Kennedy on Negotiation

Gavin Kennedy

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780566073021
• eBook ISBN: 9781351924139
• Topic: Business
• Subtopic: Business General
• Index: Business

Negotiation is a vital skill for every manager. As a result, there are almost as many 'patented' techniques for negotiation as there are managers, each proclaiming to be the definitive route to success. The authors behind these techniques keep their work very much to themselves. Their fundamentally different approaches to negotiation remain in isolation from each other, as if their authors were too polite to contradict others in the field. In most cases, when you are developing your negotiation skills, this leaves you with a stark choice: pick a single technique and ignore the rest. Until now ... Kennedy on Negotiation is an authoritative and comprehensive guide to negotiation skills training and practice. Dr Kennedy uses the well-established 'Four Phases' model as the structure around which he critiques constructively the numerous competing theories and models. Gavin Kennedy's book is everything you would expect from one of the most respected writers on negotiation. It is a readable and reliable guide to all that is best in the various contributions to negotiation training from authors such as John Nash, Walton and McKersie, Atkinson, Nierenberg, Rubin and Brown, Gottschalk, Karass, Fisher and Ury, and many more, including Gavin Kennedy himself.

Dialogue

Chapter
1
Negotiation as a Phased Process

Models of Negotiation

Of the various models of negotiation practice I shall focus on one I have been associated with for over twenty years. One author calls it a processual²⁴ approach but I have always had difficulty saying this without stumbling. I prefer to call it a phased process. Take your pick.

My own work on negotiation began in 1969 while observing labour productivity negotiations at a Shell refinery near London. Before I had completed my research²⁵ my attention switched from what the negotiators were doing to how to negotiate effectively. There were no books and precious few articles in the UK on how to negotiate and these did not begin to appear until after 1972. By the mid-1980s there was a veritable flood (I had written four of them myself by 1985). Bibliographies on negotiation now encompass thousands of individual items, far too many to mention but a fraction of them here. Where once there was a desert, today there is a lush and fruitful Eden. On a personal level, it thrills me to be part of it and, even more, to have been in at the beginning.

My eight-steps training model developed independently of what I later discovered to be earlier work by Ann Douglas²⁶ in the United States. It pre-dated the fascinating study by Philip H. Gulliver of the comparative negotiating practices of the Arusha people of Tanzania and labour negotiators in America.²⁷

If intelligent people observe and analyse the practice of negotiation they will likely come to similar conclusions. Douglas, Gulliver and I based our insights on detailed observation of live negotiations and it is not surprising that we independently identified similar processes at work. In Douglas's case, she used a verbatim record of an industrial dispute, plus her considerable experience from other labour negotiations, to arrive at her phases' model. Gulliver too, developed his phases' model from detailed observation of negotiators at work in two distinct cultures and in doing so he uncovered and confirmed the phased patterns all three of us saw.

Herbert Simon,²⁸ by way of contrast, produced a deductive phased model of rational choice, which preceded the inductive models of Douglas, Gulliver and myself, and is echoed today by the Harvard school of 'principled' negotiation (Fisher and Ury, among others).²⁹ Assumptions of rationality are often misleading as guides to action by professional mediators and their academic advisors.

These rational models came from deductive (theoretical) research, with occasional anecdotal forays into live observations. In stark contrast, the phased negotiation modellers display an inductive bias from observing what negotiators did, with occasional forays into deductive theory.

Though Simon preceded the inductive studies that produced the phases' models of negotiation, I shall defer commenting on his model until Chapter 5. Meanwhile, I shall examine the original phased models, highlighting their practical foundations and how they can improve your performance. They observe what real negotiators do, and, by implication, what you are doing when you negotiate, whether you are aware of the models or not.

Douglas's Three-Phase Model

Ann Douglas produced a three-phase model of the labour negotiations she observed. Her phases were:

• ○ Phase 1: establishing the negotiation range.
• ○ Phase 2: reconnoitring the range.
• ○ Phase 3: precipitating the decision-reaching crisis.

Phase 1 is a thorough and exhaustive determination' of the range within which the parties will do business.³⁰ In this phase the negotiators make long speeches and strive 'for a convincing demonstration that they are impossibly at loggerheads' and that there is substantive disagreement between them. Those familiar with labour negotiations and international disputes, will recognize the behaviour she observed.

Douglas asserted that the deeper the negotiators dig into their opening positions 'the more they enhance their chances for a good and stable settlement at the end'. She also noted that 'antagonism between the parties is the lifeblood of this first phase but that personal antagonism between individuals would be highly detrimental to the psychological activity that is foremost in the second phase'.

She specifically recommended that the negotiators should not attack each other personally but that they should concentrate on their differences over the issues. Her advice reappeared thirty years later in Fisher and Ury's prescription to 'separate the people from the problem'.³¹

In phase 2, the 'negotiators search earnestly for signs of tacit agreement, long before in their public exchange they can afford to profess anything but continued strong disagreement'.³² Observing the rhetoric of this second phase in labour negotiations, we see this happening in statements and re-statements of their initial positions and references to 'wide gaps' and 'no signs of movement' (by the other side!) until, suddenly, we enter the third phase.

In phase 3, the negotiators precipitate a 'decision crisis' by consulting their respective constituencies and trying to conclude an agreement from what they have learnt of the other party's willingness to settle, and the prospects, if any, for improving on what is now on offer on the table.³³

Gulliver's Eight Phases

Gulliver identified an eight-phased process. He labelled them:

1. search for an arena;
2. composition of the agenda and the definition of issues;
3. establishing maximal limits to issues in dispute;
4. narrowing the differences;
5. preliminaries to final bargaining;
6. final bargaining;
7. ritual affirmation;
8. execution of the agreement.

Gulliver's eight-phase model is a mixture of task and behaviour. He acknowledges immediately that his linear numbering does not mean that the process is necessarily linear or congruent with chronological time.³⁴ With this I completely concur. Negotiation is seldom a highly structured experience because there are numerous opportunities for diversions, distractions, back-tracking, and cyclical variations, that can be a cause of confusion, even distress, to the uninitiated.

In Gulliver's phase 1 — the search for an arena — the parties recognize that they have a problem and that they need to agree to meet somewhere to negotiate an outcome. This could be difficult if one of you refuses to meet or to acknowledge that there is a problem and forgoes the prospects of a negotiated settlement because he is happy with the status quo.

Trivially, if you want to negotiate you must at least make a joint decision on exactly where the meeting is to take place. I do not think, however, that this is a large issue for the overwhelming majority of private negotiations in economies like the UK, though it is not uncommon for lawyers tactically to delay meetings. Internationally, we see occasional disputes over the meeting place and even the shape and layout of its furniture (e.g. the Vietnam peace negotiations in Paris, or the negotiations to formally end the Iran—Iraq war in Geneva). As negotiators regularly ask whether it is better to meet in their own or in somebody else's premises, these issues must be important in some circumstances.

In phase 2 — composition of the agenda and the definition of issues —you have to establish what it is that you are disputing. This is never as clear in practice as it seems rational to suppose in theory. What triggers a negotiation may be only a small part of what eventually lands on the table. Some disputes explode from a vague discontent into a whole list of other issues, especially in labour disputes of the spontaneous 'walk-out' variety. These rapidly spread like wildfire and, as new entrants join the walk-out, this often increases the list of issues in dispute and the players' militancy. When these disputes catch the management and the official union leaders by surprise, it is extremely difficult to agree on what the dispute is about.

Other negotiators tussle over the agenda and introduce preconditions to force their own views on what is negotiable. A serious dispute over preconditions stultifies progress. Britain, for example, will not negotiate — or even discuss — the sovereignty of the Falkland Islands; Argentina, meanwhile, takes every opportunity in every diplomatic forum to discuss the sovereignty of the Malvinas. In so far as disputes before negotiating on substantive issues are common enough, Gulliver is probably right to make them a separate phase.

Substantive issues dominate the third phase — establishing maximal limits to issues in dispute (echoes of phase 1 in the Douglas model) —which, for most practitioners, constitutes the real opening of the face-to-face negotiations. It is also the phase most notably misunderstood by novices, where a great deal of high-blown rhetoric dominates the proceedings.

If you took to heart what is said in this early phase, or become influenced too much by the tone of the alternating monologues, you might wonder if negotiations were going to take place at all. Following the line that the best method of defence is attack, you launch into spirited attacks on the other party's expected positions and make extreme cases for why you cannot move on issues that they claim are fundamental to their principles.

This is the phase that caught in the craw of Fisher and Ury and their strictures against the behaviour of positional bargainers have most validity in these opening rounds. Tension is undoubtedly high and often personal. It is an uncomfortable time for the faint hearted and those least used to adversarial behaviour.

At the beginning of a negotiation over something important to you, anxiety and uncertainty about the outcome is at its highest. There is a long way to go, of course, before you resolve the issues, but the normal anxiety you feel enforces upon you an expected hostility against the other negotiators who stand in the way of you getting what you want. Imputing insincere motives to others produces tension, and, if reciprocated in tone and manner, the noise of conflict might get worse before it gets better.

Experienced negotiators (not those Lord Nelson before the Battle of Copenhagen described as the 'children of war') hear enough verbal abuse not to let it rattle their sense of purpose. They have heard the long speeches and listened to the other side's claims to the moral high ground on all and every issue, not to fall into the argument traps lying in wait for ill-informed beginners.

The opening rounds of many negotiations are not a place for kindly professors used to more genteel lifestyles and to modes of controversy commonly found in post-graduate seminars, though, come to think of it, I have heard more than one 'kindly" professor launch into an extreme diatribe against something or someone, and usually both at the same time, who proposed to change something dear to their sense of worth (for example, any mention of removing parking privileges for senior faculty!).

The rhetoric and tone of this phase is part of the 'theatre' of negotiating and something you get used to. One thing the uninitiated must not do is take it all too seriously and consequently make unnecessary — or any - concessions in a fatuous attempt to calm tempers. Concessions won by rhetoric alone only encourage irascible players irascibly to demand more. If you jump when they go 'woof, woof, don't be surprised if they see just how high you will jump if they keep 'woofing'!

Sometimes, eventually 'woofing' gives way to calmer interchanges. This is Gulliver's fourth phase — narrowing the differences — when you move from rhetoric towards detailed consideration of the issues. In so doing, you exhibit more co-operative tones as you sift through the issues and ponder tentative suggestions on how you both might deal with them. The calmness and the lowering of tension, however, is only relative compared to the third phase. Exploration is a more fitting word for this phase than exhortation. Conditions exist for what I call signalling.

Gulliver identifies five sub-strategies to narrow the differences. They are not necessarily mutually exclusive. They provide useful insights into some of the problems that in my experience negotiators raise regularly at workshops.

First, the tempers of the third phase are cooled with a strategy of considering issues one at a time, in what Gulliver calls a simple agenda approach'.³⁵ Working your way through a list of items has the benefit of being orderly, but it risks manipulation to secure advantage through eliminating some issues from further consideration, on pain of a row breaking out again, to isolate and highlight issues important to one side. My advice is always to be careful of separating issues, particularly in agenda lists and in multiple-clause contracts.

Second, you can nominate the two or three most important issues for you and see if agreement is possible on these, in the expectation that the remaining, less important, issues will go through quickly. I caution against this approach too, because what appears to be important at the start of the negotiation could have less significance towards the end. When the remaining issues come up for consideration, you might want to revise your stance on the earlier issues to facilitate your stance on these later ones.

The interaction often reveals new information about the relative value of the issues to each of you and, by using up your negotiating capital on the early 'more important' issues, there may not be enough flexibility left to make it matter in the later issues. When you realize the implications of the proposals on the later issues or become aware of how their proposals weaken what you thought you had gained on earlier issues, you might be less happy with a strategy of nominating the important issues for negotiation first. Remember an issue is not a proposal, it is only an agenda item.

Third, you can reduce the issues to a single objective such as their contribution to profit or their impact on personal prestige or, pace Fisher and Ury, to some form of objective criteria.³⁶ You can eliminate from the negotiation those issues that do not make a contrib...

Table of contents

• Cover
• Half Title
• Dedication
• Title
• Copyright
• Contents
• List of Figures
• Preface
• Acknowledgements
• PROLOGUE
• DIALOGUE
• EPILOGUE
• APPENDICES
• Notes
• Index