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ANATOMY OF NEGOTIATION
by Charles B. Parselle
If war is continuation of diplomacy by other means, then negotiation is war waged with kisses.
Negotiation is work. Negotiation means business, literally. The word derives from the Latin neg = not, and otium = leisure; it is not leisure. The dictionary definitions are: 1. To deal or bargain with another or others. 2. To arrange for or bring about by discussion and settlement of terms. 3. To manage: transact: conduct. 4. To move through, around, or over in a satisfactory manner.
Negotiation theory tells us that there are, broadly, two types of bargaining. These are called (1) distributive, (2) integrative. These words do not well describe the process, but they are commonly used in negotiation terminology.
Distributive Bargaining takes place where there is a fixed amount or quantity to be divided between the parties. If a larger share is distributed to one party, then a smaller share is distributed to the other party. So any gain on the part of one side is met by a perceived loss on the other side. In a traffic accident case, whatever the defendant must pay is a loss to that defendant; the more the plaintiff is paid, the greater his perceived success. One side’s gain is the other side’s loss. This is called negotiating shares of a fixed “pie.” It is competitive, not cooperative.
Integrative Negotiation is conceived of in a different way. Here, the “pie” is not conceived as being a fixed quantity. Often, in business negotiations, for example, parties will brainstorm with each other, more cooperatively than competitively, in order to discover ways in which each can benefit more by the relationship, than if they decide not to do business. Here, the endeavor is to explore underlying interests and needs, and discuss ways in which each side’s needs and interests can be met cooperatively to the benefit of both.
This effort to “expand the pie” can sometimes be done in distributive bargaining as well. For example, it is not always just about the money. Sometimes, a party wants something valuable to him, of no great concern to the other side. In a partnership breakup, one of them was extremely concerned that she keep the five cats that they had cared for together – after the other party was persuaded not to use this as a bargaining chip, but simply to make the concession graciously, she was then rewarded by the gratitude of the first one, who was then prepared to make a significant concession of her own.
If parties can be persuaded to explore creative ways of satisfying each other’s interests, in order to achieve resolution, they and the mediator will find this a most rewarding exercise.
People negotiate in different ways. Some analysts like to classify them into poker players versus chess players. A poker player hides his hand, seeks to bluff and deceive, and often is only willing to discuss dollar numbers, and disdains to discuss issues, concerns or underlying interests. Chess players, as the game itself suggests, lay everything on the board, and although strategy is of course possible in chess, it is not possible to hide any piece. Chess is a game of analytical skill, and though great chess players also engage in emotional gamesmanship, it is easy to see that there is a fundamental difference between a poker style and a chess style.
It may be difficult when a poker player runs into a chess player. The process of negotiation itself becomes more difficult because of those very different styles. The mediator has to mediate the different styles of negotiation, in order to keep the process moving along. However, it is well to realize that these two descriptions, poker and chess, are just metaphors for what goes on in a conflict between human beings, whether expressed in the legal arena or not.
Negotiators are on a continuum from very competitive to very cooperative with those in the middle displaying both qualities. Studies show that within each of these various styles, some negotiators are effective and some ineffective. [Dispute Resolution and Case Studies, pp. 143-147 (1999)]
In real life conflicts, we are dealing with real or perceived wounds, slights, insults, losses, injuries and damages, and each such conflict has a history, which can be expressed in four different ways: (1) One party’s objective perception of what happened; (2) That same party’s subjective reaction to what has happened; (3) The other party’s objective perception of what happened; and (4) That party’s reaction to the events. While chess and poker are taken extremely seriously, they are both games that do not generally involve the kinds of injuries, losses, betrayals, wounds and slights that are the common stuff of conflict.
Sometimes, people are quite unable to change their minds. That is why many people say: “Let the judge decide, let the jury decide, let an arbitrator decide.” They cannot bear to let go of a position, and it is important to realize that when a person takes up a position – “I will take $100,000.00 and not a penny less” – that bald statement of position is fortified, supported and buttressed by a whole array of intellectual arguments and emotional convictions.
This process can be described metaphorically as a valley surrounded by hills, with broken terrain, strewn with boulders and rocks, some trees and other vegetation, with a clearing in the middle set up as a boxing ring. At first the parties take up their positions on opposing hills, and shoot at each other. Then they come down into the valley, and each takes up a secure position. One makes a dart towards a boulder that provides cover, while the other takes up a position behind a tree. Each position is given up unwillingly; each is fortified with emotional convictions and intellectual arguments. By a series of moves, large or small, the parties gradually approach the boxing ring in the middle of the valley. Finally, each climbs into the ring. This is the Zone Of Possible Agreement. To reach the ZOPA, they have already passed through several zones, namely:
1. Unwillingness to move from a fixed position; expressions of righteousness and blame.
2. Talking to self, inward musing.
“I am a very foolish, fond, old man…” King Lear
3. Consideration of what worse might befall; this is focused attention on the Best Alternative To a Negotiated Agreement (BATNA).
“I am in blood stepped in so far that should I wade no more,
Returning were as tedious as go o’er.” Macbeth
4. Recognition of commonality with others; for many people, this is a great leap forward.
“I eat with bread, like you, feel want, taste grief, need friends.” Richard II
5. Offers exchanged that are “out in left field,” “out of the ballpark,” “in the wrong zip code,” that are perceived not as credible but ridiculous, even insulting. This is a dangerous moment; the skill of the mediator at this point is to keep things moving. One party makes a move that the other side perceives as unreal, and therefore as not an offer at all.
6. Offers that are within some range of credibility, but not perceived as reasonable.
7. Offers perceived as not unreasonable, but not within the Zone Of Possible Agreement
8. ZOPA; once the parties have reached this stage, it is more than likely that they will achieve resolution of their conflicts. This entire process may take place in as little as a couple of hours (and not all parties go through all stages), or it may take days or months or years.
The gap between 75 and 50 represents the ballpark, the zip code, the ZOPA. From this point onward, the parties can go for closure. However, do not assume this is the easy part; often, it is the most difficult. The last few yards may take as much effort and time as the first few miles. This is the 80:20 rule at work: 80% of the result is achieved in 20% of the time, and conversely, the last 20% takes 80% of the effort.
In practice, it will be found that some negotiations are singleissue, and that it is not possible to get to the underlying interests because there are not any. Also, where parties have a dispute to resolve before they can go on their separate ways, they are generally more interested in zerosum bargaining. But where the relationship between the parties must necessarily continue into the future, or where the preservation of the relationship is an important factor in the negotiation, it will be found that multiple interests may be brought into play, in order to fashion solutions broadly satisfactory to everyone.
Before people can even embark on a problemsolving mode, they need to spend time on two other factors: (1) how to position themselves in the negotiation so that they are taken seriously, and (2) how to get the other side into a position of being willing to cooperate in a problemsolving endeavor.
There are five assumptions that are often expressed in the ideal world, which are not necessarily found at all in the real world. They are (1) focus on the problem (2) figure out what you really want (3) be willing to engage in a mutual tradeoff negotiation (4) people will operate out of enlightened selfinterest (5) creative ideas carry the day.
It is not always possible to focus on the problem until a very considerable way into the negotiation. Parties come to negotiations with unspoken wants and expectations. Negotiators have established ways of doing things, which may conflict. People have certain standards of conduct that are unarticulated even to them. There are power differences between parties, which make it difficult for the parties to be honest and forthright with each other.
Parties are not always clear about what they want. Their goals may change during the course of the negotiation, as different facets come to light. When people focus on a particular situation intensely over a period of time, their attitudes can undergo considerable change, it also means that their desires and wants may change as well. The parties may not always grasp the scope and implications of the situation that they are in.
Willingness to negotiate is a great thing, but it can itself be a problem unless both parties arrive at the point of being willing to negotiate at the same moment. If one party is willing to negotiate but the other is not, the first party feels not only at a disadvantage but her overtures may be rejected.
Parties may, and usually do, act out of their own perceived selfinterest, but the phrase, “enlightened selfinterest” is highly ambiguous. What is meant by enlightenment, in the context of the negotiation? Creative ideas would carry the day if rationality prevailed at the bargaining table, but it does not always do so. Feelings, attitudes and emotions intrude, as well as remembered slights and personal preoccupations.
There are all kinds of hidden needs, wants, preoccupations, concerns and the assorted baggage that is generally hidden from view, not only to the mediator but also to the other party, and even to the party herself, that get in the way of the process of getting to “yes.”
The mediator having developed her existing faculty of emotional intelligence soon comes to recognize that something else is going on; this is the subject of shadow negotiation.
A shadow is something that follows you around. It gets in the way. It is everything that isn’t being said. It is what is really going on, getting in the way of what should be going on. Whatever is not on the table is under the table. Most people in most negotiations spend most of the time groping under the table, trying to come to grips with it. It is the shadow. Lots of people make lots of money explaining to other people how to deal with the shadow. Carl Jung spent his career writing about it.
“Each of us has an original, you see, living somewhere underneath the shadow of our daily life. That life we live in the moving world is the dream life of the copy.” Four Souls: Louise Erdrich
This baggage train that is carried by nearly everyone into every negotiation constitutes a shadow negotiation, that continues sidebyside and simultaneously with the “real negotiation,” and is generally more important. Often the real negotiation cannot resolve until at least parts of the shadow negotiation have been resolved. The parties in a negotiation are in a relationship with each other, if only by virtue of the negotiation itself, and often by virtue of what has previously happened between them, and all these “shadows” are being negotiated at the same time as they try to solve what is perceived to be the difficulty between them.
During the course of negotiation, each party may additionally be negotiating with himself or herself. Parties secondguess themselves; they are overly optimistic or unduly pessimistic. They may sell themselves short. They may be unduly belligerent. They may be too talkative or not talkative enough. They may constantly get in their own way. There may be power imbalances that are almost impossible to negotiate, in the sense of ensuring a level playing field.
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