UGANDA CHRISTIAN UNSIVERSITY

MUKONO

The centre of Excellence in the Heart of Africa

FACULTY OF LAW FACULTY

NAME: BUGEMBE ANOLD

REG NO: CSI6B11/431

STREAM: C

COURSE UNIT: CLINICAL LEGAL EDUCATION

TUTOR: LULETI JONAN

A CRITIQUE OF CHAPTERS 1, 2, 3, 4, 7 AND 8 OF GETTING TO YES.

CHAPTER 1- DON’T BARGAIN OVER POSITIONS.

Getting to Yes is a book that deals with the process of negotiation. The problem, as defined
by the authors, is that people negotiate over positions. Their contention is that bargaining
over positions is counterproductive to a wise agreement. This does not mean a solution will
not be reached or that it will not be an amicable agreement. The key is that it is a wise
agreement. A wise agreement is defined as the result of negotiation which has these
characteristics: 1) it meets the legitimate interests of each side in the negotiation, 2) it results
in a fair and durable resolution, 3) it takes community interests into account, 4) the process is
efficient and amicable.
The authors assert that positions will divide each side into potentially intractable causes.
Interests, on the other hand, can be shared or at least complementary. Therefore, finding
legitimate interests in common for each side will tend to unite the various parties. Positional
bargaining is inefficient and often endangers relationships. Exploring mutual interests will
more quickly result in a good resolution while preserving the relationships. Positional
bargaining is exponentially complicated the more parties involved. Interests can be explored
by many parties; in fact, the more parties involved the greater the likelihood of finding
mutual interests. Positional bargaining can use only hard or soft tactics. Exploring interests
allows negotiators to be hard on the problem but soft on the people.
The authors also provide a brief introduction to the Getting to Yes method. It centers on four
strategies: people, interests, options, and criteria.

My critique of this chapter is that each party proceeds into negotiation independent of trust.
Trust is not established by them prior to discussions nor does the author think it necessary. If
people have a fundamental distrust for one another, no amount of negotiating will overcome
this. The authors contend that trust will just happen as a result of using their method. I think
this is optimistic at best. It may cause negotiations to drag on for a long time without ever
reaching an agreement to which either side will commit.
I was also concerned about a key assumption the authors make in regard to interests. They
assume that all interests of each side in the negotiation must be met. This contention is simply
wrong. Any individual or party in a negotiation may have underlying interests that are
unreasonable, desirable but not needed, immoral, or illegal. The bottom line is that every
member of the human race has a sin nature and exposes it regularly. In a negotiating
situation, the natural tendency is to grab for everything you can while preserving your assets
(was that a polite way to say that or what?). So one cannot assume that the underlying
interests, if they can be discovered, are legitimate and must be met. I would agree that they
must be considered in preparing your negotiation strategy. But I patently object to the notion
that they must be met in all cases.

CHAPTER 2 - SEPARATE THE PEOPLE FROM THE PROBLEM.

The technique of separating people from problems involves three areas: perception, emotion,
and communication. Dealing with perceptions is a particularly difficult one since you may
not know the other side’s perceptions until you enter face-to-face negotiation. Emotional
responses will also get in the way of a rational discussion of the conflict. Accurate
communication, then, is difficult to achieve between parties involved in a conflict. It requires
active listening skills, speaking for yourself and not about others, and seeking to understand
the other side’s comments. These three areas intermingle; miscommunication may make it
difficult to understand the other side’s perceptions resulting in angry outbursts.

My critique of this chapter is that I find it hard to believe that ignoring the facts of a
situation will help resolve the problem. Even if you somehow meet the other side where they
are at perception-wise you run the risk of a breakdown in the agreement process. The factual
part of a problem cannot be ignored. Truth will always help define the substantive aspects of
a conflict. Truth can be used as a weapon to beat people into submission. But properly
exposed, truth can cut to the heart of a conflict. It seems to me it is better to know if the
conflict is over people unwilling to accept the facts or just people misunderstanding the facts.

CHAPTER 3 - FOCUS ON INTERESTS, NOT POSITIONS.

The second strategy which I believe offers incredible insight into negotiation is to determine
what the underlying interests are for each party. Each party normally issues or defines a
position in a negotiation. But behind the position one will find a number of interests or needs
that must be satisfied. The position stated is generally one of many ways to satisfy those
interests. So a wise agreement can be reached if the underlying interests of the two parties
can be met. I find this to be a powerful strategy for negotiating since it removes the
association of a position with a person. The focus of the discussion can move to the interests
behind each other’s position. This provides each participant with valuable face-saving and
frees them to communicate openly about their interests.

My critique of this chapter is that, Getting to Yes does not adequately draw a clear and
workable distinction between positions and interests. Interests are “elusive” and often
difficult to ascertain. Primarily, Fisher and Ury do not distinguish between objective interests
and subjective interests. Objective interests are those that promote an individual’s well-being,
whereas subjective interests are those things the individual wants, irrespective of whether or
not they are good for them. Bargaining becomes difficult when these interests do not align.
Further, the narrow focus on interests does not give enough consideration to complex matters,
such as values and beliefs. Often, negotiations hinge on people’s values and perceptions
rather than interests. Ultimately, the purpose of negotiation is to come to a settlement, which
inevitably involves some discussion of positions. Therefore, the discussion of positions in
negotiation is inescapable.

CHAPTER 4 - INVENT OPTIONS FOR MUTUAL GAIN.

This fourth chapter primarily deals with various techniques to develop options which satisfy
the interests of all sides. The authors cover things which inhibit creativity and how to
overcome these things.

My critique of this chapter is that Getting to Yes by Fisher and Ury has some major
limitations. Principled bargaining will often be unsuccessful where there is an irreconcilable
conflict and the parties’ interests are directly opposed. This is often the case in single-issue
disputes, where it is impossible to ‘expand the pie’ for mutual gain. More so overcoming
these inhibitors means separating the inventing of options from any judgment of the options
or commitment to them doing the opposite of what people normally consider negotiation.
Negotiation is to bring two sides together. Inventing and broadening the options considered
would seem to take the sides farther apart

CHAPTER 7 - WHAT IF THEY WON’T PLAY?

When your own attempts to turn the discussion from positional to principled negotiation fail,
you may consider a third party. If the other side focuses on positions and not merits, and
principled negotiation fails, then you can play negotiation jujitsu, or you can include a third
party a method termed as the one-text procedure.
My critique of this chapter is that, it is not always practical to seek the advice of an
impartial third party who may be in a position to determine objective criteria. The assistance
of a third party in such a situation would be more akin to mediation and yet the essence of the
whole text is Negotiation.

CHAPTER 8 - WHAT IF THEY USE DIRTY TRICKS?

This chapter shades light on situations where they just will not play by the rules. Many dirty
tricks are cited such as phony facts, ambiguous authority, questionable intentions, deliberately
stressful situations, personal attacks, good-guy/bad-guy routines, refusing to negotiate,
extreme and escalating demands, lock-in tactics, and the list could go on practically forever.
There seems to be no end to the creativity in people trying to cheat the system. Normally,
people either put up with it for a time or fight back. The authors suggest to change the rules
of the game.

My critique of this chapter is that, the authors' consideration of "dirty tricks" in negotiation
suffers from more of the same faults found in their treatment of objective criteria. At a
superficial level I find their treatment of dirty tricks to be distasteful because it is so
thoroughly self-righteous. The chapter is written as though there were one and only one
definition of appropriate negotiating –behavior handed down by the authors. Apart from the
rather trivial concern about their self-righteousness, their discussion is troublesome because it
discloses an ignorance of, or a disregard for, the subtleties involved in distinguishing between
appropriate and inappropriate conduct in negotiation.
More so what would be important in this situation where someone is using dirty tricks is to in
fact try to reform the other party, try to change their behaviour and appeal to their morals
encouraging them to abandon the vices, instead the authors prescribe to change the rules of
the game which is absurd.

In conclusion the various chapters 1, 2, 3, 4, 7 and 8 of Getting to Yes are as critiqued above