“Behind-the-Table” Conflicts in the Failed Negotiation for a Referendum for the Independence of Catalonia: A Student Note by Oriol Valentí i Vidal

By Oriol Valentí i Vidal*

Spain is facing its most profound constitutional crisis since democracy was restored in 1978. After years of escalating political conflict, the Catalan government announced it would organize an independence referendum on October 1, 2017, an outcome that the Spanish government vowed to block.

This article represents, to the best of the author’s knowledge, the first scholarly examination to date from a negotiation theory perspective of the events that hindered political dialogue between both governments regarding the organization of the secession vote. It applies Robert H. Mnookin’s insights on internal conflicts to identify the apparent paradox that characterized this conflict: while it was arguably in the best interest of most Catalans and Spaniards to know the nature and extent of the political relationship that Catalonia desired with Spain, their governments were nevertheless unable to negotiate the terms and conditions of a legal, mutually agreed upon referendum to achieve this result.

This article will argue that one possible explanation for this paradox lies in the “behind-the-table” conflicts on both sides. For Catalan secessionists, this conflict related to the role that unilateralism had to play, if any, in the negotiations with Spain to organize an official referendum for independence. For those against it, most notably the Spanish political parties, the pressing internal conflict concerned the scope of the negotiations that had to be conducted with the Catalan government. These internal “behind-the-table” conflicts blocked an “across-the-table” agreement, leading to a deadlock in negotiations.

This article hopes to contribute to the academic conversation around the barriers to progress in high-stake negotiations, and it suggests that the failure to negotiate an independence referendum for Catalonia reveals the limits of unilateral action in the context of a supranational region like the European Union, the dynamics in negotiations where there is a sharp power imbalance between the parties, the tensions between democratic legitimacy and the rule of law, and the risks of path dependency for negotiated agreements.

Read the full article here.

*Attorney; Lecturer in Law, Barcelona School of Management (Universitat Pompeu Fabra) as of February 2018. LL.M. ‘17, Harvard Law School; B.B.A. ‘13 and LL.B. ‘11, Universitat Pompeu Fabra; Diploma in Legal Studies ‘10, University of Oxford.

Unmasking Masculinity in Negotiation Scholarship

By John Miller

Men and women often experience negotiation differently. In fact, many patriarchal societal inequalities play out during negotiations, particularly when men and women negotiate with each other. Researchers like Linda Babcock, Hannah Riley Bowles, and Sara Laschever, to name just a few, have written extensively about how gendered forces in negotiations act upon women in particular.1 Not only are women held to different standards of behavior in a bargaining scenario, but women are also subject to implicit biases attached to their initiation of negotiations in the first place.2 These gendered attitudes also pervade leadership assessments, dictating that women in command must exhibit some traditionally masculine traits while still maintaining social-expected femininity.3

Once we acknowledge that gender roles are socially constructed, and not biologically inherent,4 we begin to see how women and men are trained to play certain gender roles, deviations from which are met with discomfort and even scorn.5 Invariably, many scholars’ conclusions suggest numerous ways to mitigate the difference between men and women in negotiation outcomes, affording women greater success in negotiations and the benefits that follow.

This line of analysis, and its subsequent conclusions, actually reflects a problem with much gender-based research. In much of the literature on negotiation and gender, maleness is treated as a measuring stick to compare to women’s progress in various positive outcomes. The problems are framed in comparison to male performance, and the solutions are dictated in terms of what women can do,6 or when they mention men at all, in terms of what men should do differently to help women.7 The advice is certainly useful, but it carries the assumption that masculinity is a unitary constant. Gendered research into masculinity has exposed not one, but a multitude of masculinities, acting upon men in ways unaccounted for in gendered negotiation research.8 And many of these masculinities are dominated and subservient to the same organizational patriarchy that feminism seeks to topple.9  The problem I seek to identify is a general disregard of men as anything more than a monolithic control group, considering the vast sociological and psychological evidence to the contrary.

This article will begin by explaining the anti-essentialist notion of multiple masculinity theory as it is currently understood, demonstrating the complexity missing from arguments that assume all men to operate under and happily conform to one definition of masculinity. I will then identify various issues of masculinity in negotiation scholarship that are either unexplored or underexplored, and develop why these issues are so important in the on-going conversation about negotiation and gender. The aim is not to belie the underperformance of women in negotiations, but instead to demonstrate how the dialogue must change to account for a more comprehensive view of masculinity and the forces it exerts upon both men and women in negotiation.

 

John Miller is a second year JD student at Harvard Law School. 

 


1 See generally Linda Babcock et al., Nice Girls Don’t Ask, Harv. Bus. Rev., October 2003, http://hbr.org/2003/10/nice-girls-dont-ask/; Hannah Riley Bowles et al., Social Incentives for Gender Differences in the Propensity to Initiate Negotiations: Sometimes It Does Hurt to Ask, 103 Org. Behav. and Hum. Decision Processes 84, 85 (2007)

2 Hannah Riley Bowles et al., Social Incentives for Gender Differences in the Propensity to Initiate Negotiations: Sometimes It Does Hurt to Ask, 103 Org. Behav. and Hum. Decision Processes 84, 85 (2007)

3 Id.

4 See Ann C. McGinley, Creating Masculine Identities: Bullying and Harassment “Because of Sex”, 79 U. Colo. L. Rev. 1151, 1161-62 (2008)

5 Bowles, supra note 2, at 86

6 See Bowles, supra Note 2; Linda Babcock et al., Nice Girls Don’t Ask, Harv. Bus.Rev., October 2003, http://hbr.org/2003/10/nice-girls-dont-ask/

7 Andrew Cohn, Women and Negotiation: Why and How Men Should Come to the Bargaining Table, 1 Oxford Leadership J. 1, 2 (2010)

8 David S. Cohen, Keeping Men “Men” and Women Down: Sex Segregation, Anti-Essentialism, and Masculinity, 332 Harv. J. L. & Gender 509, 521 (2010)

9 Id. at 522

How Obama Can Be “Tuff” in Syria

By Robert C. Bordone and Alonzo Emery

We haven’t been able to shake the image: 20 year-old Michael Brandon Hill enters a packed elementary school in Decatur, Georgia armed with an AK-47 assault rifle.  He seems determined to make the start of the school year a day of grief, tragedy and death. Amazingly, the school bookkeeper, Antoinette Tuff intervenes by using listening and dialogue to negotiate the terms of peaceful resolution.  The incident all captured during a taped 911 phone call.

When President Obama phoned Tuff to applaud her fortitude on that August day, Tuff alluded to the President’s example, saying to him, “I learned from the best.”

The President could actually learn a great deal from Tuff, especially as he decides how to respond to the Syrian crisis. Although the local community context Tuff found herself in and the geopolitical one faced by the President differ in important ways, essential lessons from Tuff’s harrowing experience can inform how we face this conflict and the inevitable conflicts we encounter in the future.

Build affiliation. At first glance, Hill and Tuff shared little in common. Barriers of race, gender, age, and life station divided them, not to mention the gulf separating a heavily armed man from a defenseless school employee. Still Tuff found a way to connect to Hill’s humanity. Instead of shutting Hill out by building a wall around herself, she did the opposite, saying, “Don’t feel bad, baby.  My husband just left me after 33 years. I am sitting with you and talking with you about it.  I’ve got a son that’s multiple disabled.”

In the face of conflict – and especially in the face of a gunman poised to kill – we understandably forget the humanity of our counterpart and what we might share in common.  At the height of her terror, Tuff built affiliation with her captor, “My mother was a Hill”, that opened Michael Hill to exploring solutions other than gunfire and mass murder.  Although Hill was the proximate cause of the problem that day, Tuff engaged him as a joint problem solver.

Despite the deafening beat of war drums, President Obama might consider how best to listen carefully through the din and use what he learns to build the type of affiliation that can lead to a more peaceful solution. The President can look to ongoing talks with world leaders as opportunities to build affiliation with those who can use their leverage with the ruling Syrian regime.  By avoiding ultimatums and fiery rhetoric, the President can learn from Antoinette Tuff by framing his engagement with other leaders as an invitation to bringing a shared problem to an acceptable end.

Build them a step, build them a golden bridge. There is a common saying in China: “For people to descend from the stage, you must provide a step.”  The allusion is to the stage of conflict and the provision of an exit for its protagonists. Western experts in conflict resolution offer similar advice, using the evocative image of building a golden bridge for your negotiation counterpart to cross to the same side. Without providing the step, without the bridge, parties become entrenched and conflict escalates.

In Decatur, Antoinette Tuff told Hill with astonishing composure: “We are not going to hate you, baby…it is a good thing you are giving up.” Thus, Hill could step down from the heights of conflict and cross a bridge to something that seemed crucially different than failure.

The people of Syria do not enjoy the luxury of time. If there is to be an alternative to direct military conflict, the global community must act quickly to find a step from which Assad and his supporters can descend and a bridge toward something worth saying ‘yes’ to.  As Tuff’s example suggests, this is not an exercise in weakness or a bridge to impunity; rather it is a strategic move to accomplish a limited but critical goal: the end of civilian casualties. In the end, both Hill and Assad must answer for their crimes.

As the U.S. weighs its options in Syria and continues to build strategy to persuade world leaders, President Obama can “learn from the best” in Antoinette Tuff by extracting two valuable lessons from her heroism: Create a sense of affiliation with those influencing the outcome. Build a golden bridge that allows the other to end conflict swiftly. Lessons learned from Tuff might fare as well in Damascus as they did in Decatur.

 

Robert C. Bordone is the Thaddeus R. Beal Clinical Professor of Law and the Director of the Harvard Negotiation and Mediation Clinical Program at Harvard Law School. Alonzo Emery is a Lecturer on Law and Clinical Instructor at Harvard Law School.

 

Thoughts prompted by Mnookin’s Bargaining with the Devil*

Leo F. Smyth**

Bargaining with the Devil, to Robert Mnookin, means negotiating with someone who has intentionally done harm and may well do so in the future: “an adversary whose behavior [one] may even see as evil.” 1  Should one negotiate with such a person or such a regime?  Surprisingly, in this book, the Chair of Harvard’s Program on Negotiation argues that there are circumstances in which the wise decision is to fight the harm-doer rather than negotiate.  But that decision, if it is truly wise, can be made only after a rigorous analysis of the situation.  In this book Mnookin sets out a framework to help in that analysis and illustrates it by reference to eight case histories.  The question posed by the book’s sub-title is stark: when to negotiate, when to fight?

First, I recommend you read this book for enjoyment.  So skilfully does the author craft his case histories from the bedrock of research that the book is that rare thing among works of scholarship: a page-turner.  Second, I recommend you read the book with a pen and paper by your side: there are profound questions here that will give you pause, prompt links to other literatures, and reinforce or challenge your habitual ways of thinking.

Essentially, Mnookin’s framework is a challenge to the negotiator to answer five questions that will make his or her bounded rationality less bounded. 2  Drawing on psychology to show the traps that await our thinking, such as demonization, dehumanisation of the enemy and the blood-rushing call to battle, he makes a convincing case that dealing with a harm-doer puts us all in the domain of bounded rationality. 3  There are other voices too: the call to peace, to an acceptance of shared fault and responsibility, to redemption.  Those voices also need reflection, not reflex action.  Does negotiating with harm-doers reward their behavior and make it likely to recur?  Or will the transformative power of negotiation change the harm-doer’s thinking and moral stance?  These are questions that go to the heart of the human condition.  They are the stuff of theatre and art and philosophy.  Mnookin brings them home to us in the richness of his case histories.  The questions in his framework will be familiar to those who have followed interest-based bargaining over the years – the focus on interests, alternatives, potential outcomes, costs, and prospects for implementation.  Here, they are applied where the stakes are very high: war and peace, injustice and betrayal.  In the political sphere, two of his protagonists are in jail as they make their decision to negotiate or not; two more are in the middle of World War II.  The non-political cases include a family feud, a bitter labor dispute, a business conflict bedevilled by perceived broken promises and, finally, the egocentric quicksands of divorce.

Like all case studies, the lessons learned depend on the prism through which they are understood.  Mnookin nails his colors to the mast in the following key passage: “…you can’t rely on hindsight to know whether you’re making a wise decision.  A wise decision can turn out badly; it happens all the time.  And a stupid decision can have a good outcome; you can be lucky.  So the test of wisdom cannot be whether you’re proven right in the end.  The test is, Did you think it through?” (emphasis in original). 4  This makes sense since unless one adopts a position of ‘always negotiate’ then the decision to fight needs as sound a basis as possible.

As the case histories unfold, one comes to realize just how difficult it is to apply Mnookin’s test in practice.  The story of Anatoli Sharansky, refusing the slightest cooperation with his KGB captors over thirteen years, is remarkable for the way Mnookin teases out Sharansky’s mental processes. 5  Under enormous pressure to negotiate, Sharansky maintained a sense of the inviolability of his personhood and used all the psychological traps – either-or, win-lose, demonization – to support it.  Thoughts, feelings, analysis, all had to be co-opted and rationalized in the service of intransigence.  In human terms it is not hard to see why.  A prisoner in a cell, facing death threats alternated with promises of eventual freedom, subject to ongoing attempts at brain-washing from a cell-mate almost certainly a KGB collaborator, may well feel the need to shut his mind to any data that threatens his resolve.  In the end Mnookin comes to the conclusion that his decision was wise.  I’m not so sure.  Heroic, steadfast, awesome in its courage, yes, but the price of it seemed to be a shutting down of the critical faculty, that very ‘thinking through’ that is Mnookin’s test.  I accept that some decisions have their origin in an intuition beyond logic, but, to my mind, wisdom requires that they be critically evaluated.  In looking at such decisions I tend to think in terms of dissonance: if a protagonist gives a categorical “no” to negotiation, what, I wonder, would be the costs of a “yes” decision on their mental model of the situation.  Will those of us who have not been in Sharansky’s position ever know?

Reading the case histories, readers will bring their own perspectives and conceptual preferences to bear in deciding whether the protagonists passed Mnookin’s test of ‘thinking through’.  They will have a hard time with the case of Rudolph Kasztner, Mnookin’s next case. 6  The hapless Kasztner, it seems to me, was at the opposite extreme from Sharansky – he was not free not to negotiate.  Why?  Because the structure of his predicament was such that he could try to save some Jewish lives in Nazi-occupied Hungary or try to save none.  In discussing the case Mnookin refers to Styron’s Sophie’s Choice 7 where Sophie is given the choice of saving one of her children from death or sacrificing both.

It is clear from Mnookin’s account that Kasztner had a long history as a negotiating fixer and presumably this was part of his habitual way of defining himself.  The cost in dissonance terms of not negotiating would probably have been huge; together with the compulsive quality of the situation, I suggest it was impossible.  It mattered little how implausibly bizarre Eichmann’s demands became; negotiation was still the only game in town, an increasingly forlorn hope – but still a hope – of saving some lives.  Mnookin’s account of the twists and turns of the negotiation is masterful. He reminds us that it is unfair to judge based upon outcomes and knowledge gained after the event; Kasztner had to deal with uncertainty, personal threats and lying opponents.  To be sure, questions could be asked about how much of Kasztner’s knowledge of the situation he chose to share with others; but it is hard to believe that refusing to negotiate would have materially affected anyone’s prospects for survival.  Mnookin’s conclusion that it was not Kasztner but the Nazi regime that bore responsibility for the slaughter seems fair to me.

It is almost with a sense of relief that one turns to Churchill and Mandela. 8  In these cases, not only does Mnookin’s framework come into its own, but those of us who believe in the possibility of reaching wise decisions in the midst of turmoil may find some consolation here.  Again, there is a question of past decisions, personal identity and the dissonance of going against the momentum they create.  Churchill had long seen Hitler as evil and untrustworthy, just as he had a personal identity as leader and defender of the nation.  In addition, he disliked indecision, once saying that he never worried about action, only about inaction.  Consequently, thinking through may have had a high emotional cost for him since it implied delaying a decision.  One suspects Churchill understood very well Hamlet’s observation that ‘…the native hue of resolution is sicklied o’er with the pale cast of thought’. 9  By temperament, Churchill was drawn to the native hue end of the business.  Nonetheless, when pushed, he appears from Mnookin’s account to have passed the test – he thought through the decision whether to negotiate or fight and decided to fight.

It is no surprise that the case of Nelson Mandela is altogether extraordinary.  My very first trip to the United States was to New Hampshire and I was struck by the words on the car licence plates: Live Free or Die.  Those words could easily have been a guiding slogan for Mandela.  Win-lose, either-or, no compromise.  From such a starting point, the very idea of negotiation looks like a betrayal.  And indeed, that was his starting point; but for him the momentum of past perceptions was not a predictor of his decision.  Part of Mandela’s genius was looking to the future, envisioning it and holding that vision no matter how awful, how dangerous, the present circumstances.  Thinking through for him was natural – he once complained that he had more time to think about the future of South Africa when he was in jail than when he was President – but there was little chance of his getting stuck in a Hamlet-like paralysis by analysis.  From his jail cell he moved decisively to initiate negotiations.  The risks were enormous; from the suspicions of his own constituency, to the possibilities of civil war, a military coup or partition of the country.  Only a person of outstanding willpower could have withstood the pressures; only a person of outstanding  personality strength could have brought others with him. Mnookin makes no secret of his admiration, nor do I.

But the Mandela case illustrates another aspect of the ‘negotiate/fight’ decision that I would have liked Mnookin to address more fully.  On the outskirts of Johannesburg there is an apartheid museum.  Even a casual visit there takes three hours in order to grasp the full range of legal instruments, paramilitary force and restriction of freedom  brought together to deny the rights of the majority of the population.  Even with the knowledge that the regime eventually ended, a visit there is a sobering experience.  Like Mnookin, I believe in the transformative power of negotiation. There are examples in his IBM-Fujitsu case 10 where parties that started out with totally unreconstructed win-lose attitudes eventually came to a creative search for solutions, albeit in the shadow of arbitral power.  But there exist parties for whom there is no arbitration or independent court, who dwell in conditions of structural violence; for them, fighting may be essential just to earn the right to a place at the table.  Mandela was no pacifist: he had, when no change was possible, advocated violence against the apartheid regime.  In the early pages of the book, 11 Mnookin investigates the wisdom of President Bush’s decision to invade Afghanistan rather than negotiate with the Taliban.  Guided by a series of questions, he reviews the evidence and the thinking through, concluding that fighting was the correct decision.  Fine. But we must allow a similar rationality to the dispossessed, accepting that they too may conclude fighting is the correct decision.

Clearly, this line of reasoning is fraught with danger.  Many governmental and nongovernmental groups may claim to have thought things through and now feel authorized to practise violence.  In outlining his framework Mnookin discusses the possibility of using coercive force and points out that it requires legitimacy. 12  But the full import of this point is blunted by his inclusion of lawsuits, strikes and lockouts in the list of coercive means.  Such things are coercive but are different from violence.  Lawsuits, strikes and lockouts are situations of high drama, huge emotion and easily entrenched thoughts of win-lose.  But they are not normally accompanied by serious violence to the person.  The decision to pursue such violence Violent action needs a particularly strong legitimacy.  The costs in terms of human misery and the torn fabric of society may be incalculable.  So, while defending the right of the dispossessed to adopt violence I would suggest adding some proviso like ‘where there are no political, legal, constitutional, diplomatic or other non-violent means of achieving a just outcome’.  Absent all of these, bargaining appears to be impossible, as it once did to Mandela; and those who believe in the transformative power of negotiation must direct their efforts to influencing the power-holders, that the conditions for non-violent engagement may be brought about.

Even adding a blanket proviso may not be enough.  The presumption in favor of negotiation needs to be strengthened and Mandela’s example does that.  When, from prison, he made the first negotiating approach, not much had changed in the apartheid regime.  International sanctions were hurting, yes, but practically no one would have conceived it possible that the white minority would soon agree to majority rule.  Mandela’s initiative flew in the face of any rational calculation of the odds.  It seems to have originated from, and hoped to engage, what Lederach has called the moral imagination, “the capacity to imagine ourselves in a web of relationships that includes our enemies”. 13  There are other examples where those dispossessed of all else have not been dispossessed of this; and it too needs to have a place in the thinking through.  Mnookin, I think, would not disagree.

The transformational power of negotiation is beautifully illustrated in Mnookin’s non-political cases.,  The IBM-Fujitsu case is fascinating for its first-hand account of the very unusual blending of arbitration and mediation. 14  As it became clear during the bargaining process that resolving intellectual property disputes in technical terms was well-nigh impossible, the meaning of success switched to finding some other way of making progress.

Transformation doesn’t always happen.  The divorce case 15 is sad because the attempt to get the party to think through her interests fails.  Perhaps there was a fantasy that a judge would deliver a blow to the former spouse that the protagonist herself could not.  Perhaps such fantasies in divorce cases need further investigation.

The final case, of a family disputing their father’s will, 16 has a happier outcome.  It is notable for the risk Mnookin took in putting the focus on the relationship rather than the substantive issue of property.  This is a perennial chicken-and-egg question: does improving the relationship facilitate substantive agreement or does engaging on substantive issues engender grudging respect?

I think that, sooner or later, the questions Mnookin asks will force us into a discussion of fundamental human rights.  This is implied in his dealing with the limitations of the cost-benefit analysis approach 17 and in the book’s final endnote 18 in which he ponders the possibility of a deal with the Taliban that would guarantee US security in return for the strict application of Islamic law, including the effect this would have on the rights of women.  Such questions are among the greatest challenges of our time, and one hopes the author will return to them in a later work.

On reaching the end of the book, Mnookin says his goal was not to offer easy answers but to help us think more clearly about negotiating with those who do us harm.  In this goal he has succeeded handsomely and given us a book to return to often, to pause with open page, and think.

* Mnookin, R.,. Bargaining with the Devil. New York. Simon & Schuster (2010).
**Adjunct Professor in Management, J.E.Cairnes School of Business and Economics, National University of Ireland, Galway. He can be contacted at leo.smyth@nuigalway.ie
1 Bargaining with the Devil at 1
2 Id. at 27-32
3 Id. at 18-21
4 Id. at 104
5 Id. at 36-49
6 Id. at Chapter Four
7 Styron, W., Sophie’s Choice. New York. Vintage (1979).
8 Bargaining with the Devil Chapters Five and Six
9 Shakespeare, Hamlet Act 3, Scene 1
10 Bargaining with the Devil Chapter Seven
11 Id. at 2-3 and at 6-8
12 Id. at 29
13 Lederach, J.P., The Moral Imagination. Oxford. Oxford University Press (2005).
14 Bargaining with the Devil Chapter Seven
15 Id. at Chapter Nine
16 Id. at Chapter Ten
17 Id. at 263
18 Id. at 306

Power Differentials in Negotiation: Don’t Let ’em Push You Around

knight-queenBy Stephen Frenkel

Participants in MWI’s Collaborative Negotiation Trainings often ask how they should handle significant power differentials. Most frequently, this question is asked by those who perceive themselves to be in a position of lower power. “A collaborative approach is all well and good,” they say, “but what happens when the other side doesn’t need to buy into that approach because they have the upper hand?”

My first approach is to challenge them on the assumption that they have little or no power in their negotiations. Negotiators often see the “grass as greener on the other side” and, in our experience (having worked with both sides of the table), we find negotiators most often buy into the false assumption that they are the more vulnerable party.

It’s essential to point out that, even if one party has less power by certain standards (resources, level of influence, etc.) they still have some power which can be leveraged. When we consider that the entire purpose of a negotiation is to create and extract as much value as possible from the combined experience or resources of all players, this becomes more apparent. After all, if either party could go it alone, why would they be negotiating with each other in the first place? They’re negotiating because they need each other (or could at least see the possibility of benefiting from each other) in some form or fashion. In other words, they’re already aware that the value that can be created between them is greater than the value they can create on their own.

Our challenge is to make this understanding explicit. We must confirm that both parties recognize the value of taking a collaborative approach to negotiating and, through this confirmation, incentivize them to continue conversations in a productive manner that enables both parties to benefit from the interaction. We build our capacity to do this through systematic pre-negotiation preparation that takes the following into account:

Effective preparation begins with an analysis of your and their Interests (i.e., their needs, concerns, goals, and fears). Define what’s important to them and ask yourself – how does working with you meet those needs better than working with any of your competitors? Though many choose to focus on price, I’d caution you against this. Price wars tend to do little but drive down the bottom line for your entire industry and train your negotiating counterpart to threaten to walk so you’ll give in. Rather, shift the focus to the other matters that are important to them: customer service, access, time to market, quality of product or services, payment terms, and other tangible or intangible aspects of the deal that make up the total value of the arrangement.

It’s vital to find out what’s important to your counterpart and to articulate, however you can, how you meet those needs better than anyone else they might work with. This is essentially your value proposition. In this way, you make yourself as indispensable as possible and limit their power as they realize that they need you as much as you need them or that they benefit more from your involvement and contribution than from anyone else’s. You’re no longer a “commodity;” you’re a rare exception that brings more value to the partnership than anyone else in the field.

Second, at the same time that you’re articulating your value proposition to them and therefore limiting the attraction of their Alternatives (i.e. what they’ll do to meet their needs if they don’t come to agreement with you), you should be researching and improving your own Alternatives. Who else could you meet with and work with that would satisfy your Interests as well as your counterpart can? Unfortunately, in instances such as business development in which you’re already pursuing other business regardless, Alternatives seem limited. In these instances, you can’t necessarily find a replacement (as you could in a negotiation over a car). Admittedly, however, should you happen to win all other business pursuits, you become much less “desperate” for theirs.

Knowing how you define success, and what you’d do if you don’t reach agreement, can prepare you to walk away if the proposed outcome does not meet your needs. Furthermore, if they’re pushing unfavorable terms (such as unreasonable risk or liability without appropriate rewards), knowing you have the Alternative of walking away and turning down business that’s potentially harmful to you can be empowering in and of itself.

This brings us to our third source of power in negotiation – Objective Standards. Objective Standards are benchmarks, industry norms, precedents, and other ways that negotiators determine if an idea or potential resolution is fair. Researching Objective Standards and raising them at appropriate times can protect you from susceptibility to unreasonable requests. You should know what’s fair – as determined not by you or your counterpart, but by others – your industry, laws, expert opinions, and other facts aren’t capable of being manipulated by either you or your counterpart. Understanding what’s fair and reasonable and having the capability to inform yourself and your counterpart on what’s “reasonable” is a source of power.

In conjunction with the Objective Standards you raise, it’s important to Communicate your level of Commitment and the consequences for them and for your Relationship should they try to coerce you to accept unfavorable terms. Help your counterpart take a long-term view, pointing out the short-term benefits of their taking advantage of their power as well as the long term consequences – which can include but are not limited to: a damaged relationship, your looking to extract value elsewhere in the process, both of you developing a damaged reputation for business in your industry, etc. It’s important for your counterpart to realize that a bad deal for you is essentially a bad deal for them.

Once it’s clear that you’re interested in a deal that’s fair, reasonable, durable and sustainable, together you can generate the Options that satisfy both of your needs. Your success depends not only on your ability to prepare for the negotiation and to execute it effectively, but also on your ability to engage with your counterparts and to educate them on the value of taking a collaborative approach. Securing a commitment from your counterpart to negotiate collaboratively is a critical first step in dealing with perceived power imbalances. Negotiations should be viewed as an opportunity for sustained partnership generation and long-term value creation. Failing to persuade your counterpart to negotiate collaboratively with you will result in outcomes that are based not on the strength of your combined ideas, but rather on who can exert more power over the other. Whether either of you realize it at the time or not ,this results in multiple casualties over the long-term.


Stephen Frenkel is the Director of Negotiation Programs at MWI, a negotiation training and consulting firm based in Boston, Massachusetts. Stephen can be reached at sfrenkel@mwi.org or at 800-348-4888 x24. More information about MWI can be found at www.mwi.org/negotiation.

Originally published to HNLR Online on Oct. 21, 2009.

Communication 2.0: The Perils of Communicating Through Technology

Think of all the ways our lives have been made easier and more efficient with technology.  With just the click of a button (or a mouse), we have the world at our fingertips.  Communication alone has changed drastically over the past decade (for the better, right?).  Besides face-to-face meetings and phone calls, we have email, instant messaging (IM), text messaging, eNewsletters, blogs, list-servs, online forums and threads, virtual reality, webcasts and webinars (and more that I’m not aware of, I’m sure) that enable us to keep in touch.  Just a short time ago our primitive ancestors communicated via fax, courier and (gasp!) snail mail.  Life really has gotten easier.

Or has it?

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The Self-Fulfilling Prophecy: The Value of Empowering Your Counterparts to Collaborate

Businessdictionary.com defines the Self-Fulfilling Prophecy as “[E]xpectations about circumstances, events, or people that affect a person’s behavior [such that] he or she (unknowingly) creates situations [that fulfill] those expectations.”  In other words, your predictions about a situation (and therefore how you act in that situation) will cause those predictions to come true.

But what does this have to do with you as a negotiator?  More than you think.  In a typical negotiation with at least two partners per side, your beliefs about them, and what you anticipate from them, will influence your actions, which will in turn influence their reactions.  When your counterparts on the other side of the table are in disagreement with each other, they look to you to confirm or disconfirm their various hypotheses.  Therefore, your actions inevitably and directly prove one side correct and the other incorrect, thereby empowering one faction over another, influencing their behavior and completing the cycle of self-fulfilling prophecies!

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Reporting on Palin: Negotiations in Political Theater

By Erin Ryan

Ever since Sarah Palin’s selection as John McCain’s vice presidential running mate, the McCain campaign has engaged in a cut-throat, high-stakes negotiation with a uniquely hamstrung counterpart—the news media. Or at least, that’s how it would appear to a skilled negotiator, given the unmistakable hard bargaining tactics the campaign has regularly employed. Extreme demands, psychological warfare, bluffing, stonewalling—each day yields another expert recitation of classic bargaining tactics that you might expect to encounter while shopping for a used car, though not so much in an election that should epitomize our civic ideal of consensus-building in the marketplace of ideas. But here we-the-people are, stuck on the seamy sidelines of a used car lot, watching the campaign and the press throw down.

It’s not your standard wheeling and dealing, to be sure, but it’s a negotiation nonetheless. What are they bargaining over? Like all negotiations, it’s about what the parties want from one another. The press wants a good story, of course, within the bounds of maintaining public credibility. The campaign wants favorable press coverage for its candidates, hoping to generate public credibility of its own. So it has been since campaigning began. But in this election, the McCain campaign has perfected a slowly developing twist in the game, pursuing a new bargaining strategy with ruthless message discipline at the expense of credibility for all involved. The campaign would still like favorable press coverage for its vice presidential candidate, of course, but if it can’t have that, its secondary aspiration is to undercut the legitimacy of what unfavorable coverage it receives—and with it, the legitimacy of the news media in general. Since Palin’s debut, the campaign has chased this second goal with even greater vigor than the first, leaving us to wonder whether it is not the second-best thing at all, but what the campaign really wanted to begin with. (Witness the artistically orchestrated spectacle during the convention, in which the speakers rallied tens of thousands of delegates to boo the members of the media among them covering the event for the tens of millions of viewers watching it all happen on live TV.)

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