Anything can be negotiated. There are no concessions, only exchange and everything is business. A little child can negotiate with their parents or with a teacher, and these skills evolve as we grow up. There are many types of negotiation and there are many negotiating skills for each occasion. Talented negotiators know how to identify different types of negotiations, the diversities of the parties, the diversity of power among parties and the right skills for escaping dead-ends.
The best-seller book Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher, William L. Ury and Bruce Patton, argues that people must be separated from the problem at hand. It stresses focusing on interests rather than positions, finding win-win options, using objective criteria and, finally, what it calls the Best Alternative To a Negotiated Agreement (BATNA).
These principles can work in domestic negotiations but also in international negotiations, even where parties are from completely different cultures. In alternative dispute resolution (ADR), like mediation, they can serve neutral third parties exceptionally well, especially in cases with parties that have little in common and rely on the mediator’s personality for guidance.
While negotiating, we must consider and follow a specific structure and process. I would argue that, in negotiations, we commonly encounter five strategies: the allied strategy, the competitive strategy, the compromise strategy, the concession strategy and avoidance. For neutral third party, there are two stages to these structures:
- The preparation stage, during which we collect information about the parties, we identify the parties’ interests and positions, identify the BATNA, formulate the core of the negotiation, and design strategies.
- The engagement stage, when the parties sit at the negotiating table, during which the direct communication with the parties takes place, techniques are applied, negotiation styles are chosen, power and influence are identified and finally the parties’ psychology is considered.
A neutral third party – a Mediator, Arbitrator, Conciliator – should not forget that all parties are humans, including the representatives of the legal persons. Humans face human problems and these problems may be the real crux of any dispute. It is difficult to solve disputes, without identifying the real issues at stake. These issues – by which I mean the real and underlying interests of any dispute – are influenced by the parties’ natures, their culture, their social background, their education and all the factors that constitute behaviors and personalities.
Since negotiators are, by and large, also humans, they also, as parties, have feelings, principles, culture, pasts and options. Humans are also unpredictable and unanticipated actions may lead to destructive or beneficial outcomes in any negotiation.
Thus, no negotiation can succeed unless the human disputes are resolved first. Without overcoming basic misunderstanding or anger can be softened, parties are unlikely to resolve their fundamental differences.
Human disputes, as a psychologist might say, match three basic categories. Any negotiator worth their salt should recognise:
- Perceptions. How are the human parties thinking? Dispute may be based on misconception rather than facts. Perceptions are subjective, based on the cultural, educational and social status of each party. Negotiators should train the parties, explain to them each issue and be patient.
- Emotions. Feelings can be more significant than words. There is always interaction between parties, since one party’s emotions influence the others’. Fear and insecurity cause anger, in turn breeding more fear, in a vicious circle. Good negotiators know how to discharge emotions and help parties feel relaxed.
- Communication. Misunderstandings demand better communications. Communications are difficult when cultures are different. For instance, body language or gestures that have different meanings to different people.
How should human disputes be resolved? Good advice includes, actively listening in depth, speaking in an understandable way, leaving silences, not interrupting parties and asking the right questions when needed. There are magic words that may unlock mental doors. Try using phrases like: “I understand how you are feeling…”, “What is your understanding…”, “I would like you to share your point of view…”, “Tell me about your background, beliefs and customs…”, “You can fully confide your personal thoughts in me”, or “You can feel relaxed that what you say will remain top secret…”
Key behaviors need intensive attention, like creating trust and relationships with the parties, showing empathy but not sympathy, constantly adjusting the negotiation style, dealing with dead-ends and emotions, focusing on interests and not positions, managing power imbalances and, when needed, taking a break.
Remaining to the most crucial issue of identifying the parties’ interests, not their stated positions. A very common example of this is the struggle over an orange. One party wants to make juice and the other only wants the peel for making sweets. Regardless of the arguments the parties make for why they deserve the whole orange, there is an obvious win-win solution. A qualified third party should examine the difference between each party’s positions and their interests.
Qualified negotiators identify all parties’ BATNA. Each party should realise what is their own best alternative, if negotiation were to succeed, as well as their Worst Alternative To a Negotiated Agreement (WATNA). Every suggestion proposed in the negotiation that is better than the parties BATNA, ought to be accepted.
Negotiators often have to overcome dead-ends. These are very intensive situations where no progress is achieved. There are some common techniques for such situations, including taking a break shall or a change of venues or negotiation dates. The direction talks have been going and the parties profound interests might also be re-examined, in case that something has not been clarified correctly.
In conclusion, well-prepared negotiators must be able to identify all the factors affecting the parties’ behaviors and human disputes. These are transferable skills. After all, everything is negotiable.
Olga Tsiptse is an LL.M lawyer at the Supreme Court of Greece, an accredited mediator at the Ministry of Justice & Arbitrator and DPO at the Deutsche Schule in Thessaloniki, Greece.
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