Little Book of Strategic Negotiation

Negotiating During Turbulent Times

Jayne Seminare Docherty

• Publisher: Good Books
• Year: 2004
• ISBN:
  9781680992519
• Topic: Law
• Subtopic: Alternative Dispute Resolution
• Index: Law

Most books on negotiation assume that the negotiators are in a stable settintg. But what about those far thornier times when negotiation needs to happen while other fundamental factors are in uproarious change— deciding which parent will have custody of their child while a divorce is underway; bargaining between workers and management during the course of a merger and downsizing; or establishing a new government as a civil war winds down. From Docherty's experiences in environmental/public policy negotiations and community development work. A title in The Little Books of Justice and Peacebuilding Series.

1.

Negotiating in Turbulent Times

Five-year-old Sarah Jones debates with her father about what clothes she will wear to school today. John, her eight-year-old brother, discusses with his mother the appropriate bedtime for a third grader. Their 16-year-old sister, Libby, strikes an agreement with her parents to exchange babysitting services on Saturday morning for gas money and the keys to the car on Saturday night. The parents spend Saturday morning at the car dealership haggling over the purchase of a new car. And, at their Sunday afternoon family meeting, the entire family discusses the relative merits of vacationing at the beach or in the mountains following summer. This is a family of accomplished negotiators.

Negotiating is the most commonly used form of conflict resolution. It involves two or more people (sometimes called “parties”) who communicate with one another in order to promote shared understandings, overcome differences, reach compromises, or make mutually beneficial trade-offs. More books, articles, scholarly papers, and dissertations have been written about negotiation than any other method for dealing with human differences. Airport bookstores contain at least one book on negotiation that promises to make you more successful in your business endeavors.

Negotiation involves two or more people or parties who communicate with one another in order to promote shared understandings, overcome differences, reach compromises, or make mutually beneficial trade-offs.

These books tell you when to be a “tough” negotiator and when to be a “soft” negotiator. They promise to reveal the three secrets to “winning” through negotiation, and they give hints about when to share information and when to withhold information during bargaining. Some explain the phases of negotiation; they help you understand that negotiation incorporates agenda-setting, framing the problem, and narrowing the scope of differences between the parties. Most books and manuals on negotiation explore problem-solving, debate, persuasion, bargaining, and a host of other communication activities to achieve agreement around a particular problem. Some of this literature gives detailed explanations of cultural and gender differences in negotiation styles, helps you think about the impact of media attention on a negotiation, or guides you through the complexities of international multiparty negotiations.

These important and interesting aspects of negotiation are not the subject of this book. Rather, this Little Book explores a dimension of negotiation that is not widely understood or even recognized in the literature: how changes in the context affect negotiation, and how these might be addressed or incorporated into the negotiation processes.

Changing Contexts

Often negotiations occur in the context of established relationships, as with the Jones family above. Or, they take place within established social structures such as the legal system or corporate settings. When negotiators encounter one another within relationships and structures that are generally peaceful and widely accepted as legitimate, they are working within a relatively stable sense of reality. Their relationship and interactions are governed by mutually understood norms and rules. These norms and rules are enforced through voluntarily accepted cultural understandings about how things ought to be done, or through formal rules of behavior and contractual obligation, or through some combination of both. This means that in stable settings, the parties can focus on their encounter with one another rather than on managing changes in their surroundings that might affect their relationship.

A stable setting provides mechanisms that support the negotiation process, including the following:

• Mutually accepted rules of behavior.

• Shared norms of fairness.

• Relative certainty that the negotiators have a shared future.

• Institutions (formal or informal) that can enforce negotiated agreements.

We all know, however, that life gets messy. Change happens.

Sometimes change is thrust upon us. Our employer merges with another company or is bought out by a competitor. New government regulations force us to change our ways of doing business. The local school district decides to merge two schools because of a shrinking population.

Sometimes we initiate change. We decide to end our marriage. We participate in an environmental advocacy campaign to force the government to change its regulations and practices. We initiate changes that will lead to greater ethnic, racial, and gender diversity in our workplace. We work in a war-torn country to promote an end to civil strife and violence.

Most books on negotiation almost never ask the hard questions: How do we negotiate when life gets messy? How does an unstable environment alter the process of negotiation? How do we negotiate with one another when the institutions and structures that support negotiation are broken or missing? How do we negotiate with one another when we don’t share common understandings about how we should negotiate?

During times of organizational and social change, the mechanisms that support negotiation are unclear, fragile, or completely missing. The parties negotiate in contexts in which there are likely to be:

• Unclear or disputed rules of behavior.

• Competing norms of fairness.

• Uncertainty that they have a shared future.

• Broken, non-existent, or controversial institutions or mechanisms for enforcing negotiated agreements.

Who Can Use This Book?

If you have ever tried to negotiate an issue but had difficulty identifying the parties that need to be at the table, this book is for you. If you have ever reached a negotiated agreement only to have new parties and new issues emerge to upset the agreement, this book is for you. If you have ever wanted to promote social change and were uncertain about how to use negotiation as a strategy for achieving your goals, this book is for you. In other words, this book is for anyone who has encountered a situation where established practices seemed inadequate.

This book is an invitation to experiment with new ways of handling difficult negotiations rather than assuming that difficult situations make negotiations impossible.

I have deliberately selected three very different stories about negotiating in turbulent times to illustrate the lessons in this book. One story involves a divorcing couple. Another is about labor negotiations after a corporate merger. The third story deals with a complicated environmental issue. What holds these stories together is the turbulence that surrounds and intrudes upon the negotiation process in each case. This book is not a recipe for negotiation; it is an invitation to creative experimentation. I hope readers will be inspired to experiment with new ways of handling difficult negotiations rather than assuming that difficult situations make negotiations impossible.

Negotiation as a Game?

Books on negotiation explicitly or implicitly treat negotiation as a game or game-like encounter between players. Many of them look only at the tactical elements of the negotiation game. What moves can the party make to maximize her chances of winning?

The game metaphor is helpful if we remember that there are different kinds of games. James P. Carse begins Finite and Infinite Games as follows:

There are two kinds of games. One could be called finite, the other infinite. A finite game is played for the purpose of winning, an infinite game for the purpose of continuing the play.1

Negotiation can be played as a finite or an infinite game, or as a finite game played within an infinite game. When negotiators put highest priority on winning a negotiation encounter, even if winning ends their relationship with the other party, they are playing a finite game. When they treat negotiation as one encounter in an ongoing relationship in which they will win some rounds and lose some rounds, they are playing a finite game within the infinite game of their relationship.

In stable settings, negotiators may choose to focus on short-term tactics: What moves will help me win this negotiation? Or they may choose a mix of tactics and strategies that focuses on managing relationships and problems over a longer time frame: How can I maximize my chances of winning this round while keeping the play (relationship) going so that I might win other rounds?

In an unstable setting, negotiators who try to focus only on the tactical level run the risk of losing even if they win. They may ultimately lose if the instability in their context makes implementing their agreement difficult or impossible. Sometimes the changes in their context turn what looks like victory into defeat. In an unstable setting, the negotiators who understand and respond effectively to the conflicts in their turbulent surroundings can negotiate their own problems more effectively and help bring stability to the larger system. To do this, they must think strategically about more than their relationship with the other negotiators at the table. They need to consider the way their negotiation game is embedded in, influenced by, and capable of altering the infinite game of the social relationships that make up the context in which they live and work.

Why I Have Written This Book

In my work, I find myself in the company of two different groups of people concerned with issues of conflict resolution or transformation. One group, negotiation scholars and professional negotiators, is inclined to think of negotiation as a finite game, even if that game is set inside an infinite game of human relationships. Many of them describe negotiation as if it always occurs in stable settings, with clear rules and boundaries and obvious winners and losers.

The other group, peace activists and peace-builders, is inclined to view negotiation with deep suspicion. Many of them see the world as an uneven playing field on which powerful parties oppress weaker parties. Since weaker parties will inevitably lose the finite game of negotiation, it is better not to play the game at all. Peace will be created by focusing energy on changing the playing field and the rules of play, not by negotiating specific issues or problems with powerful oppressors.

I believe both groups are wrong. Those who treat negotiation as a finite game in a stable context minimize the full complexity of the conflicts that brought the parties to the negotiation table. They may negotiate agreements that put a bandage on deep-rooted and intractable conflicts, thereby creating greater social turmoil. The peace they win in these situations is fleeting at best. Those who think negotiation is always “selling out” to the powerful parties focus on the sources of deep-rooted conflicts, but they overlook the option of negotiating strategically to promote systems of change and conflict transformation. Both groups would benefit from thinking about how to negotiate strategically in unstable settings.

Negotiating strategically in an unstable context involves:

• Focusing on the immediate problems and the longterm relationships between the parties.

• Managing the turmoil in the context and the interactions at the negotiation table.

• Working to bolster or create and sustain the social structure and/or the political will that supports the negotiation process and the agreement reached by the negotiators.

Thinking About the Big Picture

To successfully negotiate problems in the absence of structures that organize and support the negotiation, negotiators must also manage activities that are normally handled in a quiet, routine manner by established institutions. Consequently, they must depend on the goodwill and the support of other parties not at the table to implement and sustain their agreement. No matter how good, fair, creative, and just an agreement is, others will not support it if the negotiators do not consult with and educate them about the agreement. That education and consultation need to start before formal negotiations convene and need to continue after an agreement is reached.

We can think of strategic negotiation as a layered set of interactions that include primary negotiations at the table and shadow negotiations with parties who are not at the table. (See Figure 1 on page 14.) The primary negotiations occur at the core. In the next layer out we find shadow negotiations with parties that have a stak...