University of Lusaka

Alternative Dispute Resolution (ADR)

Unit 3
NEGOTIATION
What is it?
 Whilst there is no set definition, it could broadly be
understood as trying to get a good, or the best deal
possible in a given situation
 Think of all the possible situations that you have to/have had
to apply some negotiation on a daily basis
 More often than not, in those circumstances you are/were
striving towards an arrangement that is self serving only
 Equally, the other negotiator also had their own interest at
heart…

 The point of a negotiation is not to win. It’s to get the best

possible deal.
 The fact the you have entered into a negotiation in the fist
place means you are open to settling for less than what you
initially wanted
What is it?
 If you are negotiating for a third party’s interest(on
behalf of), you need to be more flexible in your
approach
 Focus on problem solving and trying to satisfy the
parties' interests without shifting the blame to
either/any side (determining who is right and who is
wrong)
 The process should involve informal and
unstructured discussions through which, by the
end, you should have reached a mutually satisfactory
agreement
 As you engage in your dialogue, some points to
consider are that:
 Identification of the issues in contention
 Disclose parties’ needs and interests
 Identification of possible settlement options; and
 Negotiate the terms and conditions of your
resolution
How to go about it
 Every negotiation you will encounter is
different but each will generally require you
to address the substance of the conflict
as well as the procedure dealing with it
 In order to do this you will have to listen
twice as much as you speak, this is
particularly when addressing the substance
 because
 Is it possible to change someone’s mind if
you don’t even know what they are
thinking??
 Make an effort to listen to the other
side so that you can understand them. This
will be the cheapest concession in your
entire dispute resolution
Two ears to listen twice
as much
 Successful negotiators listen more for their own benefit and
not necessarily the other party - self preservation
 Human beings respond more to emotion than they do logic
and if the situation escalates, negotiations may quickly
become hostile. You are then in a position where you lose
your ‘cool’ and everything goes downhill from there
 Assume control through self accountability
 That means:

 If you feel you are becoming overwhelmed with emotion:

 Pause (Pause for as long as you have to)
 Breathe
 Then speak
 In real time, it won’t always be possible to hold your temper.
This is a skill that can only be acquired over time
Two ears to listen twice
as much
 There are certain situations in which you may have
an opportunity to prepare yourself for negotiation,
take advantage of the situation and do your
homework
 If the opposing party is of another cultural
background, find out their culture, speech, personal
style, body language etc.
 Don‘t criticise or reject their position out of hand or
turn
 Accentuate the positive
 Eliminate elements of negativity
 This will allow you to be in control and to be able to
listen effectively
 Remember, through listening you can adequately
Talk that talk
 What you need to do is:
 State your position- LISTEN- exchange -LISTEN- and the cycle
continues
 Don’t concede without exchange, you should have some sort of
satisfaction in the end
 In the game of negotiations you need to be witty, try to use party B’s
objections to support your case, or start with an unreasonable offer and
then make concession
 Let silence and patience do the work for you
 Act confident and wait
 If there is a tantrum from the other side:
 Pause
 Listen
 Think
 Breathe
 The speak
Negotiation stages
 There are basically eight (8) stages in negotiation:

 Prepare: Know what you want. Understand them

 Open: Put your case. Hear theirs;
 Argue: Support your case. Expose theirs;
 Explore: Seek understanding and possibility;
 Signal: Indicate your readiness to work together;
 Package: Assemble potential trades;
 Close: Reach final agreement;
 Sustain: Make sure what is agreed happens.
Negotiation strategies
1.Principled negotiation
 Principled negotiation is the name given to the
interest-based approach to negotiation.
 This was propounded by Roger Fisher and William
Ury in 1981.
 It is based on four principles which are:
 (1) separate the people from the problem;
 (2) focus on interests rather than positions;
 (3) generate a variety of options before
settling on an agreement; and
 (4) insist that the agreement be based on
objective criteria.
Separate people from
problems
 People tend to become personally involved with
the issues and with their side's positions. And so they
will tend to take responses to those issues and
positions as personal attacks.
 Separating the people from the issues allows the
parties to address the issues without damaging
their relationship. It also helps them to get a clearer
view of the substantive problem.
 Negotiators on both sides of the issue bring emotion,
perceptions, and values to the negotiations and
these may lead to reactions that produce counter-
reactions that lead to failure of negotiation.
 Remember, assume control –self preservation
Perceptions

 Conflict lies in each side’s perception of the

problem
 Therefore, ability to see the situation as the other
side sees it is one of the most important skills a
negotiator can possess
 Understanding the other side’s position does not
mean agreeing with it
 Thus, one way to deal with differing perceptions is
to make them explicit and discuss them
Emotions

 A negotiator must recognise and understand

emotions
 Thus a negotiator must:
 (i) identify source of emotions;
 (ii) make emotions explicit and acknowledge them
as legitimate;
 (iii) allow other side to cool down;
 (iv) listen without responding; and
 (v) don’t react to emotional outbursts
Communication
 Sometimes the negotiators may not be talking to each other or
one side is not be hearing the other or there is total
misunderstanding
 As a solution, listen actively, acknowledge what other side is
saying, talk about it, speak about yourself and not about them
and speak with a purpose.
Focus on Interests
 Good agreements focus on the parties' interests, rather than
their positions
 As Fisher and Ury explain, “Your position is something you have
decided upon. Your interests are what caused you to so decide.”
 Defining a problem in terms of positions means that at least one
party will “lose” the dispute. When a problem is defined in terms
of the parties' underlying interests it is often possible to find a
solution which satisfies both parties' interests.
Focus on Interests

 The first step is to identify the parties'

interests regarding the issue at hand. This
can be done by asking why they hold the positions
they do, and by considering why they don't hold
some other possible position
 Each party usually has a number of different
interests underlying their positions. And interests
may differ somewhat among the individual
members of each side.
 However, all people will share certain basic
interests or needs, such as the need for security
and economic well-being
Focus on Interests

 Once the parties have identified their interests, they

must discuss them together. If a party wants the
other side to take their interests into account, that
party must explain their interests clearly
 The other side will be more motivated to take those
interests into account if the first party shows that
they are paying attention to the other side's
interests
 Discussions should look forward to the desired
solution, rather than focusing on past events.
Parties should keep a clear focus on their interests,
but remain open to different proposals and positions
Invest options for
mutual gain
 There are four major obstacles that inhibit invention of
options:
 (a) premature judgment;
 (b) searching for the single answer;
 (c) assumption of a fixed pie;
 (d) thinking that “solving the problem is their
problem.”
 There are four basic steps for inventing options:
 Step 1: define the problem;
 Step 2: diagnose causes of the problem;
 Step 3: approaches- what are possible strategies?; and
 Step 4: action ideas
Invest options for
mutual gain
 There is need to invent creative options: (a) separate
the act of inventing options from the act of judging
them-
 (1) brainstorming (define purpose; choose a few
participants; and, clarify ground rules);
 (2) post-brainstorming (identify most promising ideas;
invent improvement of promising ideas; and, evaluate
ideas and decide).
Invest options for mutual
gain
 Negotiators must broaden the options on the table rather than
looking for a single answer:
 (a) examine problem from view of different professionals and
disciplines;
 (b) invent agreements of different strengths;
 (c) change the scope of the proposed agreement
 Furthermore, negotiators must look for options for mutual gain:
 (a) identify shared interests:
 (b) Shared interests lie hidden in every negotiation;
 (c) shared interests are opportunities;
 (d) Stressing shared interests can make the negotiation smoother
 Make their decision easy:
 (a) without some option that appeals to other side there will be no
agreement; and
 (b) option must be viewed as legitimate.
Use objective criteria

 When interests are directly opposed, the parties

should use objective criteria to resolve their
differences
 Allowing such differences to spark a battle of wills
will destroy relationships, is inefficient, and is not
likely to produce wise agreements
 Decisions based on reasonable standards make it
easier for the parties to agree and preserve their
good relationship
Use objective criteria

 The first step is to develop objective criteria. Criteria

should be both legitimate and practical. There are three
points to keep in mind when using objective criteria:
 (i) each issue should be approached as a shared search for
objective criteria. Ask for the reasoning behind the other
party's suggestions. Using the other parties' reasoning to
support your own position can be a powerful way to
negotiate;
 (ii) each party must keep an open mind. They must be
reasonable, and be willing to reconsider their
positions when there is reason to; and
 (iii) negotiators must never give in to pressure, threats, or
bribes. When the other party stubbornly refuses to be
reasonable, the first party may shift the discussion from a
search for substantive criteria to a search for procedural
criteria
When the Other Party
Is More Powerful
(alternatives)
 No negotiation method can completely overcome
differences in power
 Often negotiators will establish a “bottom line” in an
attempt to protect themselves against a poor
agreement
 The bottom line is what the party anticipates as the
worst acceptable outcome. Negotiators decide in
advance of actual negotiations to reject any proposal
below that line
 As the bottom line figure is decided upon in advance
prior to discussions, the figure may be arbitrary or
unrealistic
 Having already committed oneself to a rigid bottom
line also inhibits inventiveness in generating options
When the Other Party
Is More Powerful
(alternatives)
 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
 The negotiator attempts to determine the minimum
outcome(s) the other party is (or parties are) willing
to accept, then adjusts their demands accordingly
 A “successful” negotiation in the advocacy approach
is when the negotiator is able to obtain all or most of
the outcomes their party desires, but without driving
the other party to permanently break off negotiations,
unless there is a best alternative to a negotiated
agreement (BATNA)
BATNA
 A BATNA is an alternative approach to a negotiation agreement
which can be used in the event that a negotiation stalls
 Power in a negotiation comes from the ability to walk away from
negotiations
 Thus the party with the best BATNA is the more powerful party in
the negotiation
 Generally, the weaker party can take unilateral steps to improve
their alternatives to negotiation. They must identify potential
opportunities and take steps to further develop those opportunities.
The weaker party will have a better understanding of the negotiation
context if they also try to estimate the other side's BATNA
 In developing a BATNA, one must:
 (a) invent a list of actions possible if no agreement;
 (b) improve some of ideas from list, create practical alternatives;
and
 (c) select the alternatives that seem best.
Advantages of principled
negotiation
 1. Principled negotiation provides more satisfying results for
the parties, as it deals with their underlying needs and
interests and thereby establishes agreements which are more
likely to be adhered to.
 2. It is efficient, in that parties look more creatively at a range of
options for dealing with their problem, and reduces the likelihood
of stalemate or leaving anything of value at the negotiation table.
 3. It provides a basis for a better relationship between the parties
by dealing with emotional and interpersonal dimensions of conflict
and taking account of future relations between the parties.
 4. It provides legitimate standards (objective criteria) for
evaluating and accepting settlement options, without the parties
appearing to be unduly compromising.
Critics of principled
negotiation
 It trivialises conflict thus undervaluing the role that
situation and context play in handling conflict. It would be
more productive to have the parties think critically about
their specific situation and design steps more appropriate to
their needs than to ask them to stick to those four principles
 It does not differentiate interests from objectives. The focus
on the concept of “interest” flattens out the complexity
of human interests, values and beliefs upon which
interests are hinged
 It is not applicable in zero-sum game situations- it only
provides workable solutions as long as the parties' interests
are compatible, but not when they are directly opposed
 It overlooks the fact that some parties have ulterior
motives for taking part in the negotiations i.e. to exact
revenge, to discover information or simply to get the thrill of
competitive confrontation. In those cases one-sided
principled negotiation cannot help to bring about an
amicable agreement
Critics of principled
negotiation
 Its interest-based bargaining assumes a rough
equality in power between the parties. Thus,
it does not take into consideration that in many
situations, one party is considerably more
powerful than the other and is able to prevail
through crude positional bargaining
 It overlooks the impact of psychological
barriers on the parties' perception of interests,
mutual gain and even objective criteria. The
cognitive biases, which the parties themselves are
often not aware of, can limit the parties' ability to
engage in joint problem solving
2. Positional
negotiation
 Positional bargaining is a negotiation strategy that
involves holding onto a fixed idea, or position,
of what you want and arguing for it regardless of
any underlying interests
 It is a solution centred approach to negotiation
Styles of Positional
Negotiators
 Positional negotiators often viewed as either a
“hard” or “soft” bargainers:
 By “hard” bargainer, this means:
 (a) participants are adversaries;
 (b) goal is victory;
 (c) demand concessions as a condition of the
relationship;
 (d) try to win a contest of wills; and
 (e) apply pressure.
Styles of Positional
Negotiators
 By “soft” bargainer, this means that the: (a)
participants are friends;
 (b) goal is agreement;
 (c) make concessions to cultivate the relationship;
 (d) be soft on the people and the problem; and
 (e) trust others
Dangers of positional
negotiations
 1.Produces unwise agreements in that:
 (i) position tied to ego;
 (ii) Negotiators locked into positions; and (iii)
As more attention is paid to positions, less
attention is devoted to meeting the underlying
concerns of the parties.
Dangers of positional
negotiations
 Arguing over positions leads to inefficiency. It is
an incentive to stall settlement. This is so because
the agreement requires concession
 Endangers on-going relationships. It leads to
a contest of wills while anger or resentment may
result from concessions required to reach an
agreement
 Varying positions can complicate positional
bargaining.
How then do you get to understanding

 When the other side won’t play (positional negotiator insistent on

asserting his position only):
 Focus on the merits (away from position) by adopting three
approaches:
 (a) You continue to focus on merits, rather than positions;
 (b) Counter positional bargaining to direct attention to merits;
 (c) Include a third party to help focus on the discussion**see slides
on “Most rules have exceptions”
Negotiation Jujitsu
 Typically, a positional bargainer will use three manoeuvres:
 (i) Forcefully assert positions;
 (ii) Attack ideas; and
 (iii) Attack negotiator
 When a positional bargainer asserts his position, look behind that
position to identify the interests and when your ideas are
attacked, invite criticism and advice
 If necessary, use silence- besides creating an impression of a
stalemate, silence tend to feel uncomfortable with silence,
especially when they have doubts of the merit of their position
Negotiation Jujitsu

 Using a third party (the “one-text procedure”)

could be helpful
 This is so because:
 (a) Third party explores interests of each party;
 (b) Third party devises draft solution;
 (c) Present draft solution to each party; (d) Third
party revises draft until reaches “final” version
Tactics- “Changing the
Game”
 (a) Recognising Hard-Bargaining Tactics. These are
often characterised by extreme claims, followed by small,
slow concessions
 (b) Commitment Tactics: one party persuades the other
that there is no freedom of choice in a particular issue
 (c) “Take it or Leave it” Offers. One party threatens to
end negotiation if offer is not accepted e.g. “take it today or
it’s gone”. The risk is that if both sides play, they will be no
deal
 Changing the game: Stay with your game by not letting
the hard-bargainer inhibit you from staying focused.
 “Name the Game”: Share your perceptions of what the
other party is doing and also show that you can play the
same game. If need be, change the players by removing
certain parties; or add neutral third party to assist
Getting past “No”

 There are five steps of a “Breakthrough Strategy.”

 (a) “Go to the Balcony”: this means distancing yourself from
your natural impulses and emotions- this keeps you focused on
the ultimate goal. Some tactics:
 (i) Recognize the tactic;
 (ii) Know your hot buttons;
 (iii) Pause and Say Nothing;
 (iv) Rewind the tape;
 (v) Take a time-out;
 (vi) Don’t make important decisions on the spot
Getting past “No”

 (b) Step to their side. Stepping to their side means doing four
things:
 (i) Listen Actively; (ii) Acknowledge their point; (iii)
Acknowledge their feelings; and (iv) Agree whenever you
can
 (c) Reframe. Every message is subject to interpretation. Some
reframing techniques are: to ask problem solving questions-
“Why?”; “Why Not?”; “What If?”
 (d) Build them a golden bridge. Instead of pushing the other
side toward an agreement, reframe and retreat from their position-
start from where other side is in order to guide him toward
eventual agreement. In doing so, involve the other side, satisfy
unmet needs, help other side save face and don’t rush to the
finish
Getting past “No”

 (e) Don’t Escalate: Often, when negotiations are

frustrating, parties switch from problem solving
game to power game
 Use power to educate- thus, the only way for
them to win is for both sides to win e.g. ask
reality-testing questions
 4. Forge a lasting agreement by implementation;
designing a deal to minimize risks; and building in
dispute resolution procedures
Most rules have
exceptions
 Generally, it is accepted that negotiations do not
involve third party intervention
 However, not every negotiation can be solved
between/amongst the disputing parties
 The aid of a third party needs to be put on the
table as an option depending on the dispute in
question
 Think of negotiation as an animal. Each
negotiation needs to be handled differently
Most rules have
exceptions
Third party interveners are useful in negotiations for
a number of reasons:
 They can bring parties together
 They can establish ambiance for negotiations
 They can communicate appropriate information
 They can help parties clarify values
 They can hep parties to deflate unreasonable claims
 They can help parties to loosen commitment
 They can help parties to seek joint gains
 They can keep the negotiations going
 They can articulate rationale for agreement
 Can you think of what other ways third party
intervention is useful in negotiations?
Most rules have
exceptions
There are four common types of interveners.
 A facilitator is a person who brings parties together
for a negotiation.
 A rules manipulator is a person who provides the
rules for the negotiation. For example, your
mother was a rules manipulator when she set up the
following rule for dividing a small pie between two
siblings. "One cuts the pie and the other chooses the
first piece."
 A mediator is a person who helps in the
negotiation, while an
 Arbitrator helps in the decision. Mediators don't
dictate solutions, but arbitrators do. However,
arbitrators do try to get agreement, since, if disputes
are not settled amicably, often the agreements
maybe inefficient. That is, there maybe other
solutions where both sides are better off
Types of interveners

 Facilitator - brings parties together for a

negotiation
 Rules manipulator - provides the rules for the
negotiation
 Mediator – actively assists in the negotiations
 Arbitrator - helps in the decision
 The last two types should have you thinking about
the interconnectedness of ADR mechanisms
Theory v reality

 If you apply the ‘text book’ approach to

negotiating, you probably won’t get a very good
deal at the end of the day
 The reason for that is because engaging in a
negotiation includes more tactics, theories,
and strategies than you can fathom – you
need to be able to adapt quickly to the occasion
and environment you find yourself in
 More importantly, you need to do this bearing in
mind that not every negotiating style (developed
by “experts”) will suit you (personality).
Theory v reality

 Also, remember that despite the fact that there are

some generally accepted guidelines for negotiating .i.e.
 (i)predetermined goal;
 (ii)understanding why you are negotiating
 (iii)etc.…
 There are also some of the universally accepted
strategies to negotiation which are accepted with
regards (and tailored to) a specific context i.e.:
 Business (e.g. corporate mergers) Don’t be the first one
to walk away
 Criminal justice (e.g. hostage situations) If you want to
reject an offer, question the plausibility of the other
party’s objective
Theory v reality

 This is not to say that you should discard the

valuable information that you will/have received
from critically acclaimed books, materials, or even
what you have previously learnt in class, at work
or elsewhere
 That information is crucial (your foundation) and
should remain at the back of your mind always
 However, be aware of the risks of religiously
applying that information
Theory v reality
 Any idea why? Think of it from this perspective
 All the students in your class (yourself included) are taking ADR and
are receiving the same information from the same book, which
dictates that the stages in negotiations involve:

 As they read further, they will discover that they can negotiate in
one of two ways or both - distributive (win or lose), or integrative
(maximise resources for a favourable outcome
 They will read about BATNA (best alternative to a negotiated
agreement). They will discover that this strategy will assist them in
making better decisions as they negotiate i.e.
 If you get a better proposal than your BATNA, accept v if your get a
worse proposal than your BATNA, reject
 This information, and more, is available not only to you and your
class mates, but also to a vast number of students elsewhere in
Zambia, as well as outside. Furthermore, there are skilled
professionals across a wide array of disciplines being trained using
the same or similar information
Theory v reality

 If you attempt to engage in negotiations with your

class mates, students in other universities across
the globe studying ADR/negotiation skills,
professionals encompassing a wide array of
disciplines being trained on negotiation skills/ADR,
or just about anyone that has taken time to read a
book on negotiations or ADR mechanisms, you will
discover that your opponent is able to recognise
what negotiation strategy /template/model you
are using
 Consequently, your entire strategy may quickly be
deciphered
 What to do
 To guard against a situation like that arising, you need
to familiarise yourself on the rules surrounding
negotiation so that you can be the best player in the
game
 Think of it this way, you may have knowledge of the
rules, but most likely, your opponent will too and will
beat you even before the games begin
 On the other hand, if you have no idea what the rules
are, you will be intimidated and at loss of what the nest
move should be
 What’s a possible solution?
 What to do

 Interrogate the information (learn it)

 Assimilate the information (understand )
 Next, customise the rules so that they work for you (break them)
 Remember, every rule was made by people no smarter than you are
Readings include
 Raiffa H “The Art and Science of Negotiation”
 Karrass CL “The Negotiating Game”
 Boulle L “Mediation: Principles, Process, Practice ’
 Funken K ‘Shortcomings and Limitations of Principled Bargaining in
Negotiation and Mediation’
 Patton B, Fisher R & Ury W “Getting to Yes”
End