t know any other way to negotiate.

Examples of hardball tactics 10.3 In 2012 and 2013 the US retail bookstore chain Barnes & Noble and publishers Simon & Schuster were engaged in fairly tough negotiations involving hardball tactics. Keith Lutz sets the scene: As the last major retail bookstore chain in the United States, Barnes & Noble had been pressing publishers to make steep concessions to enable its

[page 213] survival against Amazon.com and other online retailers. The bookstore chain reportedly negotiated for significantly reduced wholesale prices for [books from the publishing house] Simon & Schuster and also tried to charge the publisher more to display its titles in its stores. Simon & Schuster resisted.1

Lutz continues: When months of negotiations […] reached a standoff in January 2013, Barnes & Noble attempted to gain leverage by significantly reducing its orders of Simon & Schuster titles and engaging in other hardball negotiation tactics, such as refusing to book the publisher’s authors for in-store readings. Given that Barnes & Noble sells about 20 per cent of consumer books in the United States, Simon & Schuster editors and their associated agents and writers were ‘apoplectic’ about the bookseller’s decision to use them as a bargaining chip, the New York Times reported in March 2013.2

Here, hardball tactics led to months of impasse, bad press and presumably a significant drop in profits for each side. Table 10.1 below lists some examples of hardball negotiation tactics.3 Some are aimed to deceive or mislead. Others are designed to make you so uncomfortable that you would rather settle than stay in the negotiations. Yet other tactics aim to put intense pressure on you so that you will capitulate. The following list is not meant to be exhaustive as there are countless variations of hardball tactics. Rather, it will give you a sense of hardball tactics

generally, and provide you with some concrete examples that you may encounter in practice. Table 10.1: No 1

Hardball Negotiation Tactics

Negotiation tactic Bluffing generally refers to a false display of confidence or aggression to deceive or intimidate someone. This form of pretence can be used to mask weakness with signs of strength. It can also be used to give the impression of ignorance or incompetence in order to avoid disclosing information, or used with the aim of encouraging the other negotiator to let down their guard and divulge information.

[page 214] Table 10.1: Hardball Negotiation Tactics — cont’d No 2

3

4

5

Negotiation tactic Predictions disguised as factual assertions. The predictions generally relate to what one negotiator says will happen if the other negotiator does or does not do something. For example, one negotiator says to the other: ‘Once we terminate the joint venture project, the IP will be worth nothing to your company. Your best bet is to offload it now while you can.’ Repeated claims or assertions of ‘fact’ without substantiation. Making unsubstantiated factual assertions is a popular ploy for unprepared negotiators. It may have the desired effect where the other negotiator fails to check the accuracy of the statements — not an uncommon response by inexperienced negotiators facing imminent deadlines. Opinions of value or worth presented as fact or as objective, expert valuations. Opinions presented as expert assessments may occur, for example, where a real estate agent incorrectly claims that the apartment they are selling is the biggest in the complex or the best value in its price range in the area. Here, prospective purchasers expecting the agent to have expertise in these matters may be encouraged to rely on the agent’s assertions. Misinformation includes statements that are untrue or only partially true, and statements that, while technically correct, give rise to a false assumption. Subtle or ambiguous qualifying in a manner that is not clear to the other negotiator can be an effective way to send misinformation. For example, a negotiator may say: ‘It has always been my practice to leave the negotiations and not return where my final offer has been refused. So think carefully before you respond …’ Here, the implication is that the negotiator will act in the same way in this negotiation, although this has not been expressly said — rather, the negotiator has referred only to their actions in the past. Moreover, watch out for phrases such as ‘at this time’, ‘it is my intention’ and ‘that has always been the case’.

Answering questions with another question is another way to promote misinformation. 6

Withholding information. General failure to disclose can also mislead and lead to false assumptions. For example, Max tells a potential corporate client that he can comply with the request for staff training to commence in 10 days, but does not reveal that he currently has no training staff to conduct the sessions and will need to recruit suitable trainers on a contract basis to fulfill the contract.

7

Failure to disclose specific requested information by: shifting or diverting attention; answering unresponsively; saying that you will respond in due course and not following up; or

8

9

only giving partial answers. Outright, deliberate lying. For example, if Max tells his potential corporate client that he has five staff members who are qualified corporate trainers available to conduct the required training in 10 days time, this would amount to deceit. ‘Oh, and there is just one more thing …’ This tactic is also referred to as the late hit because the request comes very late in the negotiations, usually as

[page 215] Table 10.1: Hardball Negotiation Tactics — cont’d No

10

11

12

13

Negotiation tactic negotiators are well into the bargaining phase and appear to be close to reaching an outcome. Therefore, by the time the late hit comes, the other negotiator has invested considerable time, effort and resources into the negotiation and may be reluctant to walk away. It is for this reason that late hits often work. Uncomfortable physical environment. Some negotiators try to make you so physically uncomfortable that you hurry to reach an agreement and then leave. Examples of this include insisting on negotiating well into the night without breaks or meals, not using air-conditioning in summer so that negotiation takes place in extreme temperatures, and providing uncomfortable furniture or seating arrangements. Personal attacks targeting race, religion, gender, physical appearance, intelligence and other personal attributes are aimed to unsettle you so that you feel uncomfortable in the negotiations. Personal attacks can be overt or subtle. They can be communicated verbally, vocally and/or visually. ‘Good guy/bad guy’ is a technique used in negotiation teams of at least two members. One person plays the ‘good guy’ who tries to make concessions and wants to be your friend. The other member of the same team is hard-nosed, difficult and won’t give anything away. The idea is that you will warm towards the ‘good guy’, develop trust and a rapport with them and be more willing to make concessions to them. Threats can operate as hardball tactics in two ways. The first way involves directing a

14

15

threat at the other negotiator, for example, to report them to the authorities, to cause financial harm, breach a contract, defame or otherwise cause damage to them. The second way involves accusing the other negotiator of making threats; this operates as a hardball tactic to get the other side to back down and move from the topic at hand — at least temporarily: ‘Are you threatening me?’ Refusal to negotiate. For example: ‘This is my final offer and I am not moving from it.’ This tactic works well in the context of leveraging loss aversion.4 Most people reach a point in negotiations where they feel they have invested so much time, energy and resources into the process that they cannot walk away without a deal. In other words, they are highly motivated to avert a loss of everything they have invested so far in the negotiation. Negotiators can take advantage of this psychological phenomenon by digging in their heels, delaying and refusing to make further concessions. Extreme opening demands. These set an anchor for the negotiations that are favourable to the person making the demand. When an extreme opening demand is made, it is easy for unprepared negotiators on the other side to fall into the trap of adjusting their opening counter-offers accordingly. This will generally be to their detriment (see the discussion on the anchoring trap later in this chapter at Table 10.3).

[page 216] Table 10.1: Hardball Negotiation Tactics — cont’d No 16

Negotiation tactic Calculated delays and silence. This tactic can be used in combination with the previous two tactics. Calculated delays can send signals, which encourage concessions from the other side. These signals may include: ‘I am close to my bottom line.’ ‘There is an alternative that I am pursuing.’ (eg, another supplier or job offer) ‘I am not that interested.’ Moreover, many people tend to feel uncomfortable with silence and so are likely to fill the gap — possibly with another concession, or at least with more information that may be helpful to you.

17

18

Imposing unreasonable or sudden deadlines. As indicated in Chapter 2, deadlines induce agreements and most concession-making occurs in the time period immediately preceding a deadline. Some negotiators communicate false deadlines in order to induce a sense of urgency into the negotiations and encourage rapid concession-making. Alternatively, they may introduce deadlines during the negotiations, along the lines of: ‘I’ve just had a call and there are some issues back at head office that require my attention. I won’t be staying for the function this evening and will need to take the 3 pm flight out.’ Non-compliance with agreed process rules. Where the parties have agreed on process rules for the conduct of the negotiation, some negotiators will try to frustrate

19

the process and the other negotiator by not complying with them. For example, they may send a negotiator with limited authority to settle in defiance of an express agreement to send senior negotiators with full authority. Alternatively, they might take unilateral action during the course of negotiations — such as issuing a press release — without consulting the other negotiator as per their arrangement. Walk-outs and tantrums. These are high-risk hardball tactics aimed to induce capitulation by the other side — but note, these sometimes do backfire. The other side might just let you walk out and effectively end the negotiations.

Alternatives to using hardball tactics 10.4 We indicated earlier that some people use hardball tactics because they don’t know how to do anything else. It is a type of default mechanism. Recognising this phenomenon, Shell puts forward a number of very useful alternatives to deceptive competitive tactics in negotiation. These are reproduced in Table 10.2.5 You will notice that some of these tactics take you away from classic positional negotiation patterns. For example, a commitment to address the other party’s interests is a tactic straight from interest-based negotiation. Using a third party takes you away from a pure negotiation model and into alternative dispute resolution processes, such as mediation or neutral [page 217] evaluation. These alternative tactics reflect the reality of negotiation as a complex interpersonal dynamic that can accommodate different strategies. Table 10.2: Shell’s Alternatives to Lying Instead of misleading with or lying about: Your bottom line

Try this:

Use blocking manoeuvres such as: Ask about their bottom line Say, ‘It’s not your business’ Say, ‘I’m not free to disclose that’ Tell the truth about your goal Focus on your concerns/needs

Lack of authority

Contain only limited authority in the first place Require ratification by your group

Availability of alternatives

Initiate efforts to improve alternatives Stress opportunities and risks Be satisfied with the status quo

Commitment to position

Commit to general goals Commit to standards Commit to addressing the other side’s interests

Phoney issues Threats

Commit to doing better than your BATNA Inject new issues with real value or make a true wish list Use cooling-off periods Suggest third party help

Intentions Facts

Discuss use of a formula Make only promises that you can and will keep Focus on uncertainty regarding the facts Use language carefully Express your opinion

Responding to hardball tactics 10.5 So far in this chapter we have identified hardball tactics and explored some alternatives to using them. But what happens when others use them on you? How do you respond? People respond to hardball tactics in different ways.6 Generally, they either: accept it, also known as the ‘grin and bear it’ response; respond in kind, also known as the ‘caveman’ response; ignore it and change the topic; or name it and disarm it. The ‘grin and bear it’ response is rarely useful as it encourages the behaviour to continue, while you continue to feel uncomfortable — yet is [page 218]

common among conflict avoiders, accommodators and those who are less than confident in the negotiation. The ‘caveman’ response is the default reaction of many negotiators faced with hardball competitive tactics. The risks with this response include escalating the conflict, losing track of what is important to you in the negotiation and focusing on the battle instead, and damaging the negotiating relationship. In other words, it can be destructive as well as distracting. The ‘ignore it and change the topic’ response can be effective if the hardball negotiator does not persist. Sometimes hardball tactics are no more than a ‘try on’ and if you don’t react to them but rather confidently move on in a constructive manner, your negotiation counterpart may just follow your lead. The ‘name it and disarm it’ response is generally the most effective way to deal with hardball competitive tactics. Try this four-step approach:7 1.

2.

3.

Recognise the tactic. Ury explains that the ability to recognise hardball tactics means that you are much less likely to fall for them. If you feel uncomfortable, then ask yourself why. It might be that you are hungry, have a headache, cannot concentrate properly, feel ill-prepared or overwhelmed. Recognise that it might be a tactic. Look for other indicators of hardball tactics to confirm your view. Has the other negotiator dismissed your suggestions for a break? Have they, for example, insisted on getting the deal done tonight, so that you don’t need to spend tomorrow in negotiations again? Does the fact that you are now negotiating after hours mean that you cannot access certain resources such as professional advisers? Know your triggers and stop in time. Be mindful of how you are feeling in the negotiation. Know your triggers or ‘hot buttons’ and resist the temptation to get angry and defensive. In Chapter 8 we explored how anger, frustration and similar emotions challenge our ability to think rationally and make smart decisions. We also discussed how you can temporarily stop the negotiation process as soon as you get the physical warning signs that you are about to be ‘triggered’. Ury’s advice is to ‘put on your radar, not your armo[u]r’.8 Name the issue. Naming a tactic and speaking about it as well as the issues that it raises for you, may be all that is required to make the tactic

stop. How do you do this? Be as specific as you can be and focus on the problem rather than the person who is using the tactic, for example: ‘I don’t know about you but I am getting weary, not to mention hungry.’ If you can, frame the issue in a positive action-oriented way, for example: [page 219]

4.

‘I really need a break and something to eat.’ If you are being bombarded with information, do not be afraid to ask the person bombarding you to slow down. For example: ‘Can we just backtrack a little here, I don’t think I have followed all the links in that proposal.’ Alternatively, if you are taking notes in the negotiation, this is a good time to ask the other side to repeat what they have said, or to summarise what they have said from your notes. Do not be afraid to ask questions. Chapter 6 has shown how important this skill is in negotiation. Get agreement on how to move forward. Negotiate a process option that will work for you. Try to raise some options for how things could be done differently. For example: ‘Let’s take a break and get some food and fresh air. I suggest we talk about anything except the negotiations until we reconvene in an hour.’ Alternatively, you might move to a different issue and lead the discussion yourself in a constructive manner, or you might suggest bringing in a mediator to manage the process. This fourth step involves talking about the rules of the negotiation game and getting agreement on how to proceed with the process.

Hardball tactics and ethics 10.6 Hardball tactics are not necessarily unethical — it depends on how they are applied in practice. The extent to which you use these tactics yourself will depend on how you apply them and your view of ethics. Shell explains that effective negotiators are reliable and have what he calls ‘personal integrity’; that is, they ‘can be counted on to negotiate consistently, using a

thoughtful set of personal values that they could, if necessary, explain and defend to others’.9 In other words, people will have different views about what is ethical or not and what is appropriate or not in a negotiation context. Professional negotiators such as lawyers will be subject to ethical codes of conduct, which will limit their ability to engage in some of the tactics outlined in this section.

Hardball tactics and the law 10.7 The law is increasingly regulating negotiation practice, and not just for lawyers. For example, an obligation requiring parties to negotiate in good faith may arise contractually or under statute. Contractual obligations to negotiate in good faith have been held to be enforceable where the obligation forms part of a dispute resolution framework such as in the case of United Group Rail Services Ltd v Rail [page 220] Corporation New South Wales.10 According to Bannon et al, the requirement of good faith is not: … vague, illusory or uncertain, because:

while subjective, it [is] not impossible to assess; and the yardstick for measuring good faith is honest and genuine negotiation within a framework of fidelity to the contract and the dispute.11 The authors suggest that the following examples of negotiating conduct would fall below the good faith standard: threatening a future breach of contract in order to bargain for a lower settlement sum than you believe is due or would be appropriate (see hardball tactic 13 in Table 10.1); and having no intention of negotiating a settement but pretending to negotiate in order to force the other party into arbitration or litigation that you believe they cannot afford (see hardball tactics 5 and 6 in Table 10.1).12

They powerfully conclude: A contractual obligation to act in ‘good faith’ is not just a feel-good phrase — commercial parties need to be aware of the very real (and enforceable) obligations that an agreement to negotiate in good faith imposes upon them.13

In relation to a statutory obligation to negotiate in good faith under the Native Title Act 1993 (Cth), the case of Western Australia v Njamal People identified the following behaviours as potentially falling foul of the standard of good faith:14 unreasonable delay in initiating communications in the first instance; failure to make proposals in the first place; unexplained failure to communicate with other parties within a reasonable time; failure to contact one or more of the other parties; [page 221] failure to follow up a lack of response from the other parties; failure to attempt to organise a meeting between the native title and grantee parties; failure to take reasonable steps to facilitate and engage in discussions between the parties; failure to respond to reasonable requests for relevant information within a reasonable time; stalling negotiations by unexplained delays in responding to correspondence or telephone calls; unnecessary postponement of meetings; sending negotiators without authority to do more than argue or listen; refusing to agree on trivial matters, for example, a refusal to incorporate statutory provisions into an agreement; shifting position, just as agreement seems in sight;

adopting a rigid non-negotiable position; failure to make counter-proposals; unilateral conduct which harms the negotiating process, for example, issuing inappropriate press releases; refusal to sign a written agreement in respect of the negotiation process or otherwise; and failure to do what a reasonable person would do in the circumstances. A quick glance at this list shows us that some standard competitive and hardball tactics may effectively amount to ‘bad faith’ for the purposes of the Native Title Act and are, therefore, contrary to law. Similar types of provisions can be found in other areas of Australian law. Another federal statute, the Australian Consumer Law (ACL), prohibits people from engaging in conduct that is ‘misleading and deceptive’ (Ch 2, s 18) or ‘unconscionable’ (Ch 2, s 22) and from making ‘false and misleading representations’ (Ch 3). Thus, negotiators could fall within its terms. There is considerable case law in relation to the meaning of misleading and deceptive. For example, under s 18 of the ACL, where there is a specific request for information, omitting to disclose it may not only have ethical but also legal repercussions.15 Section 22 of the ACL also contains a list of factors that courts may take into account in determining whether behaviours are unconscionable or not. They include the bargaining power relationship between the parties, the reasonableness of contractual terms and the parties’ ability to understand [page 222] them, undue influence, good faith, applicable industry codes, and any failure by the supplier to disclose information that may affect the interests of, or pose a risk to, the other party. Notably, the list in s 22 also refers to ‘unfair tactics’. These are not defined, but would potentially include many of the hardball tactics discussed above. Chapter 3 of the ACL also refers to Unfair Practices. The aim of these

sections of the ACL is to promote fair and honest business dealings and to protect both consumers and ethical traders. For instance, according to Ch 3 of the ACL certain practices by an individual are prohibited, including amongst others: false representations in relation to goods and services (s 29) or the sale of land (s 30); misleading conduct in relation to employment (s 31) and as to the nature of goods (s 32) and services (s 33); and/or bait advertising (s 35). Finally, there are numerous examples of case law demonstrating the risks of engaging in negotiating behaviour that is misleading, unconscionable, deceptive, or which is an abuse of power or otherwise takes unfair advantage of the other negotiator.16 In the case of Legal Services Commissioner v Mullins, a solicitor was found guilty of professional misconduct in relation to negotiations conducted on behalf of a client.17 The matter concerned a claim for personal injuries, which was being negotiated with the assistance of a mediator. Throughout the negotiations, the solicitor failed to disclose the fact that his client had developed cancer, a fact that would significantly affect the negotiated outcome, in particular, the claim for loss of future expected income. The Tribunal held that the omission misled the other party and was unacceptable negotiating behaviour for a solicitor. The moral of the story is to use competitive tactics with integrity. If you are a professional negotiator, make sure you consult your applicable code of professional conduct and, beyond that, be aware that all negotiators have ethical and legal duties.

Overcoming impasses: so close yet so far away 10.8 Recall the case example of the retail bookstore, Barnes & Noble, and the publishing house, Simon & Schuster. The parties had reached an [page 223]

impasse in their negotiations. Here, the likely cause was the negative impact of hardball tactics on the negotiators’ relationship and level of trust. However, negotiators can find themselves at an impasse — also referred to as a deadlock — for different reasons. They are likely to reach impasse where there is no zone of agreement, that is, where there is no positive overlap between the parties’ bottom lines. For example, where the most you can afford to pay for a second-hand car is $5,000 and the lowest the seller can go is $6,000, then an impasse is to be expected, assuming the parties’ bottom lines do not change.18 However, even if there is a positive zone of agreement — for example, the most you can pay is $6,000 and the seller is prepared to go down to $5,000 — and the parties should theoretically reach agreement, they still may lock horns on an issue and not be able to move beyond it. This may occur where one or more parties engage in hardball tactics or are under time or resource pressure.19 Sometimes when parties reach an impasse, one party will decide that the potential win from a negotiation is not worth the time investment. For example, Simon’s mobile modem device for his Apple MacBook is faulty. He wants to cancel his current contract and move to a new service provider. The current service provider indicates its intention to charge Simon a penalty for breaking the contract. The negotiations on the phone get nowhere. Simon is furious and is advised that he can lodge a complaint with the telecommunications ombudsman, which would then catapult Simon to a higher level of negotiations with the service provider. Simon has a good chance of being released from the penalty clause at the next set of negotiations, but he decides it is not worth his time. He uses the internet service for business and he earns more in an hour than the amount of the penalty; the firm will likely pay this cost anyway. Simon walks away from the impasse situation. Impasses can also occur when emotions escalate, where people clash, where individuals have invested time and effort into the conflict and find it hard to let go, and where they have dug themselves into positions and feel the need to save face. An impasse can occur during any stage of the negotiation. It mostly occurs

after option generation has begun or offers have been made, although it can develop earlier where, for example, emotions become heated and personalities clash. To some extent, impasses may be preventable. Inexperienced negotiators often fall into behavioural and psychological negotiation traps (listed in Table 10.3) that may contribute to impasses. [page 224]

Typical negotiating traps 10.9 Table 10.3 sets out some typical behavioural and psychological negotiation traps. Table 10.3: Typical Negotiating Traps No 1

Negotiating trap20 The pacing trap Timing is important in negotiations, so being too eager to make concessions on the one hand, or too hesitant on the other, can lead to an impasse — so it is important to pace your concessions. Being too generous and eager at the start and using up all your concessions in the first half of the negotiation may mean you have nowhere to go after that. If you are not prepared to move any further, there is a good chance that the other negotiator will reciprocate, thereby leading to an impasse. Negotiators who find themselves in this type of situation often feel encouraged to be generous when there is a positive atmosphere, and when they perceive a strong rapport between the negotiators. At the other end of the spectrum, being too begrudging and slow to make concessions at the start can lead to impasse early on and damage the relationship between the negotiators.

2

The predictability trap Predictability in relation to knowing the steps of the negotiation dance — that is, the process — is very important. However, too much predictability can contribute to an impasse as explained below. A negotiator can be too predictable by, for example, making exactly the same level of concession each time the other party raises an issue or makes a concession itself. This type of behaviour indicates someone who has planned for one scenario only and is sticking to that plan no matter what the other negotiator does. Here, predictability attaches not only to the negotiation process (predictable concession-making) but also to the content (the size of the concessions are always the same). Excessive predictability can

also be a sign of inflexibility and the inability to appropriately adjust your concessionmaking plan where the other negotiator’s concession-making moves are not what you expected. Negotiators can easily take advantage of such predictability and may prolong the negotiation to see how far they can take the overly predictable concession-making. 3

The anchoring trap Negotiators who open with a firm reasonable offer but then fall for the anchor of the other negotiator’s soft optimistic offer may reach a point where they realise that they have given more away than the other side has and, as a result, feel manipulated by them.21 They have overly relied on the other negotiator’s anchor and, at this point, are unlikely to make any more concessions. They are

[page 225] Table 10.3: Typical Negotiating Traps — cont’d No

Negotiating trap angry — a recipe for impasse. For example, a couple seeking to purchase an apartment offer a firm reasonable $450,000, expecting to need to move a little but not much from that figure. The vendors, who are expecting to bargain, come back with $600,000. Given the large gap, the prospective purchasers then move more than they intended and offer $510,000. The vendors counter with $580,000. After some back and forth, both sides agree on $545,000. The purchasers have paid nearly $100,000 more than their original offer. The vendors have received $55,000 less than their original offer. The vendors’ ‘high’ anchor has worked for them and influenced the purchasers to make a large initial concession.

4

The status quo trap Most people tend to feel comfortable with options that are closer to what they know — the status quo — and may hesitate to choose (better) options that are very different or difficult to compare. The hesitation increases in the case of multiple options. The status quo trap is even more pronounced and negotiators are nervous about getting creative when they are not prepared in terms of the Negotiation Navigation Map.22 As we know from Chapter 8, anxiety may impact the capacity of the short-term memory in a negotiation setting and therefore encourage use of the status quo, which in turn may contribute to impasse and poor decision-making.

5

The sunk-cost trap Sunk costs are costs that are irrecoverable. It’s something that you already spent and that you won’t get back, regardless of future outcomes. However, most of us don’t like to lose, nor do we like to admit that we have made a mistake. We have a desire to protect our earlier decisions. So if we have dug ourselves into a hole, it is tempting to keep digging rather than cut our losses, abandon the hole and move on. Here are some illustrations of the sunk-cost trap:

‘We have invested so much into this joint venture deal already, we can’t back out now.’ ‘I have already bought the theatre tickets, so I have to go even if I’m sick.’ ‘I’ve already paid for the food, so I should eat it (even if I’m full or it is far too much/rich/spicy).’ Here is an example of a negotiation where both sides did NOT fall for the sunk cost trap. Although no deal was done in the end, we suggest that this is an example of a successful negotiation: In the late 1980s the then global accounting firm, Arthur Andersen, was planning a merger with another global accounting firm. One of the authors was working for Arthur Andersen at the time and recalls the event. Both organisations had invested significant resources and time in working towards the merger. Everyone thought it was a ‘done deal’. Staff had been informed about the likely changes and new office space in certain locations had been identified. At the eleventh hour (or so it seemed) the planned merger was called off on the basis that the organisational cultures were too different.

[page 226] Table 10.3: Typical Negotiating Traps — cont’d No 6

Negotiating trap The reactive devaluation trap The reactive devaluation trap occurs where you reject or criticise apparently useful suggestions, options or ideas when they come from the other side. Sometimes even the best suggestions don’t sound appealing when they come from someone you perceive to be your adversary. However, refusing to consider useful ideas from the other party can strain the negotiating relationship and lead to stalling and deadlock in negotiation.

7

The over-cautiousness trap People who are risk-averse tend to be pessimistic and give more weight than others to the worst-case scenario. This means they are known to (unwittingly) slant probabilities and estimates to emphasise risk and play it safe. If, in the course of bargaining, a number of ‘safe’ decisions are made and bundled together, this can distort your analysis of the risk involved in relation to the current offer. Distorted risk analyses can make it more difficult to reach agreement, especially where you are looking for ways to manage a risk you perceive to be larger than, or different to, that which it actually is. Where you do reach agreement, you may have negotiated a range of — largely unnecessary — risk-minimisers such as higher premium insurance and additional product testing, and additional costs will likely be added to the product.

8

The recallability trap We discussed in Chapter 8 how people are influenced by human stories and tend to give these more weight in decision-making than statistics. The recallability trap refers to people’s tendency to recall past events relevant to the negotiation, which they have

experienced, witnessed or heard about. Dramatic events of the past are particularly effective in this context. Where the past events are very positive — for example, involving great financial and personal gains — people may be overly optimistic and discount the risk. Conversely, where the past events are negative — for example, involving great loss or pain — people will tend to be overly cautious. Consider the example of an estate in relation to which the parties are trustees and the likely beneficiaries of the estate. In negotiations about how to invest the capital of the estate, one party — still frightened by the Global Financial Crisis — is taking an overly cautious approach and wants it all invested in no-growth (but very secure) bank deposits. 9

The framing trap Sometimes negotiators can trigger a very different response depending on the frame they use. Consider the following illustration. A new student asks his professor: ‘Can I check Facebook while researching?’ The professor responds with an emphatic ‘no’, reflecting her concern about distractions from research. Later, the student comes across Julie, another student, checking her emails in the research lab and warns Julie that the professor will not approve. ‘That’s strange’, says Julie, ‘I asked Prof if she thought I could also research while on Facebook and she said “There is never a bad time to research; pursuit of higher knowledge is a lifelong goal”’.23 Here Julie and the

[page 227] Table 10.3: Typical Negotiating Traps — cont’d No

Negotiating trap other student used different reference points for their questions and they were given different answers. Refer to the discussion on framing and risk in Chapter 8 for more examples of the framing trap.

10

The confirming evidence trap Responses to questions will vary not only according to the framing of the question, but also according to whom you ask. For example, if you want to get cheaper quotes for a retail product you want to buy, then you will go to wholesalers or discount outlets, or you will get quotes from the internet that are likely to be less than the offer from the local shopping centre. You will tend to play down factors such as warranties, trust marks, customer service and other quality-related indicia. If you wish to invest in a start-up IT company, who will you ask to assist you with risk assessment — your elderly and risk-averse accountant or your Generation Y computer genius neighbour? It may depend on what answer you want … Where, for example, you are nervous about making a decision, you may seek out advice and independent criteria that directly or indirectly support your risk-averse instinct. In such a situation, you should not be surprised when you reach an impasse and the other

negotiator has different evidence, which they have confirmed through equally legitimate advice and standards. 11

The baseline trap The baseline refers to the basic level of information that people use to make decisions. Generally, you make a number of assumptions, some of which may be correct and some of which may be incorrect. When you fail to check your assumptions, you may find yourself working on the basis of misinformation or incomplete information — this can distort your baseline and lead to incorrect conclusions and calculations. In this situation, working with inaccurate information may lead you to dig in your heels on a particular issue and find yourself at an impasse.

Reflect on the above list of negotiation traps, being aware of these inbuilt human biases. Recognising them goes a long way to resisting them in future.

Impasse breakers — the key questions 10.10 As a general rule of thumb, the later the deadlock occurs in negotiation, the less room you may have to manoeuvre. For example, when you are stuck on the last substantive issue, there are not any ‘new’ issues to move to and many negotiators are at a loss as to what to do. However, as we will see below, there may be opportunities to revisit previous issues and to try some process and relationship interventions. Talk to experienced negotiators and they will give you many ideas for overcoming impasse situations. A special type of impasse situation is what Wade calls the ‘last gap’ [page 228] between negotiators before they reach agreement. It may be the toughest issue that has been left until last, or the final increment in a concession-making process and the parties are stuck on it.24 When you are stuck in an impasse situation, it is great to have a repertoire of tactics at your fingertips. However, you are unlikely to be able to recall all of them at once, especially at a time of heightened tension — remember the effects of stress on our short-term memory?25 For this reason, we offer you an easy way to remember quadratic model to help you both recall tactics and to generate new ones to overcome impasse situations.

We introduced you to this schema in Chapter 3 when we explored classifications of interests in negotiation, which are: substantive interests; procedural interests; relationship and psychological interests; and principle interests. The schema is equally pertinent to dealing with impasse situations. In terms of the choice of tactics to use in impasse situations, remember that if you keep doing the same thing, you will keep getting the same result. So you need to change how you are doing things. Therefore, the key question to ask yourself is: ‘What can I change?’ To give us structure and direction in selecting tactics to work through an impasse, our key question then becomes four questions: 1. 2. 3. 4.

Process: How can we change the way the process is being conducted? Relationship dynamics: How can we change the relationship or interaction dynamic in the room? Substance: How can we change the structure, substance, perception or content of the offer on the table? Principle: How can we change the way we perceive the principles involved? [page 229]

Figure 10.1: The Impasse Quadrant

How can we change the way the process is being conducted? 10.11 Changing aspects of the negotiation process is a popular tactic to break through an impasse. The following interventions describe different ways to do this: Move to another issue. It is easy to get locked into a particular issue. Sometimes the simplest and most powerful thing to do is to let it go for the time being and move on to another issue on the agenda. Remember your agenda is a guideline only, and you can adapt it to suit your process needs. If possible, move to an issue which is less contentious or where you may be able to make some easy agreements. Agree on a process to determine the issue. This could include: – Splitting the difference. Where the difference is divisible, such as an amount of money, parties may choose to split it. While splitting down the middle sounds fair, negotiators should consider factors such as concessions made thus far, goals and alternatives. – ‘You cut, I choose’. Here, one party divides the assets and the other party gets to choose a pile. If this reminds you of what your parents made you do as children with the last piece of cake, then it’s because this tactic is exactly the same. – Flipping a coin. This is a great Australian tradition; however, be careful — it is an all-or-nothing outcome. – Blind offer/splitting the difference. Here parties simultaneously put forward their last offer in a sealed envelope. If the offers are within a certain percentage of each other — say 10 per cent — the parties agree to split the difference.

[page 230] –

– –

Random chance. Here the parties write various possible solutions to the impasse on slips of paper and place these into a container. They invite a neutral person to draw one slip of paper out of the container and they agree to be bound by the solution on the selected slip of paper. Using a third party. Here this would mean bringing in, for example, a mediator, valuer, expert appraiser or adjudicator. Going to court on the issue if it can be framed as a separate legal claim.

Separate and defer. It may be possible to reach an agreement on all other matters and agree to revisit the impasse issue in the future. Change the mode of the negotiation. If you are negotiating by teleconference, it might be better to meet face-to-face. Conversely, in a face-to-face negotiation, you might decide to deal with a particular issue via email or to have your experts sort out certain points on the phone before getting back to you with a joint answer. How can we change the relationship or interaction dynamic in the room? 10.12 Changing the way people are relating to each other sounds very difficult. And it can be. At the same time, there are many simple interventions that you can try to change the interpersonal dynamic: If there are advisers, remove the advisers and leave the parties to themselves for a set period of time, such as 20 minutes. Sometimes the parties know exactly what they need to do and, if they have had a good relationship in the past, they may be able to rely on this to get them through an impasse, one on one. If there are advisers, remove the parties and leave the advisers to sort out the issue for 20 minutes or so. Sometimes the parties are still stuck in the past and focused on blame, retribution and continuing the conflict. Here it can be really useful for the advisers to get together for a short time to see what options they can generate that may be acceptable to their clients.

If there are advisers and there appears to be a tension between them, change the individual adviser of one party. We tend to focus on the relationship between the parties, however the relationship between the individuals who are the advisers is also relevant to constructive negotiation progress. Where the parties are organisational representatives, and there appears to be a tension between them, change the representative of one party. Sometimes two individuals just do not get one. The negotiation dynamic can change dramatically with the introduction of a new personality to the negotiation table. [page 231] Rearrange the seating with a view to changing the interpersonal interaction. The communicative power of physical space and seating arrangements has been addressed in Chapter 5. Moving particular personalities closer together or further apart can shift the interpersonal dynamic in the room and, consequently, how people are talking about the subject-matter of the negotiation. Take a break: – Go for a walk to clear your head and get your amygdala26 in order. – Eat a meal with the other negotiators and talk about anything except the negotiation. – Talk to significant others. – Talk to advisers. How can we change the structure, substance, perception or content of the offer on the table? 10.13 Changing the nature of the offer on the table involves looking at the subject-matter of the negotiation in a different way. This is illustrated by the following interventions: Explain the assumptions upon which the offer is based. Go back and

talk about how the amount or value was calculated. What process or criteria, benchmarks or standards were used? Sometimes when people can’t agree on numbers, they can agree on standards and calculation methods. Risk analysis. As discussed in other parts of the book,27 there are a variety of risk analysis instruments that can be used to add a fresh perspective to the offer on the table. Re-examining how non-agreement will affect different parts of your life and looking again at your alternatives can change your perception of the value of the offer on the table. A thorough risk analysis can also help you avoid many of the human biases and negotiating traps set out earlier in this chapter. Use exploratory language and hypotheticals to try out different possibilities. For example: – ‘What else could we do to make this proposal more attractive to your board of directors? We have one good idea. What about some others?’ – ‘When we look back on this negotiation in three years’ time, what will have been most important for each of us?’ [page 232] Conditional-linked bargaining. Revisit other issues and ask: ‘If I were to change my request in relation to the number of training sessions I require for my staff, would you be prepared to move on the length of the sessions?’ Leave some ambiguity in the offer and the agreement. Honeyman recommends the use of ambiguity to deal with impasses.28 He suggests that ‘an adequate, if imperfect’ agreement can be effective provided there is an appropriate review process,29 which includes a way to deal with disagreements that may arise in relation to the ambiguous terms, for instance, referral to an expert or a mediator. In addition, it is important that the parties feel that the negotiation process has been fair and that there is no ‘buyer’s remorse’ once the agreement has been finalised. Generally speaking, when parties have invested time and effort into reaching an agreement that is workable overall, they are motivated to sort through some ambiguous terms rather than see the entire deal unravel and land in court as a new dispute.

Transfer the subject-matter of the impasse to a third party. Sometimes your perception of the subject-matter of the impasse — an amount of money or an item with emotional significance — and its importance is tied up in the fact that you don’t want the other party to have it. It might be easier and more efficient to donate the money or the item to a charity in order to get an overall agreement. Add other values and structures to the offer on the table. Introduce (or remove) time frames, interest rates, loan structures, investment structures, taxation options, and so on. Where a negotiation party may not be prepared to pay the other a sum of money, it might be prepared to offer the other the equivalent in kind or even to forward the sum of money on a loan basis. For example, a tourist project on a Pacific island was devastated by a cyclone, resulting in a number of disputes. The owner of one affected hotel was in financial difficulty and was not able to pay building contractors for work done. After both parties were stuck in impasse, they decided to reconvene with the assistance of a mediator. In private meeting, the mediator questioned the hotel owner about anything non-financial he might have that would be of value to the builder. After some patience and some prodding, the hotel owner said, ‘No. I don’t have anything except sand. Lots of sand on [page 233] my beaches.’ As it happens, sand is used in making concrete and was in short supply in the building industry. A deal was done with the hotel owner offering the building contractor a great deal of sand! ‘Chunk’ up or ‘chunk’ down’. Can you break the impasse issue down into smaller chunks and deal with them separately? For example, if the parties are stuck on a sum of money, it might be useful to ‘chunk’ it down in terms of what the money represents, such as investment made so far, loss of future expected income, legal costs, other costs associated with the dispute, rights to intellectual property, costs associated with finding a new joint venture partner, costs associated with refinancing, and so on. There may be different and creative ways of approaching the different chunks.

Alternatively, is it helpful to combine the issue with another issue in order to deal with it? For instance, in salary negotiations between a senior executive and the organisation she works for, the negotiators get stuck pretty quickly on the money issue. The senior executive then introduces another issue into the negotiations — she links the salary talks with a discussion on a new division of the firm that the partners want her to start up. How can we change the way we perceive the principles involved? 10.14 Changing our perception of principles or dealing with them differently does not mean that one of the parties must compromise their principles. This is the very thing that neither party wants to do when it is a matter of ‘principle’. An impasse about a matter of principle is arguably the most difficult type of impasse to overcome. Here are some useful suggestions: Ask yourself what is behind the principle. Very often principles are articulated as positions — so if you can get to the feelings, concerns, interests and human needs that lie behind the principle, you may be able to move the negotiation forward. For example, if the matter of principle is a public apology, then this is really a position. The other negotiator wants a public apology. They say it is a matter of principle. What might lie behind this position? They may feel humiliated, let down and embarrassed. These feelings may reflect some basic human needs around respect, recognition and belonging.30 Using the communication and interpersonal skills discussed in Chapters 6 and 7 to acknowledge and respond to needs can help get discussions moving again. [page 234] Agree to disagree on the matter of principle. Leave it unsettled. Can you agree on other points and achieve a partial settlement? Bring in a mediator. Mediators are skilled in helping parties get down to what is most important for them and what is driving their sense of principle. If you cannot get to this point in a negotiation, a mediator can be of

assistance. Mediators can also help parties to save face and this may make it easier for them to step back from principle. Use a hybrid process. If interest-based processes do not work in relation to the principled interests, then advisory or determinative processes may be suitable. Med-neutral evaluation and med-arb are two widely used dispute resolution processes, by which those disputes which cannot be settled at mediation — such as a matter of principle — can be subject to the advisory process of neutral evaluation, or the determinative process of arbitration. So next time you find yourself stuck while negotiating, think about change and ask yourself the key questions: What can I change about the process, the relationship dynamics in the room, the way the subject-matter is being managed, or the matters of principle? You may not remember all the interventions discussed in this section, but you can certainly remember these four key questions, and the rest will follow.

Wicked problems 10.15 Despite all your best skills and efforts, some negotiation situations remain intractable. It may have little to do with you — or your counterpart. Instead, you may be encountering a ‘wicked problem’ — a particular type of situation that is just recently receiving attention in the negotiation literature. Although the expression has been used in public policy and other contexts for some time, in the negotiation field ‘wicked problems’ have taken on a particular meaning. Honeyman and Coben describe wicked problems as exhibiting any combination of the following features: The problem is ill-defined and resists clear definition as a technical issue, because wicked problems are also social, political and moral in nature. Each proposed definition of the problem implies a particular kind of solution, which is loaded with contested values. Consequently, merely defining the problem can incite passionate conflict. Solutions to a wicked problem cannot be labelled good or bad; they can only be considered better or worse, good enough or not good enough. Whether a solution is good enough depends on the values and judgment of each of the parties, who will inevitably assess the problem and its potential

solutions from their respective positions within the social context of the problem. [page 235] Every wicked problem is unique and novel, because even if the technical elements appear similar from one situation to another, the social, political, and moral features are context-specific. A wicked problem contains an interconnected web of sub-problems; every proposed solution to part or the whole of the wicked problem will affect other problems in the web. The only way to address a wicked problem is to try solutions; every solution we try is expensive and has lasting unintended consequences. So, although we have only one shot to solve this wicked problem, we will have plenty of opportunities to develop our skills as we deal with the wicked problems that we create with our attempted solutions.31 Wicked problems can emerge in any number of settings. Think of negotiation situations where one or more of the characteristics listed above is present: grappling with climate change; aligning public investment policies for economic development; reaching consensus about school funding levels; achieving peace between conflicting communities; addressing systemic concerns about racial profiling; implementing complex organisational change; and the list goes on … Each of these examples illustrates a wicked problem — problems that cannot be ignored, and yet the very attempt to address them creates new problems that shift and change the nature of what must be addressed. Negotiating wicked problems feels just like trying to grab hold of a cloud. Unlike traditional, or ‘tame’, negotiations, wicked problems are not amenable to the same problem-solving strategies described elsewhere in this book. Instead, as Docherty writes, negotiators need to ‘consider how the problem interacts with socially negotiated norms and the attendant structures, organizations or social institutions that have become problematic’.32 What does this mean? It means that awareness of context becomes particularly

important. It also means that, as negotiators, we need to think differently — to adopt a ‘post-modernist’33 way of understanding how people and social groups make sense of their social experiences that frame each group’s understanding of what is being negotiated: how they ‘make meaning’. [page 236] Meaning-making occurs at two levels. At the broad — or ‘macro’ — level, meaning emerges from and is embedded in social groups through the group’s ongoing patterns of social interaction. Think of the many and varied cultural practices that are expressed the world over. At a relational — or ‘micro’ — level, meaning emerges from specific interpersonal interactions. Think of how individual conversations evolve in surprising and unexpected ways, leading to new and novel understandings that could not exist before that particular interaction — those shared ‘aha!’ moments. When put together, the macro and micro levels of meaning-making help us understand the process by which social groups and their members ‘create their shared social world’. Recognising that different groups create their own shared social worlds — what Docherty describes as a ‘negotiated reality’34 — helps us to better understand wicked problems. As Docherty writes, every issue-specific negotiation occurs inside a negotiated reality. In ‘tame’ negotiations, the parties either share a common sense of this reality or, at least, they have ‘reached a level of “worldview détente” that enables them to agree on the nature of their problem, the process for negotiating a solution to their problem, and a sense of what constitutes a fair, just, acceptable, and/or appropriate solution to their problem’.35 In contrast, with wicked problems the parties bring to the negotiation their own different ‘negotiated realities’. In other words, they do not define the problem in the same way as their counterparts and they draw upon different conceptions of how even to define the proper way to negotiate. Mahuad illustrates the difficulty of wicked problems by describing a transit crisis experienced in the city of Quito, Ecuador.36 The city of more than 1 million inhabitants is located in a spiny, 2,800-metre-high mountainous valley at the foot of the Pichincha volcano. Its transit system consisted of old,

privately owned buses that did not alleviate the city’s congestion problems and were exacerbating serious air pollution and public health conditions. The system was regulated by the national Ministry of the Interior and national police, beyond the purview of city government. It was believed to be tied to entrenched and vested interests and influenced by a powerful drivers’ union whose previous strikes had [page 237] been known to overthrow past Ecuadorian governments. Well beyond differing ‘interests’, each of the many stakeholder groups experienced and came to the problem with a different ‘negotiated reality’, and drew upon different conceptions of how even to define what the ‘problem’ was or the proper way to negotiate. In the face of this Gordian knot, a new mayor was elected on the promise of updating the transit system. Addressing this problem would involve the Ecuadorian national congress changing the bus system’s regulatory oversight, changing the culture of moral ownership over the bus system, changing traffic patterns and the feel of Quito’s city centre, and navigating conflicting public perceptions about the costs and benefits of any change in the face of contradictory public information, among many other interlocking challenges — all measures which would meet with the resistance of entrenched interests. Moving the project forward required the mayor to apply overlapping decision-making, communication and leadership skills. Facing constantly shifting dynamics, the negotiations needed to advance the project by involving: … multiple ancillary (and even contradictory) processes. Furthermore, success depended on leaders who could identify and negotiate tame problems inside of overall wicked problems, while also managing a larger cultural change process that resulted in revisions of the ‘socially negotiated’ patterns of power, privilege and influence tied to the existing bus system.37

In short, any attempt to make any change on any part of the problem would face resistance, would cause unanticipated new problems to emerge, and would disrupt deeply entrenched and incommensurate social and political realities.

In a very different context, the 1990s best-selling book Men are from Mars, Women are from Venus also describes a type of wicked problem. The book argues that conflicts among the genders can be understood by the different psychological make-up of men and women. Whether the gender claim is correct or not, the book illustrates how differences in ‘negotiated reality’ can lead to fundamental misunderstandings. Think back to a time when you were trying to have a conversation with someone and there simply was no way to understand them, or to be understood. Even if you were speaking English to one another, it is as if you were speaking different languages — or living on different planets. [page 238] Figure 10.2: Parties Move Back and Forth Between Two Types of Negotiation

So, what’s a negotiator to do? By their very nature, wicked problems are not amenable to simple solutions or checklist strategies. However, we have collected various suggestions, drawn from the works of Honeyman, Coben, Docherty and others,38 as a point of departure. As you will see, addressing wicked problems involves changing our ways to think more than what to do in a negotiation situation: Pull back from the ‘presenting’ negotiation problem to understand whether you and your counterpart are working from the same or from different ‘negotiated realities’. Figure 10.2 illustrates how issue-specific negotiations

are embedded within larger negotiated realities. Until differences in negotiated realities are acknowledged and managed, parties will find ways forward with specific issues to be elusive. Exercise what Docherty calls ‘double vision’, that is, focus simultaneously on the immediate problem (problem focus), on the process of social (re)negotiation (the different ‘negotiated realities’), and on the interplay between the two levels of the negotiation. It is likely that you will move repeatedly back and forth between these levels in your negotiation interactions. Plan on multiple interventions. Because wicked problems are fluid, you may appear to be revisiting issues again and again, each time involving shifting underlying ‘realities’. [page 239] Remain creative and open in a way that facilitates continued learning and revision of your understanding of the ‘problem’ and possible solutions. Addressing wicked problems involves critical and creative thinking. Remain aware of the ways in which your own actions, and interactions, reshape the problem(s) you are addressing. Be willing to try solutions and notice what impact they have on the specific problems and on the negotiated reality Drawing on his experience in the US Army and its ‘Design’ strategy for negotiations, Lira identifies five activities that negotiators also can employ to address wicked problems:39 Understand the current context, which entails understanding the environment (context), why it exists as it does, how it got to be in the state it is in, and what that means for the actors involved. Visualise a future context, or desired state, based on the perspectives of all stakeholders involved in the environment. Develop a problem frame that articulates the difference between the current environment and the potential future environment.

Develop a ‘theory of action’ that will help change the environment to the desired state, one in which the correct problem is solved. Develop a continuous assessment system to gauge if the environmental frame (context) and problem frame are the correct frames and that the approach being employed is appropriately shifting the environment. Taken together, these suggestions offer creative ways to better understand, and move forward through, wicked situations. They also offer valuable insights for any constructive negotiator who seeks to deepen their understanding of how to negotiate complex and elusive problems.

Summary 10.16 In this chapter, we considered two aspects of tough negotiations: competitive hardball tactics and impasses, before moving on to examine the most vexing of negotiation situations: wicked problems. [page 240] We began by identifying hardball tactics and providing numerous examples of these (see 10.3 and Table 10.1). We reflected on the different reasons why negotiators use hardball tactics, concluding that for some people it is their default practice. We then offered some alternative strategies and tactics (at 10.4 and Table 10.2). Many of you are interested in how to respond to hardball tactics, so we outlined four different types of responses, including the ‘name and disarm it’ response (at 10.5). Some hardball tactics can be unethical and even contrary to law. We discussed the nature of ethical negotiation practice (at 10.6) and provided examples of Australian legislation and case law (at 10.7) that appear to restrict the use of hardball negotiation tactics. In relation to the second aspect of tough negotiations — impasse situations — we began by examining the reasons why negotiators may find themselves at an impasse in negotiation. In this context, we introduced 11 negotiating traps that can lead to impasse. When negotiators reach impasse, it is unlikely that continuing to do the same thing will break it. Therefore, we recommend

asking yourself the four key questions (at 10.10–10.14) about what you can change in the negotiation. In relation to wicked problems, we described characteristics that can make a negotiation situation ‘wicked’. We showed (see Figure 10.2) how negotiation problems are embedded in larger social or ‘negotiated’ realities and the importance of addressing those larger realities. Finally, we offered a variety of suggestions for negotiators to apply when faced with wicked problems.

Key negotiating points 10.17

The key negotiating points covered in this chapter are listed below:

Check your ethics. People use competitive and hardball tactics for different reasons — often because they don’t have an alternative. Hardball tactics can be used ethically and unethically. Sometimes they may even be against the law. As a professional negotiator, check your ethical codes of conduct and the relevant applicable law. Learn to recognise hardball tactics in yourself and in others. We have listed 19 hardball tactics here, and there are more. Consider alternative methods. Where you use hardball tactics, consider using alternatives that are more appropriate and constructive. Name and disarm. You can respond to hardball tactics in different ways. The ‘name it and disarm it’ approach is generally the most effective: 1. Recognise the tactic. 2.

Know your triggers and stop in time. [page 241]

3. 4.

Name the issue. Get agreement on how to move forward.

Watch out for traps. Impasses in negotiations can be prevented. Watch out for the 11 negotiating traps. In an impasse situation, ask the key question: ‘What can I change?’ When you have reached an impasse, ask yourself: ‘What can I change about: – –

the way the process is being conducted? the way the negotiators are relating to one another?

– –

the way the subject-matter of the negotiation is being structured or perceived? the way the parties perceive the principles involved?’

Recognise when a negotiation situation is wicked: –

Take a step back to understand the different ‘negotiated realities’ at play.

–

Remain open and creative as you navigate the ‘double focus’ of the specific problems and the negotiated realities in which they are embedded.

___________________________ 1.

K Lutz, ‘Top 10 Negotiation Failures of 2013’, (viewed 27 May 2015).

2.

K Lutz, ‘These Examples Illustrate the Importance of Negotiation in Business: Top 10 Business Negotiations of 2013’, Harvard Law School Program on Negotiation, Daily Blog, (viewed 27 May 2015). See G Goodpaster, A Guide to Negotiation and Mediation, Transnational Publishers, New York, 1997, Chs 4 and 5; R Lewicki, B Barry and D Saunders, Essentials of Negotiation, 4th ed, McGrawHill/Irwin, Boston MA, 2007, Ch 2.

3.

4. 5.

See also Chapter 8 on risk aversion and G R Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable People, Penguin, New York, 1999, at 187–8. Taken from Shell, note 4 above, at 229, with minor adaptations.

6. 7.

Based on Lewicki, Barry and Saunders, note 3 above, at 48–9. Based on B Ury, Getting Past No, Bantam Books, New York, 1991, at 41–51.

8. 9.

Ury, note 7 above, at 41ff. Shell, note 4 above, at 18.

10. United Group Rail Services Ltd v Rail Corporation New South Wales [2009] NSWSCA 177. See also J Carroll and I Hughes, ‘Early Career Lawyers: How Good is Good Faith?: Baldwin and Anor v Icon Energy Ltd and Anor [2015] QSC 12’ (2015) 35(4) Proctor 28–9; and Baldwin v Icon Energy Ltd [2015] QSC 12. 11. See F Bannon, J Dreosti and R Poole, ‘What Do You Mean I Have to Negotiate in Good Faith?’, Insights Newsletter, Clayton Utz, 16 September 2009, referring to the New South Wales Court of Appeal case, United Group Rail Services Ltd v Rail Corporation New South Wales [2009] NSWSCA 177. The article is available at: (viewed 27 May 2015). 12. See Bannon, Dreosti and Poole, note 11 above. 13. See Bannon, Dreosti and Poole, note 11 above. 14. Western Australia v Njamal People (1996) 134 FLR 211 at 224 and 225. 15. See the case law on s 52 of the Trade Practices Act 1974 (Cth), now s 18 of the ACL, for example, McMahon v Pomeray Pty Ltd (1991) ATPR 41-125. 16. See, for example, RACV Insurance Pty Ltd v Unisys Australia Ltd [2001] VSC 300. 17. Legal Services Commissioner v Mullins [2006] LPT 012. 18. On no zone of agreement, see Chapter 2 at 2.13. 19. On positive zones of agreement, see Chapter 2 at 2.13. 20. A number of these traps are adapted from J Hammond, R Keeney and H Raiffa, Smart Choices: A Practical Guide to Making Better Decisions, Harvard Business School Press, Cambridge MA, 1999, at

191ff. 21. On opening offers, see Chapter 4 at 4.12ff. 22. For the Negotiation Navigation Map, see Chapter 5 at 5.3ff. 23. The illustration is inspired by a joke presented in Hammond, Keeney and Raiffa, note 20 above, at 200. 24. J Wade, ‘Crossing the Last Gap’ in A Kupfer Schneider and C Honeyman (eds), The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator, ABA Section of Dispute Resolution, Washington DC, 2006, at 467ff. 25. On the brain and memory, see Chapter 8 at 8.4. 26. For information about your amygdala in negotiation, see the section on the brain in Chapter 8 at 8.3ff. 27. See Chapter 4 at 4.30 and Chapter 5 at 5.16. 28. C Honeyman, ‘Using Ambiguity’ in Kupfer Schneider and Honeyman, note 24 above, at 461. 29. For more on review processes, see Chapter 4 at 4.40ff. 30. On basic human needs, see Maslow’s needs hierarchy: A Maslow, ‘A Theory of Human Motivation’ (1943) 50(4) Psychological Review 370–96. See also John Burton’s theory of human needs: J Burton, Conflict Resolution and Prevention, St Martins Press, New York, 1990. 31. Christopher Honeyman and James Coben, ‘Navigating Wickedness: A New Frontier in Teaching Negotiation’ in Venturing Beyond the Classroom: Volume 2 in the Rethinking Negotiation Teaching Series, Ch 24, DRI Press, Saint Paul MN, 2010, at 440. 32. Jayne Seminare Docherty, ‘“Adaptive” Negotiation: Practice and Teaching’ in Venturing Beyond the Classroom: Volume 2 in the Rethinking Negotiation Teaching Series, Ch 26, DRI Press, Saint Paul MN, 2010, at 482. 33. Kenneth H Fox, ‘Negotiation as a Post-modern Process’ in C Honeyman, J Coben and G De Palo, Rethinking Negotiation Teaching: Innovations for Context and Culture, DRI Press, Saint Paul MN, 2009, at 20. 34. Docherty, note 32 above, at 482. 35. Docherty, note 32 above, at 483. 36. Calvin Chrustie, Jayne Seminare Docherty, Leanard Lira, Jamil Mahaud, Howard Gadlin and Christopher Honeyman, ‘Negotiating Wicked Problems: Five Stories’ in Venturing Beyond the Classroom: Volume 2 in the Rethinking Negotiation Teaching Series, Ch 25, DRI Press, Saint Paul MN, 2010, at 466. 37. Note 36 above, at 468. 38. For a comprehensive treatment of wicked problems, see Chs 24–27 in Venturing Beyond the Classroom, Volume 2 in the Rethinking Negotiation Teaching Series (DRI Press, Saint Paul MN, 2010) and Chs 17–21 in Educating Negotiators for a Connected World: Volume 4 in the Rethinking Negotiation Teaching Series (DRI Press, Saint Paul MN, 2013). All chapters are available for free download at (viewed 27 May 2015). 39. Leonard Lira, ‘Design: The US Army’s Approach to Negotiating Wicked Problems’ in Venturing Beyond the Classroom: Volume 2 in the Rethinking Negotiation Teaching Series, Ch 27, DRI Press, Saint Paul MN, 2010, at 521–2.

[page 243]

CHAPTER

11

Multiparty and team negotiations Introduction Multiparty negotiations Understanding communication in groups Team negotiations Summary

Objectives of this chapter Understand complex negotiations as an umbrella term for multiparty and team negotiations, and negotiations that involve multiple issues Examine the key complexities of multiparty negotiations and methods to prepare, manage and reduce the complexities Understand communication in groups Consider the opportunities and risks involved in team negotiations

Introduction 11.1 At this point, you will have an idea about the strategies, styles and skills you might apply as a constructive negotiator to arrive at wise and sustainable solutions. What happens, though, when you add more negotiators to the table, or you add more issues? The negotiations inevitably become

more complex, and with complexity can come chaos. Complexity and chaos theory tells us that when we have ‘numerous independent elements continuously interacting, and spontaneously organising and reorganising [page 244] themselves into more and more elaborate structures over time’ as we do in multiparty and multi-issue negotiations, then chaos and unpredictable behaviours can develop.1 However, although complex behaviour can seem chaotic and unpredictable, it can have simple causes. Therefore, the job of the constructive negotiator is to make the complex seem simple: and this can be done with preparation and management skills, and with the assistance of other techniques that we will introduce you to in this chapter.

Multiparty negotiations 11.2 First, what are multiparty negotiations? A multiparty negotiation refers to a negotiation involving multiple parties, that is, where there are three or more primary parties. Multiparty negotiations are also called multilateral negotiations, and these are distinguished from bilateral negotiations which involve two parties. An example of a multiparty negotiation is that of a family negotiation involving more than two family members, for instance, a family deciding where to go on a vacation. A very different example of a multiparty negotiation is negotiations that take place under the auspices of UNCITRAL (UN Commission on International Trade Law) to draft and adopt models laws on various topics. It is not unusual to have large numbers of people — say, 50 in the working groups or 100 in other forums — with diverse backgrounds, views and positions negotiating various versions of legal texts. The key complexities that arise in multiparty negotiations involve the relationships that form and re-form among the parties, and the idea of coalitions. Crump explains that coalitions in multiparty negotiations can potentially transform multilateral negotiations into bilateral negotiations. For example, where a number of distinct parties identify common interests and

speak with a unified voice, the structure of the negotiations may resemble a two-party rather than a multiparty negotiation.2 For instance, in the family vacation negotiation, two sisters might be interested in Bali as a holiday location — one because of the yoga retreats, and the other for an exotic adventure holiday — and they may form a coalition. On the other hand, their parents, who are on a budget, and a brother who has a fear of flying prefer a local country location and may form another coalition. This, in effect, will become a bilateral negotiation. Conversely, bilateral negotiations can transform into multilateral negotiations where parties indicate internal differences and fractionalise, [page 245] ceasing to act with one set of interests and goals. This can occur in team negotiations and is explored below — however, it can also occur in multiparty negotiations. For instance, although the sisters both initially preferred Bali, upon hearing that the adventure sports are not as good in Bali as they are in Thailand, one sister moves away from the coalition with her sister and begins to argue for Thailand as a holiday location. In essence, the family negotiation has moved from being a multilateral to a bilateral and back to a multilateral one again. When a grandmother then weighs into the discussion, hinting that she has never been to Bali or Thailand and would love to see them, she looks as if she might be joining one or other of the sisters in a coalition. Lewicki, Barry and Saunders describe five dimensions of complexity in multiparty negotiations with each dimension becoming exponentially more complex as the number of parties grows.3 1.

2.

Numeric complexity. It is difficult enough in a one-on-one negotiation to keep track of what your counterpart says, means, needs and represents. Multiply this by more parties and the task of keeping track of who represents varying perspectives, interests and value systems can appear overwhelming. Informational and computational complexity. One characteristic of every negotiation is the idea of ‘information asymmetry’, that is, each

3.

party knows information that the other party does not. This can lead to confusion and challenges with information management. Add more parties, and the challenge of remembering who said what to whom, based on what assumptions, in what context, can be daunting. Similarly, negotiations often involve numbers — calculating costs, damages, opportunities. While numbers can appear straight-forward, they are often built from models (such as different accounting programs) that may be programmed to apply different mathematical, economic or other numeric models. Social complexity. Social dynamics change when you go from two parties negotiating to multiple parties negotiating. Small group dynamics come into play, including the influence of always having an ‘audience’ — someone observing others interact. Further, social pressure increases to develop social and behavioural norms, even if those norms are not functional or don’t serve your or your principal’s interests. Parties may begin to self-censor, lest they be perceived as running foul of ‘the way things are done’. [page 246]

4.

5.

Procedural complexity. With two parties at the table, it is relatively simple to decide how the negotiation sessions will unfold. Parties might take turns or interrupt one another. Add more parties, and the need to explicitly manage the actual communication process becomes increasingly evident. It takes more time. It becomes more challenging to balance participation. In multiparty negotiations, one party may implicitly (or explicitly) take on a facilitative role. Or, the parties might need to bring in an outside facilitator. Without greater procedural coordination, the process risks grinding to a halt. Strategic complexity. In a two-party negotiation, the parties talk with each other, keeping other constituencies and stakeholders in mind. With multiparty negotiations, you are constantly deciding who to talk with, in what sequence, related to which issues, in private or under the scrutiny of other parties’ observation. Each of these (and other) choices has

strategic implications. This discussion highlights the complexity of multiparty negotiations and the myriad of potential relationship constellations that may exist. Table 11.1 illustrates how the number of relationships increases as the number of parties increases (and if we add negotiating teams into the equation, the number of relationships will grow exponentially). Table 11.1: Increase in Potential Relationships with an Increase in Group Size4 Size of group 2 3 4 5 6 7

Number of potential relationships 1 6 25 90 301 966

These different levels and types of complexity can create challenges. Below we explore how to prepare for multiparty negotiations, manage multiparty negotiations and ways to reduce the complexity of multiparty negotiations in order to create less challenging negotiations.

Preparing for multiparty negotiation 11.3 The usual steps of preparation, as outlined in Chapter 5, apply in multiparty negotiation as they do in bilateral negotiation. Negotiators need to identify the parties, consider their interests, relationships, alternatives and [page 247] so on, and think about ways of resolving the issues and communicating with the different parties. They will also need to consider their own goals and bottom lines. However, some of these things take on a more crucial aspect in multiparty negotiations, and there are some additional things that negotiators might consider doing when preparing for multiparty negotiations, for instance:

The relationship types. Use the Negotiation Navigation Map5 to map the relationships and to understand how they might influence the negotiation. The coalition behaviour. People form coalitions for different reasons. They might form a coalition to preserve or increase resources, which could be money, information, natural resources, energy, voting power, and so on. Or they might form a coalition to achieve some desired outcome, or to avoid a poor one. They also might form a coalition based around a shared sense of social identity, be it gender, power, role or some other connection. In the preparation, ask whether coalitions have been formed and whether you should join a coalition or form a blocking coalition (to block another coalition from achieving an advantage). When thinking of potential coalition partners, ask ‘who is in high or low agreement with your goals’ and ‘who generates high or low levels of trust from you’.6 You might also want to consider securing firm commitments from potential coalition partners before the negotiation begins in proper, but you will also want to retain the flexibility to switch allegiances if necessary. Who should be at the table? If you do not have the appropriate decisionmakers at the table, then the negotiations can quickly descend into chaos or stall altogether. Ask yourself, who needs to be available to reach agreement? Which key coalition personnel are essential? Sometimes getting the right people at the table can solve half of the problems, but this is not always an easy task. It might involve educating recalcitrant parties of the value of their attending; or it might involve a negotiation about attending the negotiation. Whatever is required, it is important that you remain mindful that the stronger the negotiation group, the better the negotiation solutions are likely to be. The roles that various group members will take. It is also important to think about what role the people at the table might take, or the people in your coalition might take. For this, you will most likely be thinking about DISC types of strengths and weaknesses, which we discussed in Chapter 7 (see 7.7). In multiparty negotiation, the literature [page 248]

talks about various types of roles that occur in group functioning. For instance, Benne and Sheats talk about different roles required of group members for group accomplishment. These roles include:7 – Task roles, which focus on the tasks involved in moving the group towards an outcome and include: the initiator–contributor, who proposes tasks or goals, defines the issues, and suggests new ideas or different ways of thinking about issues; the information seeker, who asks for clarification of information and suggestions, or asks for authentication of information; the opinion seeker, who asks not for clarification of information or fact, but for what the group values about a particular suggestion or option; the information giver, who offers facts or information about suggestions, and provides relevant information. This role is also referred to as the expert; the opinion giver, who gives their opinion and suggestions on ideas and options; the elaborator, who spells out suggestions in terms of examples or meanings, offers a rationale for suggestions, or tries to deduce how a particular option would work; the coordinator, who shows or clarifies the relationships among various ideas and suggestions, tries to pull ideas and suggestions together, or tries to coordinate the activities of various members or sub-groups; the orienter, who summarises what has occurred, points to departures from agreed-upon directions or goals, or raises questions about the direction which the group discussion is taking; the evaluator–critic, who uses a standard or set of standards to evaluate or question the ‘practicality’, the ‘logic’, the ‘facts’ or the ‘procedure’ of a suggestion or some other aspect of the group’s decision-making;

the energiser, who prods the group to action or decision, and attempts to stimulate or arouse the group to ‘greater’ or ‘higher quality’ activity; [page 249] the procedural technician, who expedites group movement by doing things for the group, for example, distributing materials, rearranging the seating or running the technical equipment, and so on; the process leader, who manages the negotiation process from the perspective of the team, for example, calling a time-out, reminding others of the current agenda item and where you are in the overall process;

–

the recorder, who writes down suggestions, makes a record of group decisions, or writes down the product of discussion. The recorder role is the ‘group memory’. Relationship roles, which focus on managing and sustaining the relationships between the group members, and include: the encourager, who agrees with, commends and accepts the contribution of others to indicate their understanding of other points of view, ideas and suggestions; the harmoniser, who maintains group harmony by attempting to reconcile disagreements and relieve tension; the compromiser, who may offer compromise in a conflict in which they are directly involved, or admit errors to maintain group harmony or to move the group along; the gate-keeper and expediter, who attempts to keep communication channels open by encouraging or facilitating the participation of others (‘we haven’t got the ideas of Mr X yet’), or by proposing regulation of the flow of communication (‘why don’t we

limit the length of our contributions so that everyone will have a chance to contribute?’); the standard-setter, who expresses standards for the group, or applies standards in evaluating the quality of group processes; the group-observer and commentator, who keeps records of various aspects of group process and feeds such data with proposed interpretations into the group’s evaluation of its own procedures;

–

the follower, who goes along with the movement of the group, more or less passively accepting the ideas of others, serving as an audience in group discussion and decision. Self-orientated roles, which focus on the individual rather than the group, and include: the aggressor, who may work in many ways: deflating the status of others, expressing disapproval on the values, acts [page 250] or feelings of others, attacking the group or the problem it is working on, joking aggressively, showing envy towards another’s contribution by trying to take credit for it, and so on; the blocker, who tends to be negative and resistant, disagreeing and opposing without clear reason, and attempting to maintain or bring back an issue after the group has rejected or bypassed it; the recognition-seeker, who works in various ways to call attention to themselves, whether through boasting, reporting on personal achievements, or acting in unusual ways; the self-confessor, who uses the audience opportunity (which the group setting provides) to express personal, non-group orientated ‘feeling’, ‘insight’, ‘ideology’, and so on; the playgirl/playboy, who makes a display of their lack of involvement in the group’s processes. This may take the form of

cynicism, nonchalance, horseplay and other more or less studied forms of ‘out of field’ behaviour; the dominator, who tries to assert authority or superiority in manipulating the group, or certain members of the group. This domination may take the form of flattery, asserting a superior status or right to attention, giving directions authoritatively, interrupting the contributions of others, and so on; the help-seeker, who attempts to call forth a ‘sympathy’ response from other group members or from the whole group, whether through expressions of insecurity, personal confusion or depreciation of themselves; the special-interest pleader, who speaks for the ‘small businessman’, the ‘grass roots’ community, the ‘blue collar worker’ and so on, usually cloaking their own prejudices or biases in the stereotype which best fits their individual needs. You probably recognise these roles from your own group experiences, and you may recognise that one person can perform different roles. The key to your preparation is to diagnose the group in terms of role requirements and have a clear idea of which roles are required for your particular negotiation as well as which roles will require particular strategies to deal with them. For instance, the self-orientated roles appear detrimental to effective group functioning. However, it is important to recognise that these roles will naturally occur in negotiations involving groups and serve a purpose in providing the group with important data that will be lost if these roles are suppressed. The task of a constructive negotiator is to recognise [page 251] these self-orientated roles and ask what information is available from the people who assume them — namely, what information is available about the interests, issues or alternatives that they are presenting, or what information is available about the group process. The consequences if there is no agreement. It is also vital in multiparty

negotiation to be thinking about the possible costs and consequences should the group fail to reach a negotiated agreement. To do this, you will be looking at the BATNAs (best alternatives to a negotiated agreement) of all the parties. This is where it can become somewhat tricky, as you will most likely be refining your evaluations of the other parties’ BATNAs every time a new coalition emerges. Keeping BATNAs in mind in multiparty negotiation can help to remind parties of the consequences of no agreement, and to keep the parties focused on achieving a suitable outcome. Constructing an agenda. Another technique that can greatly boost a multiparty negotiation is to set an agreed-upon agenda prior to the negotiation. Naturally, the parties would prefer to work from their own agenda, but if the parties can agree on an agenda that outlines the major issues to be addressed (which can also include the ground rules, time frame and decision-making norms of the negotiation) then, again, this can be half the work done. Remember the neutral and mutual framing rules of agenda setting and the need to be flexible. This becomes particularly important in multiparty negotiation, as it is important to keep track of issues that are linked to each other and/or issues that may be of more importance to one party over another. Framing issues as ‘how to’ questions to be tackled by the group as a whole is a particularly useful way to frame an agenda. Consider hidden agendas. Hidden agendas can block the progress of the negotiation so it is important that these be recognised and understood, preferably in the preparation stage. Ask: ‘What are the goals, interests of the parties?’ ‘What hidden or covert goals, interests might the parties have?’ ‘What are the parties’ expectations of the outcome of the negotiation?’ How the group will make decisions. The other imperative in preparing for multiparty negotiations is to consider how the group will arrive at making decisions. Will it be a unanimous consensus, majority rule, or some other form of decision-making process? Clarity about the group’s decisionmaking rules is crucial, so it is helpful if you have thought about this before you arrive at the negotiation table. [page 252]

Managing multiparty negotiations 11.4 Now that you have done your preparation and thought carefully about the above issues, it is time to think about how you will manage the actual negotiations. Multiparty negotiations involve more complexities of power, personalities and process than two-party negotiations do, and entail the parties performing more relational positioning and jockeying for attention, as well as a greater mix of strategies, styles and skills. Therefore, the need for a clear means to manage the process so that there is some order in how the negotiations proceed becomes paramount. There is a range of methods for managing the process and we set out some of these below: Appoint a chairperson. When multiple parties gather to discuss multiple issues, it is often wise to have someone to facilitate the negotiations. This person could be thought of as a ‘negotiation manager or leader’ who assumes many of the roles described above, such as preparing the group’s agenda, establishing the ground rules, assigning roles and tasks, and so on. Alternatively, the person could be a neutral third party who has no stake in the negotiation process but is present merely to chair the negotiations. Often a party who has a stake in the negotiations is unable to assume many of the roles without bias and it is therefore wise to appoint a third party. This can also help to alleviate the jockeying for the lead role in the negotiation and attempts to wrestle for control of the agenda. Appoint a facilitator or mediator. Although not unlike a neutral chairperson, you may want to appoint a trained neutral person such as a facilitator or mediator. People trained in this area can often lend a more professional air to the negotiations and may have more ability to control the process than simply a nominated or selected chairperson. Trained facilitators and mediators are particularly useful in ensuring that all participants have a voice in the proceedings, and can be helpful to elicit information gathering and sharing as well as option generation. Establish ground rules. There are a variety of ground rules that you can use to assist in the management of multiparty negotiations, ranging from how to interact with the media, if necessary, to strategies for handling a no-

agreement situation. Below are some types of ground rules that you might want to consider implementing in your negotiations: – the rights and responsibilities of the parties, including instilling a respect for conflicting points of view and perspectives, and inclusivity; – discussion guidelines, such as allowing people to speak without interruption, no side conversations and allowing reasonable ventilation of issues; [page 253] –

–

interaction with the media, which might include appointing a media spokesperson for the group and agreeing to prepare daily summaries of the negotiations for release to the press; and decision-making procedures, which might include a commitment to unanimity (which is desirable but often not possible), majority rules (which is not recommended when coalitions have formed), or agreement by consensus, where parties strive for unanimity but settle for near-complete agreement after every effort has been made to meet everyone’s interests. This is considered the better decision-making procedure as it avoids an impasse occurring if aiming to achieve nearimpossible unanimity.8

Use the agenda. The agenda is an invaluable tool for managing multiparty negotiations. Although you may have done your preparation and constructed an agenda prior to the negotiation, it is important to remember to use it — that is, remember to refer to it and restructure it where necessary as the negotiation proceeds. An agenda adds a high degree of structure to the negotiations and can be an excellent vehicle for ensuring that all parties have their say and get all their issues heard. Break into smaller working groups. When multiple parties are balancing multiple issues, it can help to break the larger group into smaller subgroups. The subgroups can work on particular items of the larger agenda, and then report their ideas and findings back to the larger group. This can help the larger group cover a lot of ground quickly and break the seemingly

complex web of issues into manageable chunks. The technique is frequently used in international multiparty negotiations.

Reducing the complexity 11.5 To some extent, the methods for managing the process that we have discussed above are ways of reducing the complexity of multiparty negotiations, but there are also other ways to do this. For instance, you might consider taking a systematic approach to the negotiation. Provided all the parties accept it, a systematic approach might include sticking to particular techniques, such as: Brainstorming. We described this technique in Chapter 4 and it can work well in multiparty negotiations to generate options that might work for the group. [page 254] Nominal group technique. Following the brainstorming process, parties create a list of options and then rank or evaluate them in terms of how well they address the issues or the interests of the parties. The negotiation manager or chairperson then collects the evaluations and the group members vote on the one that they consider to be the most effective. Delphi technique. A questionnaire is constructed which asks all parties to provide their input on the relevant issues. A nominated person collates the results and reports the results to the group. Each party then has the chance to review the report and provide additional input. This process can be repeated over a number of rounds and provides a method for the group to exchange information and perspectives. It is a relatively objective and systematic approach to the information exchange and saves a great deal of time. However, the method has its limitations in that the initial framing of the questionnaire can limit the potential for creativity and expressiveness which could result in compromise agreements. One-text procedure. The one-text procedure is another systematic method to simplify the multiparty negotiation process. After the parties have

explored all of their issues and interests, and generated some options, the facilitator or chairperson drafts a ‘text’ of the proposals and presents it to the parties as a draft for their comments. The parties may not accept or reject any part of the draft at this stage of the process; they may only provide critical comments. There are some established ground rules for this process, including that the parties are not allowed to keep, revise or amend the draft — they are only permitted to comment and must return the draft at the end of each negotiation session. The only people who can revise, delete or add to the draft are the facilitator or the chairperson who continue to revise and resubmit the draft until the parties make the decision that best reflects the parties’ interests. The advantages of this process are that it works as a barrier against parties attaching themselves to particular positions, language or proposed terms, and it allows the parties to provide critical comment without damaging the working relationships. President Carter and Secretary of State Vance are said to have used this procedure in the negotiations between the Israeli Prime Minister Begin and Egyptian President Sadat, where they created 23 drafts in 13 days before they had a proposal to which both sides agreed.9 [page 255] First agreement objective. Rather than aspiring to get a consensus on a whole single-package solution, another technique that can be used to reduce complexity in multiparty negotiations involves achieving a ‘first agreement’ that can be improved upon or revised later. By reducing the aspirational aim of consensus to a first agreement, the parties are likely to feel that the negotiation is more manageable. Sometimes it is important to get acceptance and adoption of an imperfect document, such as a set of rules or a model law, in order to create public awareness of the topic and make people more comfortable with it. The first agreement can then be renegotiated, amended, reshaped and improved upon in subsequent negotiations. The danger in this is that some parties may attach to the first agreement which may then become an anchor. However, if the ‘first agreement’ process is well

managed, it can serve as an effective method to reach high-quality outcomes. Using other social processes and forums where appropriate. Before embarking on multiparty negotiations, it is wise to establish whether there are any other processes or forums available where the parties can thrash out some of the issues involved in their negotiations, either in preparation or as a negotiation proper. There might be a public consultation process, information exchange forum or other processes available, where the parties either can formally or informally discuss the matter. These processes can often serve as a way to resolve some or all of the issues, or narrow them down. They can therefore alleviate the need for establishing a more formal negotiation process.

Understanding communication in groups 11.6 Before we move on to look at team negotiations, we would like to introduce you to a method of understanding the nature of communication in groups which is invaluable in the context of complex negotiations. Developed by Luft and Ingram, the theory is popularly known as the Johari Window (a combination of their first names) and describes how an individual experiences a group in terms of receiving and giving information.10 [page 256] Figure 11.1: The Johari Window

Quadrant 1, the ‘open’ quadrant, is where we all begin our group interactions, with information that is known to both the individual and others in the group. Characterised by free and open exchanges of information between the individual and others, this information is public and available to everyone. Sometimes called ‘the Arena’, this quadrant increases in size as the parties share more information, particularly personally relevant information, and the level of trust increases between the individuals or between an individual and the group. Quadrant 2, the ‘blind’ quadrant, contains information that the individual does not know about themselves but which the group may know. As the individual begins to participate in the group, they may not be aware of the information that they communicate to the group — namely, their verbal cues, body language, pacing, tone, and so on. These things say something about them that they may not be aware of. The people in the group learn this information from the individual’s interactions. For instance, in a team meeting, one participant, Erin, may nod approvingly and give more direct eye contact to another team member, Sareana, while frowning and looking down as the remaining team members speak. While Erin may not be aware of this behavior, the rest of the team notices. Quadrant 3, the ‘hidden’ quadrant, contains information that the individual may know about themselves but which the group does not know. They will keep these things hidden from the group for fear that if the group knew their feelings, perceptions and opinions about the group, or about the individuals in the group, they might be rejected. This is a private area, and the individual will usually withhold this [page 257] information unless encouraged to reveal it by the group process. For instance, in the same team meeting described above, Erin may secretly feel intimidated by Sareana. Erin does not want to reveal this to others, but it goes some way to explaining Erin’s unconscious behaviours toward Sareana. Quadrant 4, the ‘unknown’ quadrant, refers to things that neither the

group nor the individual knows. This unknown area can contain early childhood memories, latent potentialities, or deep-rooted needs and fears of the individuals and of the group. It is typically ‘unconscious’ or beyond the conscious awareness of the individuals. However, the group and the individual may learn about this material through exchange and feedback, and the internal boundaries of the quadrant can change depending on the amount of feedback sought and received. For instance, Sareana may unconsciously discount Erin’s affirmations because a former colleague behaved the same way in order to curry favour with Sareana. Neither Sareana, Erin nor the rest of the team recognise the difference in, or underlying reason for, the dynamic between the two team members. You can see from this explanation that a change in one quadrant will affect all the other quadrants. We might start with a small quadrant 1 but, as information is exchanged, self-disclosures made, and feedback received and given, the hidden, unknown and blind quadrants will decrease and quadrant 1 will increase. In groups in which quadrant 1 is large, people trust each other and feel more inclined to use their resources and skills freely on behalf of the group. According to the Johari Window, miscommunication and misperception occurs mostly in groups where quadrant 1 is limited; namely, when ritualised behaviours continue, information sharing and feedback is restricted, and there is little opportunity to create value in the negotiations. A constructive multiparty negotiator, therefore, will be aware of these communication patterns, and will work hard with their questioning and listening skills to open quadrant 1 — the greater the openness, the greater the group understandings and productivity are likely to be.

Team negotiations 11.7 The same complex communication and relationship patterns are likely to occur in team negotiations. We can think of team negotiations in two ways. First, we can think of team negotiations internally — that is, the dynamics that play out within a group of people who have come together for a coordinated purpose, such as groups of employees who are brought together to perform specific functions within a company. Second, we

[page 258] can think of team negotiations externally — that is, where one team is negotiating with another, each representing different parties, such as when two companies bring teams of negotiators together to work through a complex merger. In either case, negotiating in teams adds another layer of complexity to an already complicated process, depending on the type of team that has been assembled. Colquitt, LePine and Wesson11 identify five types of teams, each of which has particular characteristics: Work teams are designed to be relatively permanent. Their purpose is ‘to produce goods or provide services, and they generally require a full-time commitment from their members’.12 Examples of work teams include sales teams, production teams, maintenance teams, and the like. Because they are long-lasting and involve a substantial level of commitment, work teams tend to develop their own internal cultures, behavioural norms and relational dynamics. These factors shape the way team members interact and negotiate with one another. Management teams are similar to work teams since they, too, tend to be long-lasting. They do, however, have some distinctive characteristics: they tend to focus on managerial decisions that have broad organisational scope and impact; they tend to be comprised of senior leaders within organisations, each of whom have spans of authority that intersect with other team members’ areas of authority; and rather than measuring success in terms of specific production or task outputs, they tend to focus on strategic decisions and coordination. Parallel teams are formed in order to assess and recommend management actions related to important issues based on input from multiple perspectives and functional areas. They last as long as needed to achieve the task, and often do not require a high level of commitment. Examples of parallel teams include quality circles, and deciding on certain organisational purchases and services. By definition, parallel teams are populated by members who bring different interests and priorities, requiring a high degree of integration in order to reach consensus.

Project teams are formed to address complex ‘one time’ tasks that require input from participants with a wide range of knowledge and expertise. Depending on the magnitude of a task, some participants might devote all their efforts for the duration of a project. Examples include designing and constructing a large office building or installing a regional computer network. Similar to parallel teams, project teams [page 259] require a high degree of coordination while reconciling competing interests and priorities. Action teams perform tasks that are very complex, sometimes involving high stakes and yet can be quite limited in duration. Examples include surgical teams, astronauts and aircraft crews.13 One characteristic that distinguishes team negotiations from multiparty negotiations is the overarching, often explicit, common purpose and interests that bring teams together. Many teams are internal, where every participant ultimately works for the same organisation. Imagine you are a structural engineer on a building project. Your primary focus is on the structural strength and integrity of the building. The project architect may also care about engineering considerations, but probably has a stronger concern for the aesthetics and functionality of the building. The project manager shares both your concerns but is intensely focused on keeping the project on schedule and under budget. Your interests (structural integrity) can conflict with the architect’s interests (aesthetics and functionality) and even with the project manager’s interests (speed and cost containment). At the same time, you all share an overarching common interest in the successful completion of the project. This is quite different from a multiparty negotiation where each participant in the negotiation represents independent parties who are looking out for their own interests, even if they come at the expense of others. 11.8 The second way we can think of team negotiations is in terms of formal negotiations between different parties. Rather than parties each sending one person to represent them at the negotiation table, they might assemble a

coordinated group of people — the ‘team’ — to represent them in the negotiation. Internally, a negotiation team is a form of ‘project team’. However, there is also an external negotiation dimension: to prepare for, support and engage in a negotiation with another party. There are clear opportunities (and challenges) involved in negotiating in teams, and if you have a choice of whether to negotiate as a team or as an individual then you will want to consider these. For example, research tells us that teams are able to handle more information more accurately than individuals, but it also tells us that teams are sometimes more competitive than individuals.14 Weighing up the pros and cons of team negotiating is an important first step in preparing to negotiate as a team. [page 260]

Opportunities 11.9 As discussed, the research suggests that teams are able to handle more information more accurately more of the time. Some other opportunities available in negotiating in teams include the following: Division of labour. As we described in Chapter 1, negotiation involves hard work and can be cognitively taxing. The use of teams allows for a division of labour and a combination of skills, not to mention extra capacity to evaluate options, track concession-making, remember details, and handle complex issues and interests. Functional diversity. Teams can provide the functional diversity of roles as discussed in 11.3. Functional roles in a team include task and relationship experts, strategic as well as tactical thinkers, detail people and rapport builders, observers, recorders and procedure technicians. Integrative agreements are more likely. The tendency is for teams to exchange more information; therefore, there is more likelihood of mutual gains and better-quality deals when at least one of the parties is a team. Perception of more power. Research has shown that people perceive teams as having more power than individuals do — in this way, teams can

exert more control over individuals.15 Therefore, if you are an individual facing a negotiating team, you will need to test your assumptions about team power (see the discussion on intra-team conflict below at 11.9) and remain alert to conceding value and control based purely on this perception. Greater access to information and networks. The more negotiators that are on a team, the greater the network and the better the access the team has to information and potential allies. The network could supply the negotiating team with information about the interests, alternatives, possible strategy or negotiating skill of the other party, or could supply the team with expert help or support to enhance its negotiating capacity. The more relationships, the more ability to establish trust. The more team members that are at the table, the more opportunity to develop relationships with the other party, the greater the likelihood of there being shared interests among the members and the ability to establish trust. This, in turn, could lead to a greater desire between the parties to share information and thus a better prospect of achieving quality solutions. [page 261] Less accountability pressure. Team members tend to experience lower accountability pressures than individual negotiators, as the accountability to constituents is distributed and diffused amongst the members of the team.16 Dispersing the pressure for the outcome of the negotiation among the team members can help the team balance the need to get the most out of the deal while still ensuring that it reaches a mutually beneficial solution.

Risks 11.10 However, for every opportunity in team negotiating, there is also a risk. For instance, although team members might perceive less accountability pressure and, therefore, may be more able to balance competing needs, less accountability may also lead to less energy and a reduced desire to work hard in the negotiation. We detail more of these ‘flip side’ risks below: Inability to integrate. When constructing your team, you may have

assembled a team of very smart negotiators with the right combination of skills and role functions, but the team might not gel as a group. This could lead to intra-team conflict or competition, or even fracture of the group as a whole. Conflicting interests. Similarly, simply because people are working as part of a team doesn’t necessarily mean that they will put aside their own interests. Sometimes these interests may conflict with the interests of the group or with another team member’s interests — again, this can lead to intra-team conflict or fracture. Free riders. As discussed above, a lack of accountability can lead to reduced effort, and research shows that groups larger than four can sometimes suffer from ‘free rider’ problems.17 Free riders are those team members who use the cover of the group to reduce their efforts. More relationship complexity. Refer to the relationship table (Table 11.1) above. The more people, the more relationships and, accordingly, the more potential for conflict. Can be costly. Team negotiations can be costly in terms of time, money and effort if not coordinated well. Even if coordinated well, the costs of personnel and the time required to coordinate the team can disadvantage the negotiation. The risks outlined above may cause you to question the use of teams in negotiating. However, as with bilateral negotiation, being aware of the risks and preparing sufficiently for team negotiations can increase your potential to [page 262] benefit from them. For instance, you can stem intra-team conflict by having clear decision-making rules, similar to those of multiparty negotiations, or by appointing a team facilitator. Being clear on team roles is another important preparation tool. Essentially, by applying the same constructive negotiation skills that we have described in this chapter and throughout the book, you can learn to minimise the risks involved in team negotiating and maximise the opportunities.

Summary 11.11 In this chapter, we have described the complex nature of negotiations when multiple parties, multiple issues or negotiating teams are involved. We have described five types of complexity in multiparty negotiations: numeric complexity, information and computational complexity, social complexity, procedural complexity and strategic complexity. We have also explained how the complexity arises from the relationships that form and re-form between the parties, and because of the formation of coalitions. We discussed five relationship types in negotiations — primary party, cooperative, noncooperative, third-party and supporting primary party — and showed how the relationship constellations can be fluid and grow exponentially as the number of parties grows. Next, we described the importance of preparation for multiparty negotiations and suggested that you consider coalition behaviours, the roles that the various group members might take, and how the group will make decisions. We also discussed ways of managing multiparty negotiations, including appointing a chairperson (which might be a facilitator or mediator), establishing ground rules, using the agenda, and breaking into smaller groups. This led to further techniques to simplify the complexity of multiparty negotiations, including brainstorming, the nominal group technique, the Delphi technique, one-text procedure, first agreement objective and using other processes or forums where available. We then outlined one way of understanding communication in groups known as the Johari Window. This model emphasises the importance of appreciating open, hidden, blind and unknown types of information, and of creating ways to open the communication for greater productivity. In the final section of the chapter, we considered two ways to understand team negotiations. We discussed five types of internal teams: work teams, management teams, parallel teams, project teams and action teams. We also discussed negotiation teams and focused on the opportunities and risks that are involved in negotiating in teams. We concluded by emphasising that if you become proficient at the constructive negotiation skills that we have outlined

throughout this book, these will hold you in good stead for negotiating even the most complex negotiation. [page 263]

Key negotiating points 11.12

The key negotiating points covered in this chapter are listed below:

Make the complex simple. A constructive negotiator can simplify complex negotiations by preparing well, using group management skills, employing good communication skills, and by taking a systematic approach to the negotiations. Prepare, prepare, prepare. Be aware of the way that an increased number of parties leads to an increased number of relationships and, consequently, increased complexity. Prepare your strategies accordingly. Manage the process. Appoint a chairperson, consider a facilitator or mediator, establish clear ground rules, and use the agenda to ensure that the process flows smoothly. Process management becomes crucial in multiparty negotiations. Open up quadrant 1. Use your questioning, listening and feedback skills to open up the communication channels in the group. By unearthing hidden, blind and unknown information, the negotiation can flow freely and the parties will build trust and goodwill between them. Select teams strategically. Choose negotiating teams using a systematic approach such as the DISC model, discussed in Chapter 7. This will maximise the opportunities that teams offer in negotiation settings, and minimise the risks.

___________________________ 1.

V Valle Jr, Chaos, Complexity and Deterrence, Report No A729234, National Defense University, Washington DC, 2000.

2. 3.

See L Crump, ‘Multiparty Negotiation: What Is It?’ (2006) 8(7) ADRB 125 at 127. R Lewicki, B Barry and D Saunders, Negotiation, 6th ed, McGraw-Hill, New York, 2010.

4.

Adapted from W Kephart, ‘A Quantitative Analysis of Intragroup Relationships’ (1950) 55(6) American Journal of Sociology 544–9 at 548. See Chapter 5 at 5.3.

5. 6. 7.

P Block cited in Lewicki, Barry and Saunders, note 3 above, at 372. K Benne and P Sheats, ‘Functional Roles of Group Members’ (1948) 4(2) Journal of Social Issues 41– 9.

8.

L Susskind, ‘Winning and Blocking Coalitions: Bring Both to a Crowded Table’ (2004) 7(1) Harvard Negotiation Newsletter 4–6. I Tyler-Wood, C Smith and C Barker, ‘Three Models for Implementing Change in 21st Century

9.

Schools’ (2003) 4 (May) The Negotiator Magazine available at (viewed 22 June 2015). 10. R Napier and M Gershenfeld, Groups: Theory and Experience, 4th ed, Houghton Mifflin, Boston MA, 1987. 11. J Colquitt, J LePine and M Wesson, Organizational Behavior: Improving Performance and Commitment in the Workplace, 3rd ed, McGraw Hill, New York, 2013. 12. Colquitt, LePine and Wesson, note 11 above. 13. Colquitt, Lepine and Wesson, note 11 above. 14. D Sally and K O’Connor, ‘Negotiating in Teams’ in A Kupfer Schneider and C Honeyman (eds), The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator, ABA Section of Dispute Resolution, Washington DC, 2006, at 547; D McCallum cited in Lewicki, Barry and Saunders, note 3 above, at 400. 15. J Polzer cited in Lewicki, Barry and Saunders, note 3 above, at 401. 16. K O’Connor cited in Lewicki, Barry and Saunders, note 3 above, at 401. 17. B Latané cited in Sally and O’Connor, note 14 above, at 547.

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CHAPTER

12

Ten principles for constructive negotiators Introduction Factors leading to an unsuccessful negotiation Successful constructive negotiating

Objectives of this chapter Recognise the multi-dimensional and evolutionary nature of negotiation, and identify some places where it can go wrong Examine the ten principles for constructive negotiators Identify your strengths and weaknesses as a constructive negotiator Provide a take-away mental checklist to improve your negotiating skills

Introduction 12.1 This book has focused on constructive negotiation and its accompanying strategies, styles and skills. We set out to provide negotiators with a guide to the range of different approaches to negotiation and to impart information to assist negotiators to improve their negotiation abilities. Now, to conclude, we provide a reflective chapter that summarises the information in this book and serves as a constructive negotiator’s checklist.

At the beginning of the book, we introduced the concept of the multidimensional and evolutionary nature of negotiation. Further, we aimed to [page 266] reconcile some of the ambiguities and paradoxes of negotiation and suggested that working through the book would involve a process of reflexivity, action and adaptation. We promoted the idea of flexibility in that it would enable the development of different styles of constructive negotiation practice to suit the particular context. Finally, we discussed the importance of building awareness — of self, other and context, as a way to become better attuned to the negotiation process as it unfolds.

Factors leading to an unsuccessful negotiation 12.2 We begin now with a list of ten significant factors that contribute to unsuccessful negotiations before we list the factors that contribute to successful negotiations. Some of the unsuccessful factors Goldberg1 identified in 1992 and they still apply today. Other factors, and some modifications of Goldberg’s factors, have come from the wisdom of other experienced negotiators, social scientists and teachers. These factors include a failure to: 1. 2. 3. 4. 5.

6. 7. 8.

adequately prepare (see Chapter 5); effectively communicate (see Chapter 6); work with, rather than against, one’s emotions (see Chapter 8); adjust to one’s cognitive biases and take account of extrinsic factors (see Chapters 1, 4 and 8); explore interests and options fully before leaping to solutions (failure to reconcile different perceptions of issues, to unearth hidden interests and/or to suspend judgment on options) (see Chapters 3 and 4); walk away when it is not suitable to negotiate (see Chapters 1, 3 and 4); reconcile different attitudes to risk (see Chapters 5, 8 and 11); reconcile different attitudes towards the desirability of agreement (see

Chapters 4 and 5); 9.

appreciate when you are just as powerful as they are (see Chapter 7); and 10. be aware of and reflect on previous negotiation experiences, both good and bad (see Chapters 1 and 4). This list is useful in that it provides a check for areas where blockages might occur in negotiations and could be useful to identify the areas that negotiators might need to work on when preparing to negotiate, and when negotiating. [page 267]

Successful constructive negotiating 12.3 The following ten guiding principles encapsulate the vast amount of information contained in this book. The principles for successful constructive negotiation are: 1. Prepare! Prepare! Prepare! 2. Be firm, friendly, flexible and fair 3. Listen with four ears and speak with four tongues 4. Use multiple intelligences and develop fluency 5. There is great power in knowing that there is a suitable walk-away alternative available 6. What goes around, comes around — negotiate ethically 7. Remember the art/be artful — remember the science/be scientific 8. Be mindful. Be curious 9. Balance paradoxes and polarities 10. Use each negotiation as a better model for the next

Prepare! Prepare! Prepare! 12.4 It is clear that the more prepared negotiators are, the better the negotiations will go. Although negotiators can never fully prepare for every

contingency, the quality and extent of their preparation will often determine the success of the negotiations. Good preparation involves the following: Naming and framing. Name, frame and reframe if necessary to keep the negotiation neutral, mutual and open. Interests. Identify the people, what they want and, most importantly, why they want it. Communication. Prepare to send four-in-one messages and have intention match impact. Prepare to be an active listener. Independent criteria. Find a point of reference to use to persuade the other negotiator that your ideas are fair. Options. Get creative and scientific in developing ways to solve the issue(s). AABs. What are the alternatives, aspiration levels and bottom lines of the negotiators and contemplate how best to use them. People and power. Discover differences in power and style and develop ways to use the differences to create value. Risks. Be aware of the risks and opportunities involved in the chosen strategies. [page 268] Emotions. Check your emotions and what you might need to prepare for ‘heat of the moment’ negotiating. AAAA. Prepare to be a constructive negotiator — Awareness, Attitude, Alertness and Accountability (be aware, be positive, be alert and be accountable).

Be firm, friendly, flexible and fair 12.5 Constructive negotiators are friendly and tough. They are firm on their interests and alternatives, and flexible on options. They use their strengths and strengthen their weaknesses. They blend and balance to get more of what they want, but not at the expense of their negotiating

counterpart. They are aware that a vengeful negotiator is not someone who they want waiting for them post-negotiation. They are fair on process and friendly on the people. They recognise that a reputation of ‘firm, friendly, flexible and fair’ is far preferable to a reputation of ‘tough, devious and stubborn’.

Listen with four ears and speak with four tongues 12.6 Constructive negotiators will be finely tuned to listening for the fourin-one messages for congruence and incongruence and to speak mindfully with not one but four tongues. Constructive negotiators will be using ACTIVE listening skills to garner the underlying meanings in the messages that the other negotiator is sending, and to attune their responses to those meanings. Nothing feels better than the sense of attunement — and four ears are better for this than one.

Use multiple intelligences and develop fluency 12.7 Using multiple intelligences and developing cultural, gender and intersectional fluency can quickly enable negotiators to recognise and respond appropriately when things are going wrong (or well). Constructive negotiators will work with all aspects of themselves to open up to a greater capacity to problem-solve and be creative, to have greater levels of empathy and selfawareness, and to find better ways to unearth and explore interests, open and close negotiations, and identify and work with difference.

Power is the power to use your alternatives and walk away 12.8 In Chapter 7, we listed many sources of power. We also discussed the power of the walk-away alternatives. If negotiators do not reach agreement, then they will most likely turn to their alternatives. Therefore, being vigilant and constantly cross-checking the progress of the negotiation against the available alternatives is paramount. There is power in knowing that there is a perfectly good alternative waiting should the negotiation come uncomfortably close to you best alternative.

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What goes around, comes around: negotiate ethically 12.9 Just as ideas beget ideas, trust begets trust and distrust begets distrust, ethical negotiations beget ethical negotiations (and unethical negotiations beget unethical ones). Constructive negotiators will be aware of their reputation and alert to matters of personal integrity and professional ethics. Constructive negotiators know that if they negotiate ethically, not only are they likely to enjoy more successful negotiations than unsuccessful ones, but they are also likely to feel more clear about their values and better about themselves.

Remember the art/be artful: remember the science/be scientific 12.10 Being artful does not mean being cunning or devious; it means being creative, spontaneous and curious. Being scientific does not mean being methodical, systematic and controlled; it means being knowledgeable, prepared and aware. Balancing the art and science of negotiation means learning to ‘dance’ through the four constructive negotiation stages with a fluid step and a personal style. It involves learning ways to identify patterns and interests, and to reconcile difference creatively. It means remembering that the science of negotiation lies in understanding self and other, understanding the principles and process of negotiation, understanding how the brain functions and how emotions influence negotiations. It involves knowing how the various strategies, styles and skills of negotiation combine to work together.

Be mindful. Be curious 12.11 Asking questions and listening carefully to understand the other party can be powerful. Likewise, it is powerful to know yourself and understand how you are likely to respond or react to the other — that is, know what your interests, options and alternatives are; know your conflict resolution and

behavioural styles; know your levels of intelligence, and your strengths and weaknesses; and know your emotional blockages and triggers. Constructive negotiators will be constantly mindful and constantly curious.

Balance paradoxes and polarities 12.12 In the list below, we set out some of negotiation’s great paradoxes and polarities. Effective negotiators will recognise these, will respect them, monitor how they manage them, and understand their choices for dealing with them. 1.

Claiming value and creating value. This is the paradox of constructive negotiation. It involves a balance of positional and [page 270]

2.

3.

4.

interest-based negotiation strategies, and a mix of competitive and cooperative styles. Although the two strategies and styles might appear as polarities, in practice their dichotomous nature disappears. Being prepared to be unprepared. It is important to be prepared, but not so much that you lose spontaneity and curiosity. Because so much of constructive negotiation involves communication, intuition and emotion it is important to prepare to be unprepared. Making assumptions but not relying on them. Being prepared means considering what might be happening for the other negotiating party — what their interests, alternatives and options might be, and what strategy, style and skill they might use. In this sense, prepared negotiators will need to make certain assumptions. However, relying on assumptions can lead negotiators astray if they do not check the validity of their conjectures. It is important to make assumptions, but successful negotiators will be aware of what assumptions they have made, will check the legitimacy of the assumptions and will be open to being wrong. Knowing how to use power and how to exploit the other party’s

5.

6.

7.

power but not doing so. Power is relational, fluid and influenced by perception. Therefore, it does not always play out in the way that one thinks it might. Excellent negotiators will be aware that they have power and that they can exploit power, but they will not often do so. In this way they retain their ability to see beyond power to the creative and constructive solutions that are likely to be available. Knowing to be unknowing. Once negotiators think they know something, they may not. Always be alert to change and constantly check understanding. Showing care, but not caring too much. By caring too much, negotiators can lose the opportunity to find solutions that meet their own interests. On the other hand, if negotiators don’t care enough then the other negotiator will most likely perceive them as taking a competitive stance and will probably clam up or compete in response. Balancing the level of caring is a fundamental negotiator’s dilemma that requires awareness of all aspects of the negotiation. Being closed but open. If negotiators are completely open, they run the risk of the other party taking advantage of them. If they are completely closed, then they run the risk of missing important information, perspectives and insights that can lead to improved outcomes. They also risk acquiring a reputation for being stubborn and/or deceptive. Reconciling this paradox depends largely on trust. As each negotiation is usually an evolving process, and trust, mistrust, caring and sharing are all things that can change throughout the negotiation, remaining attentive is the key to building successful negotiations. [page 271]

8.

Managing distrust while building trust. Sometimes the only way to manage distrust is to build trust, but negotiators may not always have the time to do this. Again, knowing when to trust and how to build trust are issues that will confront negotiators with each new negotiation. Being alert to this challenge and monitoring their skills will help negotiators

develop their own approach to this dilemma. 9. Positional bargaining over interest-based issues. Sometimes the only way to overcome conflict over interest-based issues is to use positional tactics. When faced with issues that are difficult to resolve, negotiators might sometimes need to use walk-away, bottom-line, deadline or other hardball tactics. Negotiators need to remain adaptable. 10. Negotiating when you don’t know that you are negotiating. We do not always know when we are negotiating. Because negotiation is an innate human process, it can often be something that we do mindlessly. Therefore, reminding ourselves that we are negotiating and being mindful when we negotiate is a good start to becoming a constructive negotiator.

Use each negotiation as a better model for the next 12.13 We have outlined the basic strategies, styles and skills that are involved in engaging in successful constructive negotiations. Negotiation involves a lifetime of learning. Constructive negotiators will critically reflect upon their negotiation experiences to ascertain how they can use each negotiation as a better model for the next. To this end, we have provided examples of successful constructive negotiations throughout the book. We have discussed ways of getting good deals that are sustainable and durable for all the negotiating parties. We have explored negotiations where parties reach an outcome that they can live with in relation to substantive, relational, process and principle needs. Finally, we have provided a framework for reflective — and reflexive — practice. We hope that throughout this book we have equipped you with the knowledge, strategies and awareness to develop and refine your own constructive approach to negotiation. ___________________________ 1.

S Goldberg, F Sander and N Rogers, Dispute Resolution, Little Brown and Co, Boston MA, 1992.

Useful books J Allen, P Fonagy and A Bateman, Mentalizing in Clinical Practice, American Psychiatric Publishing, Arlington VA, 2008. D Ariely, Predictably Irrational: The Hidden Forces that Shape our Decisions, Harper Perennial, New York, 2010. S Baron-Cohen, H Tager-Flusberg and D J Cohen (eds), Understanding Other Minds: Perspectives from Developmental Cognitive Neuroscience, 2nd ed, Oxford University Press, New York, 2000. M Bazerman, Judgment in Managerial Decision Making, 3rd ed, Wiley and Sons, New York, 1994. J Breslin and J Rubin (eds), Negotiation Theory and Practice, Program on Negotiation, Massachusetts, 1993. R A Bush and J Folger, The Promise of Mediation: The Transformative Approach to Conflict, Josse Bass, San Francisco, 2005. H Calero and B Oskam, Negotiate For What You Want: Talking Your Way to Success in Business Affairs and Personal Encounters, Thorsons Publishing Group, Northamptonshire, 1988. D Cartwright (ed), Studies in Social Power, University of Michigan Press, Ann Arbor MI, 1959. H Chamoun-Nicolás in collaboration with R Hazlett, Negotiate Like a Phonenician: Discover Tradeables, Key Negotiations, Kingwood TX, 2007. J Colquitt, J Lepine and M Wesson, Organizational Behavior: Improving Performance and Commitment in the Workplace, 3rd ed, McGraw Hill, New York, 2013. G Cory and R Gardner, The Evolutionary Neuroethology of Paul MacLean:

Convergences and Frontiers, Basic Books, New York, 2002. E de Bono, Serious Creativity: Using The Power of Lateral Thinking to Create New Ideas, HarperBusiness, New York, 1992. N Doidge, The Brain That Changes Itself, Scribe Publications, Melbourne, 2008. N Ebner, J Coben and C Honeyman (eds), Assessing our Students, Assessing Ourselves: Volume Three in the Rethinking Negotiation Teaching Series, DRI Press, St Paul MN, 2012. R Fells, Effective Negotiation: From Research to Results, Cambridge University Press, Cambridge, 2010. R Fisher, W Ury and B Patton, Getting to Yes: Negotiating Agreement Without Giving In, 2nd ed, Penguin, New York, 1991. J Folger, M Poole and R Stutman, Working Through Conflict: Strategies for Relationships, Groups and Organizations, 6th ed, Pearson, Boston, 2009. H Gardner, Frames of Mind: The Theory of Multiple Intelligences, Basic Books, New York, 1983; 10th anniversary ed, Basic Books, New York, 1993. H Gardner, Intelligence Reframed: Multiple Intelligences for the 21st Century, Basic Books, New York, 1999. A Goldman, Simulating Minds: The Philosophy, Psychology and Neuroscience of Mindreading, Oxford University Press, New York, 2006. D Goleman, Social Intelligence: The New Science of Social Relationships, Arrow Books, New York, 2007. G Goodpaster, A Guide to Negotiation and Mediation, Transnational Publishers, New York, 1997. J Grinder and R Bandler, The Structure of Magic II, Science and Behaviour Books, Palo Alto, California, 1976. R Guder (ed), Negotiating Techniques: How to Work Toward a Constructive Agreement, The Economics Press, Fairfield NJ, 1985. L Hall (ed), Negotiation: Strategies for Mutual Gain — The Basic Seminar of the Program on Negotiation at Harvard Law School, Sage Publications, London, 1993.

J Hammond, R Keeney and H Raiffa, Smart Choices: A Practical Guide to Making Better Decisions, Harvard Business School Press, Cambridge MA, 1999. C Honeyman, J Coben and G DePalo (eds), Rethinking Negotiation Teaching: Innovations for Context and Culture, DRI Press, St Paul MN, 2009. C Honeyman, J Coben and G DePalo (eds), Venturing Beyond the Classroom: Volume Two in the Rethinking Negotiation Teaching Series, DRI Press, St Paul MN, 2010. C Honeyman, J Coben and A Wei-Min Lee (eds), Educating Negotiators for a Connected World: Volume Four in the Rethinking Negotiation Teaching Series, DRI Press, St Paul MN, 2013. C Karrass, The Negotiating Game: How to Get What You Want, Thomas Y Crowell Publishers, New York, 1970. G Karrass, Negotiate to Close: How to Make More Successful Deals, Collins, London, 1985. D Kolb and J Williams, The Shadow Negotiation: How Women Can Master the Hidden Agendas that Determine Bargaining Success, Simon and Schuster, New York, 2000. R Korobkin, Negotiation Theory and Strategy, Aspen Law and Business, New York, 2002. A Kupfer Schneider and C Honeyman (eds), The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator, ABA Section of Dispute Resolution, Washington DC, 2006. D Lax and J Sebenius, The Manager as Negotiator: Bargaining for Cooperation and Competitive Gain, The Free Press, New York, 1986. M LeBaron, Bridging Cultural Conflicts: New Approaches for a Changing World, Jossey-Bass, San Francisco, 2003. R Lewicki, B Barry and D Saunders, Essentials of Negotiation, 4th ed, McGraw-Hill Irwin, Boston MA, 2007. R Lewicki, B Barry and D Saunders, Negotiation, 6th ed, McGraw-Hill, New York, 2010.

R Lewicki, B Barry and D Saunders, Negotiation: Readings, Exercises and Cases, McGraw-Hill Irwin, New York: 5th ed, 2007; 6th ed, 2010. D Lieberman, Make Peace With Anyone: Breakthrough Strategies to Quickly End Any Conflict, Feud, or Estrangement, St Martins Press, New York, 2002. P Maclean, The Triune Brain in Evolution: Role in Paleocerebral Functions, Plenum Press, New York, 1990. B Mayer, The Dynamics of Conflict Resolution: A Practitioners Guide, Jossey-Bass, San Francisco, 2000. J Mezirow, Fostering Critical Reflection in Adulthood, Jossey-Bass, San Francisco, 1990. C Moore, The Mediation Process: Practical Strategies for Resolving Conflict, 3rd ed, Jossey-Bass, San Francisco, 2003. J Mulholland, The Language of Negotiation: A Handbook of Practical Strategies for Improving Communication, Routledge, London and New York, 1991. D Pruitt and J Rubin, Social Conflict: Escalation, Stalemate and Settlement, Random House, New York, 1986. G Robinson, Did I Ever Tell you About The Time …: How To Develop And Deliver a Speech Using Stories That Get Your Message Across, McGraw-Hill, San Francisco, 2000. G R Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable People, Penguin, New York, 1999. N Spegel, B Rogers and R Buckley, Negotiation: Theory and Techniques, Butterworths, Sydney, 1998. L Thompson, The Mind and Heart of the Negotiator, Prentice Hall, Upper Saddle River NJ, 1998. G Tillet, Resolving Conflict: a Practical Approach, Sydney University Press, Sydney, 1991. G Tillet and B French, Resolving Conflict, 4th ed, Oxford University Press, South Melbourne, 2010. W Ury, Getting Past No: Negotiating Your Way from Confrontation to Cooperation,

Bantam Books, New York, 1993. R Wenke, The Art of Negotiation for Lawyers, Richter Publications, Long Beach CA, 1985. G Williams, Legal Negotiation and Settlement, West Publishing Co, St Paul MN, 1983. R Winston, The Human Mind, Bantam Books, Sydney, 2003.

Index References are to paragraphs Accountability team negotiations …. 11.9, 11.10 Active listening attentive body language …. 6.10 consciously developed …. 6.11 physical pacing …. 6.12 benefits for negotiators …. 6.8 clarifying questions …. 6.13 empathy …. 6.17 main techniques …. 6.9, 6.19 open-ended inquiries …. 6.15 overview …. 6.3, 6.6, 6.8, 6.19, 6.23, 6.24 summarising …. 6.18 time out …. 6.14 verbal followers …. 6.16 verbal pacing …. 6.16 Adversarial negotiation overview …. 2.2, 2.5, 2.6 zero-sum game …. 2.2, 2.5, 2.23 Agendas development of agenda …. 4.27

framing agenda items …. 4.27 multiparty negotiations …. 11.4 overview …. 4.27 probing hidden agenda …. 4.28 setting an agenda …. 4.27 Agreements documenting …. 4.42 overview …. 4.8, 4.41 review process …. 4.41 testing the proposal …. 4.41 Alliances and coalitions coalition behaviour …. 11.3 source of power, as …. 7.8 Alternatives to negotiation BATNA …. 3.3, 5.3, 5.12 source of power, as …. 7.8 successful negotiations …. 12.8 interest-based negotiation …. 3.1, 3.3, 4.34, 4.35 MLATNA …. 3.3, 5.3, 5.12 Negotiation Navigation Map …. 5.3, 5.12 options …. 3.4 evaluation of options …. 4.34, 4.35 overview …. 3.3, 4.34 successful negotiations …. 12.8 WATNA …. 3.3, 5.3, 5.12 Anchoring …. 2.19 Anchoring trap …. 10.9 Assertions as fact …. 10.3 Australian Consumer Law …. 10.7

Awareness …. 1.15, 2.16, 6.1, 7.9, 7.10 Balance of power …. 7.9 Baseline trap …. 10.9 BATNA Negotiation Navigation Map …. 5.3, 5.12 overview …. 3.3 source of power, as …. 7.8 successful negotiations …. 12.8 Behaviour bundles …. 2.18 Behavioural styles DISC model …. 7.6 emotional intelligence …. 7.12 negotiation styles …. 1.10, 7.6 overview …. 1.10, 7.6 Best alternative to a negotiated agreement see BATNA Bilateral negotiations …. 11.2 Bluffing …. 10.3 Brain functions amygdala …. 8.3, 8.6, 8.7, 8.12 conflict, and …. 8.2 culture, and …. 9.2 data inputs …. 8.3 decision-making, and …. 8.6, 8.7, 8.15 development of new skills …. 8.15 emotional brain …. 8.3, 8.5 amygdala …. 8.3, 8.6, 8.7, 8.12 decision-making …. 8.6 flight or fight responses …. 8.3, 8.6

physical responses …. 8.6 rational thinking …. 8.6 recalling information …. 8.5 storytelling …. 8.5 flight or fight responses …. 8.3, 8.6 immediate memory …. 8.4 lizard brain …. 8.3 long-term memory …. 8.4, 8.5 memory …. 8.4 overview …. 8.1, 8.2, 8.15, 8.16 plasticity …. 8.15 rational brain …. 8.3, 8.6 rational thinking …. 8.6 self-changing brain …. 8.15 sex and gender …. 9.10 short-term memory …. 8.4 storytelling …. 8.5 Brainstorming …. 3.1, 3.5, 4.33, 11.5 Chairperson multiparty negotiations …. 11.4 Chaos theory …. 11.1 Closed questions …. 6.22 Closing tactics competitive style …. 4.37 cooperative style …. 4.38 overview …. 4.36, 4.38 Coalitions multiparty negotiations …. 11.2, 11.3

reasons for forming …. 11.3 source of power, as …. 7.8 Codes of conduct hardball tactics, and …. 10.6, 10.7 Coercive power …. 7.8 Communication active listening …. 6.3, 6.6, 6.8, 6.19, 6.23, 6.24 attentive body language …. 6.10–6.12 benefits for negotiators …. 6.8 clarifying questions …. 6.13 empathy …. 6.17 main techniques …. 6.9, 6.19 open-ended inquiries …. 6.15 summarising …. 6.18 time out …. 6.14 verbal followers …. 6.16 verbal pacing …. 6.16 awareness …. 6.1 closed questions …. 6.22 constructive words …. 6.21 cultural dimensions …. 9.2 double-barrelled questions …. 6.22 explicit messages …. 6.5 four listening ears …. 6.7, 6.23, 12.6 four meanings in a message …. 6.4, 6.23, 6.24 explicit messages …. 6.5 four listening ears …. 6.7 implicit messages …. 6.5

information …. 6.4 receiving the message …. 6.6 relationship …. 6.4 request …. 6.4 self-disclosure …. 6.4 framing …. 6.21 group communications …. 11.6, 11.11 hypothetical questions …. 6.22 implicit messages …. 6.5 interest-based negotiators …. 3.9 key negotiating points …. 6.24 leading questions …. 6.22 listening skills …. 6.6, 6.7 four listening ears …. 6.7, 6.23 memory …. 8.4 modes of communication …. 6.3, 6.5 non-verbal signals …. 6.2, 6.5 overview …. 5.9, 6.1, 6.2, 6.20, 6.23, 6.24 positional information …. 4.25 priority information …. 4.24, 4.25 questions …. 6.22, 6.24 receiving the message …. 6.6, 6.24 reframing …. 6.21 ritualistic questions …. 6.22 sender–receiver model …. 6.3, 6.23, 6.24 sex and gender …. 9.10, 9.11 specific questions …. 6.22 value-laden questions …. 6.22 Communication medium …. 5.30

Competing interests independent criteria …. 3.6 Competitive style characteristics …. 2.18 closing tactics …. 4.37, 4.38 overview …. 1.10, 2.18, 3.7, 3.8, 4.7 positional negotiators …. 2.18, 2.23, 3.8, 3.14 tactics …. 3.9 closing tactics …. 4.37, 4.38 Complex negotiations chaos theory, and …. 11.1 group communications …. 11.6, 11.11 key negotiating points …. 11.12 multiparty negotiations …. 11.1, 11.2, 11.11, 11.12 agendas …. 11.4 coalitions …. 11.2, 11.3 examples …. 11.2 ground rules …. 11.4 management methods …. 11.4, 11.5, 11.11 preparation …. 11.3, 11.11, 11.12 relationships …. 11.2, 11.3 roles of group members …. 11.3 systematic approach …. 11.5 overview …. 11.1, 11.11 team negotiations …. 11.7, 11.8, 11.11, 11.12 opportunities …. 11.8, 11.9 risks …. 11.10 Concession-making

conceding …. 2.16 first offer …. 2.16 guidelines …. 2.16 hypothetical anatomy …. 2.14 linking concessions …. 2.16 micro-concessions …. 2.14 overview …. 2.14, 2.15, 2.23, 4.7 reluctance and difficulty …. 2.16 soft goal-orientated opening …. 4.13 Confidentiality …. 5.25 Confirming evidence trap …. 10.9 Conflict behavioural styles …. 7.6 brain functions, and …. 8.2 categories of conflict …. 7.4 causes of conflict …. 7.4 common ground …. 7.4 communitarianism …. 9.4 dangerous side of conflict …. 7.2, 7.3 effective management …. 7.4, 7.5 elements of danger …. 7.3 data conflicts …. 7.4 definition …. 7.2 differences in people …. 7.6, 7.14 effective management …. 7.4 flight or fight response …. 8.3 individualism …. 9.4 opportunities, and …. 7.2, 7.5 overview …. 7.2, 7.13, 7.14

rectifying misperceptions …. 7.4 relationship conflicts …. 7.4 separating people from problem …. 7.4, 8.8 structural conflicts …. 7.4 value conflicts …. 7.4 Conflicting interests interest-based negotiation …. 3.2 overview …. 1.2, 7.4 positional negotiation …. 2.21 team negotiations …. 11.10 Constructive negotiation agenda …. 4.27 probing hidden agenda …. 4.28 agreements …. 4.41 documenting …. 4.42 review process …. 4.41 testing the proposal …. 4.41 aims …. 1.13 art of negotiation …. 1.6 building trust …. 4.18 calculus-based trust …. 4.20 identification-based trust …. 4.21 choosing approach …. 4.1 closing tactics …. 4.36, 4.38 competitive style …. 4.37 cooperative style …. 4.38 complexity, and …. 11.1 debriefing …. 4.43

decision-making …. 8.1 distrust …. 4.19 managing distrust …. 4.22, 4.23 exploring interests …. 4.29, 4.31 guidelines …. 4.31 information sharing …. 4.31 separation from positions …. 4.30 types of interests …. 4.29 evolutionary process …. 4.9, 4.17 four stages of negotiation …. 4.3, 4.9, 4.44 evolutionary process, as …. 4.9, 4.17 exploration of issues and interests …. 4.5 generation of options …. 4.6, 4.7 micro-processes …. 4.10 reflexive negotiators …. 4.9 relational positioning …. 4.4 researching solutions …. 4.8 independent criteria …. 5.11 information-gathering …. 4.26 intersectionality …. 9.1, 9.12 key negotiation points …. 4.45 managing distrust …. 4.18 calculus-based trust …. 4.22 identification-based trust …. 4.23 multi-dimensional nature …. 7.1, 7.13, 12.1 Negotiation Navigation Map …. 5.3 opening negotiations …. 4.12, 4.16 firm reasonable …. 4.14, 4.15 opportunities and risks …. 4.15

problem-solving …. 4.15 soft goal-orientated …. 4.13, 4.15 options …. 4.33 evaluation of options …. 4.34, 4.35, 5.11 generation of options …. 4.32, 4.33 prioritising …. 4.35 risk analysis tools …. 4.35 outcome of negotiations …. 4.39 agreement …. 4.41, 4.42 documenting …. 4.40, 4.42 no agreement …. 4.40 reality testing proposal …. 4.41 overview …. 1.6, 1.13, 1.18, 1.19, 3.12, 4.1, 4.45, 5.4, 12.1 positional information …. 4.25 priority information …. 4.24, 4.25 problem-solving …. 4.34, 4.38 evaluation of options …. 4.34, 4.35 reflective debrief …. 4.43 reflective learning …. 1.18 reflexive negotiators …. 1.18, 4.9, 4.43 relational positioning …. 4.4, 4.16 priority information …. 4.24 science of negotiation …. 1.6 successful negotiations …. 1.6, 4.2, 12.3, 12.13 artful and scientific …. 12.10 BATNA …. 12.8 common elements …. 4.2 critical reflection …. 12.13

ethics …. 12.9 firm, friendly and fair …. 12.5 guiding principles …. 12.3 listening skills …. 12.6 mindful and curious …. 12.11 multiple intelligences …. 7.12, 12.7 paradoxes and polarities …. 12.12 preparation …. 12.4 ten-step guide …. 4.10, 4.44 agenda …. 4.27, 4.28 closing tactics …. 4.36–4.38 debriefing …. 4.43 exploring interests …. 4.29–4.31 information-gathering …. 4.26 opening negotiations …. 4.12–4.15, 4.16 option generation …. 4.32, 4.33 outcome of negotiations …. 4.39–4.42 preparation …. 4.11 priority information …. 4.24, 4.25 problem-solving …. 4.34, 4.35, 4.38 reflective debrief …. 4.43 relational positioning …. 4.16, 4.24 relationships …. 4.17 trust and distrust …. 4.18–4.23 trust and distrust …. 4.18 building trust …. 4.20, 4.21 calculus-based trust …. 4.19, 4.20 identification-based trust …. 4.19, 4.21 managing distrust …. 4.22, 4.23

unsuccessful negotiation …. 12.2 contributing factors …. 12.2 Constructive negotiation model …. 4.2 Cooperative style characteristics …. 3.8 closing tactics …. 4.38 interest-based negotiators …. 2.18, 3.7, 3.8, 3.14 overview …. 1.10, 3.7, 3.8 tactics …. 3.9 closing tactics …. 4.38 Cultural dimensions brain functions, and …. 9.2 case illustration …. 9.7 classification schemas …. 9.3 cultural assumptions …. 9.7 cultural fluency …. 9.3, 9.8, 9.14 guidelines …. 9.8 individualism and communitarianism …. 9.4 interpretation of experiences …. 9.2 key negotiation points …. 9.14 meaning-making …. 10.15 overview …. 9.1, 9.2, 9.8, 9.12, 9.13 sequential and synchronous time …. 9.6 specificity and diffuseness …. 9.5 strategies of action …. 9.5 universalism and particularism …. 9.7 Deadlocks see Impasses Debriefing …. 4.43

Decision-making amygdala …. 8.7 communitarianism …. 9.4 emotional brain …. 8.3, 8.6 emotions, and …. 8.2, 8.6, 8.7, 8.9, 8.16, 8.17 framing …. 8.9, 8.17 individualism …. 9.4 key negotiating points …. 8.16 mere exposure effect …. 8.9 overview …. 8.1, 8.6, 8.15, 8.16 rational brain …. 8.6 social intelligences, and …. 8.2 traps …. 8.9 unfairness trap …. 8.9 weight of factors …. 8.9 Definitional power …. 7.8 Definitions see also Words and phrases conflict …. 7.2 emotional intelligence …. 7.12 negotiation …. 1.2, 1.19 negotiation position …. 2.8 zone of possible agreement …. 2.13 Delays and silence …. 10.3 Delphi technique …. 11.5 Differences in people behavioural styles …. 7.6 DISC model of styles …. 7.6 core styles …. 7.6

emotional intelligence …. 7.12 negotiation styles …. 7.6 overview …. 7.6, 7.14 Dispute resolution negotiations …. 1.3 Distributive negotiation approach …. 2.4 fixed pie …. 2.4, 2.23 overview …. 2.2, 2.4, 2.6, 2.23 zero-sum game …. 2.2, 2.4, 2.23 Distrust see Trust and distrust Documentation and equipment …. 5.29 Emotional brain amygdala …. 8.3, 8.6, 8.7, 8.12 decision-making …. 8.3, 8.6 flight or fight responses …. 8.3, 8.6 overview …. 8.3 physical responses …. 8.6 rational thinking …. 8.6 storytelling, and …. 8.5, 8.9 recalling information …. 8.5 Emotional intelligence broad competencies …. 7.12 definition …. 7.12 increasing …. 7.12 mentalizing …. 7.12 overview …. 7.10 Emotions anger …. 8.11

awareness …. 1.15 basic emotions …. 8.11 contagious emotions …. 8.5, 8.8 decision-making, and …. 8.2, 8.6, 8.7, 8.9, 8.16, 8.17 emotional hijacking …. 8.7, 8.9, 8.12 fear …. 8.11 framing, and …. 8.9, 8.17 guilt …. 8.11 hurt …. 8.11 identifying emotions …. 8.11 managing emotions …. 8.10, 8.12 others’ emotions …. 8.13 techniques …. 8.12, 8.13 meaning …. 8.11, 8.12 meta-emotions …. 8.11, 8.13 movement between people …. 8.5 negative associations …. 8.6, 8.7, 8.9 overview …. 8.1, 8.10, 8.16 positive associations …. 8.6 regret …. 8.11 resentment …. 8.11 sadness …. 8.11 shame …. 8.11 source of power, as …. 7.8 subtle emotions …. 8.11 types of emotions …. 8.11 unfairness, and …. 8.9 using emotions …. 8.8, 8.14 Empathy …. 1.15, 6.17, 8.5, 8.8, 8.1, 9.10, 12.7

Ethics hardball tactics, and …. 10.6, 10.17 overview …. 12.9 positional negotiation …. 2.1 Expert power …. 7.8 Facilitators multiparty negotiations …. 11.4 Fixed pie …. 2.4, 2.12, 2.23, 2.24 Framing certainty …. 8.9 choice of constructive words …. 6.21 choices …. 8.9 decision-making …. 8.9, 8.17 emotions, and …. 8.9, 8.17 free …. 8.9 overview …. 5.6, 6.21, 8.9 perception of choice …. 8.9 reframing …. 6.21 source of power, as …. 7.8 Framing trap …. 10.9 Gender see Sex and gender Goals Negotiation Navigation Map …. 5.13 overview …. 5.13 positional negotiation …. 2.7, 2.9, 4.34 evaluating offers …. 4.34, 4.35 soft goal-orientated opening …. 4.13

Good faith obligation hardball tactics, and …. 10.7 overview …. 10.7 statutory provisions …. 10.7 Group communications Johari Window …. 11.6, 11.11 overview …. 11.6 Habitual power …. 7.8 Hardball tactics alternative tactics …. 10.4, 10.17 codes of conduct, and …. 10.6, 10.7 ethics, and …. 10.6, 10.17 examples of tactics …. 10.3 good faith obligation …. 10.7 key negotiating points …. 10.17 law, and …. 10.6, 10.7 case law …. 10.7 statutory provisions …. 10.7 lying …. 10.3 alternatives to lying …. 10.4 misleading or deceptive conduct …. 10.7 overview …. 10.1, 10.2, 10.16 responding to tactics …. 10.5, 10.16 name and disarm approach …. 10.5, 10.17 types of tactics …. 10.2, 10.3 unconscionable conduct …. 10.7 use of tactics …. 10.2

Identity characteristics …. 9.12 Impasses breaking impasses …. 10.10, 10.17 conduct of process …. 10.11 interaction dynamic …. 10.12 nature of offer on table …. 10.13 perceptions of principles …. 10.14 relationship dynamic …. 10.12 development of impasses …. 10.8 negotiating traps …. 10.9, 10.17 overview …. 10.8, 10.16 Information-gathering …. 4.26 Information sharing exploring interests …. 4.31 interest-based negotiators …. 3.9, 3.12, 3.15 positional information …. 4.25 priority information …. 4.24, 4.25 Interest-based negotiation see also Constructive negotiation; Positional negotiation alternatives to negotiation …. 3.1, 3.3, 4.34, 5.12 BATNA …. 3.3 evaluation of options …. 4.34, 4.35 options …. 3.4 approach …. 3.1, 3.14 categories of interests …. 3.2 communication …. 3.9 conduct of negotiations …. 3.1 constructive approach, and …. 4.1 cooperative style …. 2.18, 3.7, 3.8, 3.14

characteristics …. 3.8 tactics …. 3.9 criticisms of model …. 3.12 examples …. 3.1, 3.5 exploration of issues …. 4.5 goal …. 3.1 flexibility …. 3.9, 3.15 identification of interests …. 3.2 independent criteria …. 3.1, 3.6 competing interests, and …. 3.6 information sharing …. 3.9, 3.12, 3.15 interests …. 3.1, 3.2, 3.9, 3.13, 3.15, 4.29, 4.30 multiple interests …. 3.2 multiple options …. 3.5 Negotiation Navigation Map …. 5.4 opening negotiations …. 4.12 problem-solving …. 4.15 opportunities …. 3.10, 3.11, 3.14 options …. 3.1, 3.4, 3.5 competing interests …. 3.6 evaluation of options …. 4.34, 4.35 fairness of options …. 3.6 generating options …. 3.5, 3.6, 3.9 multiple options …. 3.5 solutions, as …. 3.5 overview …. 1.9, 2.1, 3.1, 3.13, 3.15 positional negotiation, differences …. 3.1, 3.13, 3.14 priorities of interests …. 3.2 problem-solving …. 4.34

risks …. 3.10, 3.12, 3.14 styles …. 2.18, 3.7, 3.8, 3.9, 3.13, 3.14 tactics …. 3.9, 3.13, 3.14 trust …. 3.9 types of interests …. 3.2 Interests see also Conflicting interests categories of interests …. 3.2, 4.29, 5.8, 10.10 describing interests …. 3.9 exploring interests …. 4.29, 4.31 identification of interests …. 3.2 issues, distinction …. 4.29 multiple interests …. 3.2 Negotiation Navigation Map …. 5.8 overview …. 3.2, 3.13, 3.15, 4.29, 5.8 priorities of interests …. 3.2 separation from positions …. 4.30 Interpersonal skills conflict …. 7.2, 7.13, 7.14 causes of conflict …. 7.4 dangerous side of conflict …. 7.2, 7.3, 7.4 differences in people …. 7.6 managing conflict …. 7.4, 7.5 opportunities, and …. 7.2, 7.5 differences in people …. 7.6, 7.14 behavioural styles …. 7.6 negotiation styles …. 7.6 key negotiating points …. 7.14 multiple intelligences …. 7.10, 7.11, 7.13

effect on negotiations …. 7.11 emotional intelligence …. 7.12 successful negotiations, and …. 7.11 overview …. 7.1, 7.13 power …. 7.7, 7.8, 7.13 effect on negotiations …. 7.9 sources of power …. 7.8, 7.9 types of power …. 7.8 working with power …. 7.9 Intersectionality …. 9.1, 9.12, 9.13, 9.14 Johari Window …. 11.6, 11.11 Law Australian Consumer Law …. 10.7 good faith obligation …. 10.7 hardball tactics, and …. 10.6, 10.7 Legitimate power …. 7.8 Listening skills active listening …. 6.3, 6.6, 6.8, 6.19, 6.23, 6.24 attentive body language …. 6.10–6.12 benefits for negotiators …. 6.8 clarifying questions …. 6.13 empathy …. 6.17 main techniques …. 6.9, 6.19 open-ended inquiries …. 6.15 summarising …. 6.18 time out …. 6.14

verbal followers …. 6.16 verbal pacing …. 6.16 four listening ears …. 6.7, 6.23, 6.24, 12.6 overview …. 6.6, 6.7 Lizard brain …. 8.3 Lying …. 10.3, 10.4 Meaning-making …. 10.15 Mediators multiparty negotiations …. 11.4 Memory …. 8.4 Method of negotiation see Strategies Mind mapping …. 4.33 Misinformation …. 10.3 Misleading or deceptive conduct …. 10.7 MLATNA …. 3.3, 5.3, 5.12 Moral power …. 7.8 Most likely alternative to negotiated agreement see MLATNA Multiparty negotiations see also Team negotiations agendas …. 11.4 bilateral negotiations, and …. 11.2 brainstorming …. 11.5 chairperson …. 11.4 coalitions …. 11.2, 11.3 Delphi technique …. 11.5 dimensions of complexity …. 11.2 examples …. 11.2 facilitators …. 11.4

first agreement objective …. 11.5 ground rules …. 11.4 key complexities …. 11.2 management methods …. 11.4, 11.11 reducing complexity …. 11.5 mediators …. 11.4 nominal group technique …. 11.5 one-text procedure …. 11.5 other forums …. 11.5 overview …. 11.1, 11.2, 11.11, 11.12 preparation …. 11.3, 11.11, 11.12 relationships …. 11.2, 11.3 roles of group members …. 11.3 smaller working groups …. 11.4 systematic approach …. 11.5 team negotiations, distinction …. 11.7 Multiple intelligences effect on negotiations …. 7.11 emotional intelligence …. 7.10, 7.13 definition …. 7.12 increasing …. 7.12 mentalizing …. 7.12 overview …. 7.10, 7.13 successful negotiations, and …. 7.11, 12.7 Negotiating power see Power Negotiating traps overview …. 10.9, 10.17

types of traps …. 10.9 Negotiation aim of negotiation …. 1.2 behaviour bundles …. 2.18 characteristics …. 1.2 communication medium …. 5.30 constructive approach see Constructive negotiation context …. 1.4, 1.5, 1.15 definition …. 1.2, 1.19 dispute negotiations …. 1.3 multi-dimensional nature …. 1.4, 1.5, 1.7, 1.18, 1.19 overview …. 1.1, 1.19 purpose of negotiation …. 1.3 successful negotiations …. 1.3, 1.5 constructive approach …. 1.6 terminology …. 1.8, 1.14 transaction negotiations …. 1.3 Negotiation Navigation Map alternatives to negotiation …. 5.3, 5.12 bottom line …. 5.14 communication …. 5.9 framing the negotiation …. 5.6 goals …. 5.13 independent criteria …. 5.11 interests …. 5.8 options …. 5.10 evaluation of options …. 5.11 identifying potential options …. 5.15 overview …. 5.1, 5.2, 5.3, 5.32, 5.33, 7.9

scope of map …. 5.4 stakeholders …. 5.4, 5.7, 5.19 using the map …. 5.5 Negotiation skills see also Communication; Interpersonal skills overview …. 1.1, 1.11, 4.1, 7.1 skills, meaning …. 1.8, 1.11 Negotiators awareness …. 1.15 reflexive negotiators …. 1.14, 1.15, 1.17, 1.18, 1.19, 4.9 strategies see Strategies styles see Styles of negotiation tactics see Tactics Nuisance power …. 7.8 One-text procedure …. 11.5 Opening negotiations firm reasonable opening …. 4.14, 4.15 hardball tactics …. 10.3 opportunities and risks …. 4.15 overview …. 4.12, 4.16 problem-solving opening …. 4.15 soft goal-orientated opening …. 4.13, 4.15 Opinions as fact …. 10.3 Options alternatives to negotiation …. 3.4, 4.34 competing interests, and …. 3.6 evaluation of options …. 4.34, 4.35 independent criteria …. 3.6, 5.11

prioritising …. 4.35 risk analysis tools …. 4.35 fairness of options …. 3.6 generating options …. 3.5, 3.6, 3.9, 4.6, 4.32 atlas of approaches …. 4.33 bad ideas …. 4.33 brainstorming …. 3.5, 4.33 guidelines …. 4.33 mind mapping …. 4.33 ‘Six Hats’ technique …. 4.33 wordplay …. 4.33 identifying potential options …. 5.15 interest-based negotiations …. 3.4, 3.5, 3.6, 3.9, 4.34 multiple options …. 3.5 Negotiation Navigation Map …. 5.10, 5.11, 5.15 overview …. 3.5, 4.7 solutions, as …. 3.5 Outcome of negotiations agreement …. 4.8, 4.41 documenting …. 4.42 review process …. 4.41 testing the proposal …. 4.41 documenting …. 4.40, 4.42 no agreement …. 4.40 overview …. 4.39 Over-cautiousness trap …. 10.9 Pacing trap …. 10.9

Paradoxes and polarities …. 12.12 Parties decision-makers …. 5.22 Negotiation Navigation Map …. 5.4 overview …. 5.23 reluctant parties …. 5.24 Patience power …. 7.8 People see Differences in people Perception of power …. 7.8 Personal attacks …. 10.3 Personal power …. 7.8 Positional information …. 4.25 Positional negotiation see also Constructive negotiation; Interest-based negotiation adversarial negotiation, and …. 2.2, 2.5, 2.6, 2.23 approach …. 2.3, 3.1, 3.14 awareness …. 2.16 bottom lines …. 2.7, 2.11, 4.34, 5.14 evaluating offers …. 4.34, 4.35 competitive style …. 2.18, 2.23, 3.8, 3.14 concession-making …. 2.14, 2.15, 2.23, 4.7 first offer …. 2.16 guidelines …. 2.16 hypothetical anatomy …. 2.14 linking concessions …. 2.16 micro-concessions …. 2.14 soft goal-orientated opening …. 4.13 conditional-linked bargaining …. 2.16 conflicting interests …. 2.21

constructive approach, and …. 4.1 controversial reputation …. 2.1, 2.24 distributive negotiation, and …. 2.2, 2.4, 2.6, 2.23 ethical principles …. 2.1 expectations …. 2.7, 2.10 exploration of issues …. 4.5 first offer …. 2.16 fixed pie …. 2.4, 2.12, 2.23, 2.24 goals …. 2.7, 2.9, 4.34 evaluating offers …. 4.34, 4.35 illustrative example …. 2.6 interest-based negotiation, differences …. 3.1, 3.13, 3.14 interests …. 4.29, 4.30 legal settlements …. 2.1 Negotiation Navigation Map …. 5.4 offers and counter-offers …. 2.15, 4.7 evaluating offers …. 4.34, 4.35 opening negotiations …. 4.12 firm reasonable …. 4.14 soft goal-orientated …. 4.13 opening positions …. 2.3, 2.7, 2.16 problem-solving …. 4.15 opportunities …. 2.20, 2.21, 2.24, 3.14 overview …. 1.9, 2.1, 2.6, 2.17, 2.23, 2.24, 3.12 parameters …. 2.7, 2.12, 2.23 positions …. 2.7, 2.8, 2.23, 2.24, 4.29 bottom lines …. 2.11 definition …. 2.8 expectations …. 2.10

goals …. 2.9 opening positions …. 2.3, 2.7, 2.16 separation of interests …. 4.30 types of positions …. 2.7, 2.8 problem-solving …. 4.34 risks …. 2.20, 2.22, 2.24, 3.14 styles …. 2.17 competitive style …. 2.18, 2.23, 3.8, 3.14 tactics …. 2.17, 2.19, 3.9, 3.14 anchoring …. 2.19 target point …. 2.10 zero-sum game …. 2.2, 2.4, 2.5, 2.23, 2.24 zone of possible agreement …. 2.13 Power awareness …. 7.9 balance of power …. 7.9 coalitions …. 7.8, 11.3 cultural dimensions …. 9.1, 9.12 effect on negotiations …. 7.9 increasing power …. 7.9 intersecting identities …. 9.12 managing excessive demonstrations …. 7.9 overview …. 7.7, 7.8, 7.13 responses to power …. 7.9 sex and gender …. 9.12 sources of power …. 7.8, 7.13 effect on negotiations …. 7.9 team negotiations …. 11.9

types of power …. 7.8 working with power …. 7.9 Predictability trap …. 10.9 Predictions …. 10.3 Preparation communication medium …. 5.30 confidentiality …. 5.25 diagnosis and design …. 5.17, 5.33 documentation and equipment …. 5.29 key negotiating points …. 5.33 logistics …. 5.18 communication medium …. 5.30 confidentiality …. 5.25 decision-makers …. 5.22 documentation and equipment …. 5.29 parties to negotiation table …. 5.23, 5.24 self-preparation …. 5.31 stakeholders …. 5.19–5.21 timing and time frames …. 5.28 venue for negotiation …. 5.26, 5.27 methodology …. 5.2 multiparty negotiations …. 11.3, 11.11, 11.12 Negotiation Navigation Map …. 5.1, 5.2, 5.3, 5.32, 5.33, 7.9 alternatives to negotiation …. 5.3, 5.12 bottom line …. 5.14 communication …. 5.9 framing the negotiation …. 5.6 goals …. 5.13 independent criteria …. 5.11

interests …. 5.8 options …. 5.10, 5.11, 5.15 scope of map …. 5.4 stakeholders …. 5.4, 5.7, 5.19 using the map …. 5.5 overview …. 4.11, 5.1, 5.32, 5.33, 12.4 parties to negotiation table …. 5.23 reluctant parties …. 5.24 rapport …. 5.31 risk analysis …. 5.16, 5.33 self-preparation …. 5.31 stakeholders …. 5.4, 5.7, 5.19 input to negotiations …. 5.21 interests …. 5.20 level of influence …. 5.20 systematic approach …. 5.2 timing and time frames …. 5.28 venue for negotiation …. 5.26 seating arrangements …. 5.27 Priority information …. 4.24, 4.25 Problem-solving evaluation of options …. 4.34, 4.35 overview …. 4.34, 4.38 wicked problems …. 10.15 Procedural power …. 7.8 Professional misconduct …. 10.7 Purpose of negotiation …. 1.3

Questions overview …. 6.22, 6.24 types of questions …. 6.22 Rapport …. 5.31 Rational brain decision-making …. 8.6 overview …. 8.3 rational thinking …. 8.6 Reactive devaluation trap …. 10.9 Recallability trap …. 10.9 Referent power …. 7.8 Reflective learning …. 1.14, 1.16, 1.18, 1.19 Reflexive negotiators awareness …. 1.15, 6.1 four-stage negotiation …. 4.9 overview …. 1.14, 1.17, 1.18, 1.19, 12.13 reflective debrief …. 4.43 Reframing …. 6.21 Refusal to negotiate …. 10.3 Relational positioning overview …. 4.4, 4.16 priority information …. 4.24 Relationships see also Trust and distrust multiparty negotiations …. 11.2, 11.3 team negotiations …. 11.9, 11.10 Resource power …. 7.8 Reward power …. 7.8

Risk analysis breaking impasses …. 10.13 illustration …. 5.16 offers or options …. 4.35 overview …. 5.16 Sex and gender behaviour differences …. 9.11 brain functions, and …. 9.10 case illustration …. 9.11 communication …. 9.10, 9.11 empathy …. 9.10 key negotiation points …. 9.14 overview …. 9.1, 9.9, 9.12, 9.13 wicked problems …. 10.15 Skills see Communication; Interpersonal skills; Negotiation skills Social identity characteristics …. 9.12 Stakeholders see also Interests; Parties input to negotiations …. 5.21 interests …. 5.20 level of influence …. 5.20 Negotiation Navigation Map …. 5.4, 5.7, 5.19 Status quo trap …. 10.9 Storytelling emotional brain, and …. 8.5, 8.9 opportunities and risks …. 8.5 overview …. 8.5 recalling information …. 8.5

Strategies interest-based see Interest-based negotiation meaning …. 1.8, 1.9 overview …. 1.1, 1.7 positional see Positional negotiation types of strategies …. 1.9 Styles of negotiation behaviour bundles …. 2.18 behavioural styles …. 1.10, 7.6 competitive style …. 1.10, 2.18, 2.23, 3.7, 3.8, 3.14, 4.7 characteristics …. 2.18 closing tactics …. 4.37, 4.38 tactics …. 3.9, 4.37, 4.38 cooperative style …. 1.10, 2.18, 3.7, 3.8, 3.14 characteristics …. 3.8 closing tactics …. 4.38 tactics …. 3.9, 4.38 interest-based negotiation …. 2.18, 3.7, 3.8, 3.9, 3.13, 3.14 overview …. 1.1, 3.7, 4.1 positional negotiation …. 2.17, 2.18, 2.23, 3.8, 3.14 style, meaning …. 1.8, 1.10 Sunk-cost trap …. 10.9 Sympathy …. 6.17 Tactics anchoring …. 2.19 closing tactics …. 4.36, 4.38 competitive style …. 3.9, 4.37

cooperative style …. 3.9, 4.38 hardball see Hardball tactics interest-based negotiators …. 3.9, 3.13, 3.14 overview …. 1.12, 4.1 parties to negotiation table …. 5.24 positional negotiation …. 2.17, 2.19, 3.9, 3.14 Target point …. 2.10 Team negotiations see also Multiparty negotiations common purpose …. 11.7 multiparty negotiations, distinction …. 11.7 opportunities …. 11.8, 11.9 overview …. 11.2, 11.7, 11.8, 11.11 project teams …. 11.7, 11.8 risks …. 11.10 selection of teams …. 11.12 types of teams …. 11.7 Terminology see Definitions; Words and phrases Threats …. 10.3, 10.4 Timing and time frames …. 5.28 Tough negotiation see Hardball tactics; Impasses Transaction negotiations …. 1.3 Trust and distrust building trust …. 4.18 calculus-based trust …. 4.20 identification-based trust …. 4.21 interest-based negotiators …. 3.9 managing distrust …. 4.18 calculus-based trust …. 4.22 identification-based trust …. 4.23

overview …. 4.18 types of trust …. 4.19 Unconscionable conduct …. 10.7 Venue for negotiation overview …. 5.26 seating arrangements …. 5.27 Walk-away alternatives see Alternatives to negotiation WATNA …. 3.3, 5.3, 5.12 Wicked problems activities to address …. 10.15 features …. 10.15, 10.16 illustration …. 10.15 meaning …. 10.15 overview …. 10.1, 10.15, 10.16, 10.17 Withholding information …. 10.3 Words and phrases see also Definitions constructive negotiation …. 1.13 empathy …. 6.17 reflective …. 1.14 reflective learning …. 1.14 reflexive …. 1.14 reflexive negotiators …. 1.14 skills …. 1.8, 1.11 strategy …. 1.8, 1.9 style …. 1.8, 1.10

sympathy …. 6.17 tactics …. 1.12 wicked problems …. 10.15 Worst alternative to negotiated agreement see WATNA Zero-sum game …. 2.2, 2.4, 2.5, 2.23, 2.24 Zone of possible agreement …. 2.13