The art of negotiation

Dr. Ruwantissa Abeyratne

PROBLEM SOLVING: Negotiation is the process whereby interested parties resolve disputes, agree upon courses of action, bargain for individual or collective advantage, and/or attempt to craft outcomes which serve their mutual interests. It is usually regarded as a form of alternative dispute resolution.

However, the process of dispute resolution is distinct from negotiation, as methods used in dispute resolution are mostly peremptory, sometimes even leading to violence or even war. Ordinarily dispute resolution practitioners do not usually resort to such extreme measures since violence rarely ends disputes effectively, and indeed, often only escalates them.

One recalls the statement by Josef Stalin where he stated that all problems emanate from man, and without man, no problems would ensue. Hence, according to Stalin, violence could theoretically end disputes, but unhappily, a natural corollary to this solution could be the very end of life itself.

The term negotiation implies interaction between at least two parties who share a common need which they do not share with others. At the outset, therefore, parties to a negotiation must identify that common need. Negotiation is necessary because the parties disagree on a key issue, since if they agree, there is no need for negotiation.

A typical negotiation is a process through which the parties build on common interests and reduce differences that they might have. A successful negotiation is achieved when those differences are settled to the satisfaction of both parties.

Therefore, if one party wields sufficient power over the other and imposes all of its conditions, there would be no negotiation. The term 'negotiation' must be distinguished from 'bargaining' as the former refers to transactions which are complex, dignified and take more time.

Dr. Dennis A. Hawver summed it up well when he said: "we bargain for a carpet, but negotiate a long term loan from the bank". A bargaining strategy is usually used by one party who has the balance of power stacked in his favour.

Nature of issues

Key factors that would influence a negotiation are the nature of issues at stake, the relationship between the parties, the type of parties involved, the time available for negotiation and the balance of power.

The issues at stake are the most critical factor and typically, the more one increases one's demands the more the other will also increase his demands. This necessitates a "give and take" approach which will inevitably result in one losing and the other winning. Therefore, the parties will need to arrive at a balance of interests if they were to end up with a win-win situation.

Skilled negotiators are those who approach their negotiation by demonstrating a cooperative attitude from the beginning of the negotiations. This spirit of cooperation must be demonstrated both by words and actions to bring out an initial affability of the other party. One way of ensuring this environment is to start with issues which lend themselves easier and better to problem solving.

The more difficult problems should be kept for later. More importantly, it is advisable to build firmly on the foundation of common ground before moving on to address differences. Common ground is established for instance, by reminding the other party that both parties must not forget what brought them to the table in the first place.

There is also the possibility that a skilled negotiator will face an inexperienced negotiator who is unable to decipher the difference between bargaining and joint problem solving. In this case, it will not be imprudent for the skilled negotiator to gently 'educate' the inexperienced one and place the negotiations on the right track.

Leading by example is another way in which a skilled negotiator can guide others at a negotiation. For instance, by listening attentively and speaking only when necessary, the skilled negotiator can show the others the virtues of listening. Complimentary words are positive tools for successful negotiation, provided they compliment conduct rather than personalities.

An example is "we are glad you are willing to review the issue" rather than "you are indeed wise to review the issue" or simply, "you are wise."

The willingness to forego an obvious advantage in the interests of the other party will be appreciated, as much as the constant endeavour to exploit all advantages will not be appreciated. This is as important as helping the other party to solve its problems with examples of one's past experience and allowing the other party to save face.

A statement such as "we see that you have come to this table after giving careful consideration to the issues" is a good face saver. However, if the other party uses unproductive tactics, the skilled negotiator does not hesitate to express disapproval, again against the tactics and not against the person.

Extreme measures and tactics, such as leaving the room, should not be sudden, but be preceded by words such as "if you persevere in taking this attitude we will leave the room".

Mutual solutions

The cardinal principle of negotiation is to start with an open mind and seek mutual solutions based on mutual interest. Therefore, if one of the negotiators were to make known an immutable position prior to the commencement of the negotiation, the other would have to negotiate within the umbrella of that position.

It becomes even more complicated if one party were to attach a condition prior to a negotiation and the other were to retaliate, also prior to the negotiation process, disagreeing with the stated position of his counterpart.

This approach leaves little room for starting with a clean slate unless the negotiators agree to set aside all previous positions and discuss mutual interests. This by no means implies weakness and relenting on the part of either negotiator but rather ensures an initial atmosphere of trust and mutual respect.

There are various approaches to negotiation. One is called "advocacy negotiation." In the advocacy approach, a skilled negotiator usually serves as advocate for one party to the negotiation and attempts to obtain the most favourable outcomes possible for that party.

In this process the negotiator attempts to determine the minimum outcomes the other party is or parties are willing to accept, then adjusts his demands accordingly. An advantage of the advocacy approach is that a successful negotiation can ensue as the negotiator is able to obtain all or most of the outcomes his party desires without driving the other party to permanently break off negotiations.

Although the traditional view of negotiating has monotonously been regarded as a win-lose process, where one person gains results from another person's loss, the current approach to successful negotiation is the "win-win" method where all parties gain something of value for themselves.

Therefore, agreement often can be reached if parties look not at their stated positions but rather at their underlying needs. The powerful role of negotiation in resolving disputes in personal, business and international relations can be driven by determining the direction a negotiation takes.

It is incontrovertible that all parties benefit from such a negotiation process which also yields more successful outcomes than the adversarial "winner takes all" approach.

Simple philosophy

The win-win approach was developed in the early Seventies, when practitioners and researchers developed the simple philosophy of the value attributed to looking behind positions for interests and inventing options before deciding.

This mutual gains approach has been effectively applied in several scenarios of negotiation, in particular to environmental situations as well as labour relations where the parties frame the negotiation as "problem solving".

The newest frontiers in the field of negotiation involve such mind searching areas as exploring the role of emotions in negotiation, suggesting that negotiations need not be at the mercy of emotions; but could nonetheless apply core concerns that anyone can use to stimulate helpful emotions.

There are traditionally accepted phases of negotiation, the first being preparation and planning where one should gather facts about the other party, learn about the other party's negotiating style and anticipate other side's position and prioritize issues.

To ensure a smooth negotiation, one should also prepare alternative proposals and establish what is called BATNA (the Best Alternative To a Negotiated Agreement), which is the course of action that will be taken by a party if the current negotiations fail and an agreement cannot be reached.

One of the key considerations of this approach is that if the negotiations seem to be offering a negotiator less value than his BATNA, there would be little point in proceeding further. It is therefore quite important that, prior to the start of their negotiations, the parties should have ascertained their own individual BATNAs. Of course, the most ideal case is to come out with a win-win outcome for both parties.

The second phase involves strategy during the negotiations where one should firmly state his position and explain his interest based on need. This should be followed by actively listening for facts and reasons behind other party's position and exploring underlying needs of the other party. If conflict exists, a skilled negotiator would try to develop creative alternatives without losing the win-win focus.

Then comes the moment of truth, where both parties present their starting proposal. Typically they listen for new ideas, think creatively to handle conflict and gain power and create cooperative environment.

Once agreement is reached, both parties formalize their agreement in a written contract or letter of intent. The last step in a successful negotiation involves reviewing the negotiation, which helps one to learn the lessons on how to achieve a better outcome. Therefore, one should take the time to review each element and ask oneself, "what went well?" and "what could be improved next time"?

Tactics

The key word to any negotiation is "tactics". These range from presenting demands made peremptorily at the negotiations (this must be done only from a position of advantage); setting deadlines; having the good guy and bad guy in the same party; feigning limited authority; caucusing; walking out (again to be exercised at a point where the walkout would leave the party destitute of a way ahead); concession patterns; high-ball/low-ball; intimidation (when one can show strength); fait accompli (what's done is done); and take it or leave it. These tactics should be used selectively.

Tactics should not be confused with strategy, which should pervade any negotiation. Strategy should vary from the chief negotiator to the other members of the team. The chief negotiator is the key to the discussions and is likened to a general at war.
In the words of the Huainan masters, "a general must see alone and know alone what others do not see and know what others do not know. seeing what others do not see is called brilliance, knowing what others do not know is called genius. Brilliant geniuses win first, meaning that they defend in such a way as to be unassailable and attack in such a way as to be irresistible." Another strategy for negotiation is found in the tradition of Tao-te-Ching, which says: "a skilled attack is one against which opponents do not know how to defend; a skilled defence is one which opponents do not know how to attack.
Therefore, those skilled in defence are not so because of fortress walls" Perhaps one of the most effective strategies has been enunciated by Sun Tzu (also known as Master Sun) who said: "use anger to throw them into disarray; use humility to make them haughty; tire them by flight; cause division among them; and the formation and procedure used should not be divulged beforehand; attack when they are unprepared and make your move when they do not expect it."

The overall philosophy of successful negotiation must lie in the principle that when one negotiates, and if one is winning, one should wrap up the negotiations and not prolong them, because if the negotiations are prolonged, it is wining team that gets tired quicker and runs out of resources sooner.

Sun Tzu, in his classic The Art of War, offers one of his most compelling strategies which says: "appear where they cannot go, head for where they least expect you"."
The element of surprise throws even the most skilful negotiator off balance and is a tried and tested strategy. The ultimate strategy is however, to win a war without actually going to battle, which, translated into civilian terms means one must avoid confrontation if at all possible. Also, it is wise to give a way out to those who are in a compromising situation.
Finally, the true secret of making skilled negotiators lies in a wise political leadership which treats people with benevolence, faithfulness and justice. As Zhang Yu (Sung Dynasty, 960-1278) said, if people are treated in the above manner, they will be of one mind and will be glad to serve.

Taoist wisdom recognizes that deep knowledge is to be aware of disturbance before disturbance, to be aware of danger before danger, and to be aware of destruction before destruction.
