Negotiate to Resolve Conflict
When parties to a conflict communicate with the aim of reaching an agreement that will reconcile their respective interests, this process is called negotiation.
Negotiation may be spontaneous and informal, for example, when trying to pass through a roadblock, or it may by highly structured and planned, for instance, South Africa’s CODESA talks. There are, however, underlying similarities in the process.
Typically the negotiation process entails adversaries attacking each others’ unattainable demands, and gradually conceding to a compromise position that both can accept. Such agreements are often unsatisfactory to all sides. Rather, we suggest an interest-based approach, where wise agreements are found through a multifaceted process in which parties acknowledge and try to meet each others’ needs. In the process, relationships are preserved and agreements made sustainable.
Key Things to Learn
• Understand the role of negotiation in managing conflict
• Understand that there are different approaches to negotiation and that there are some advantages to an interest-based approach
• Learn key steps to the negotiation process
• Understand the role of power in negotiation (including the concept of BATNA)
• Learn how to handle stalemates, deadlocks and dirty tricks
Negotiating to Interests
When you want to achieve a sustainable solution to a conflict (that is, when you want to resolve or transform a conflict), talking is the only option. Effective negotiation will help you through conflicts with belligerent parties, in the field, and even in your own team.
What is Negotiation?
Negotiation is a common way for people to resolve problems and deal with conflict. It happens when people wish to talk to each other to find a solution to the problem. Sometimes negotiation is very informal, and it happens within everyday situations. It can also be a formal method of conflict resolution used to resolve interpersonal, intergroup and interstate conflicts.
Where would you use these skills on a Peace Mission?
• To get through a rebel-controlled roadblock
• To secure the release of some of your staff who have been taken hostage
• To deal with colleagues who have different standards or approaches to yours
• To work with community leaders to decide where a new school, or other service, should be located
- happens when there is a problem, a conflict of interest or a common concern between parties;
- is appropriate when the parties have a more or less even power balance, because each group has something the other wants;
- happens when the parties want to reach an agreement;
- is an interactive process; and
- requires parties to identify the issues of a conflict, educate each other about their needs and interests, come up with possible settlement options and bargain over terms of a final agreement.
When to Withdraw?
• There is a vast power differential between parties
• The other parties are negotiating in bad faith
• There is a security risk, and safety of negotiators or other engaged civilians is at risk
If you are from a military or police background in a peace mission environment, you may be unaccustomed to relying mostly on negotiation to resolve conflict – but, in most cases, the use of force will be outside of your mandate. A peace mission takes place in a context of conflict, and you should expect to encounter conflict on many levels – both within the mission structures, and in the field.
In both this lesson, and the following one on mediation, we shall outline basic principles and present an action-oriented approach to using negotiation or mediation to resolve conflict. This will then be followed by an in-depth discussion of deeper principles underlying these approaches. Refer back to these in-depth sections over time, as your experience increases, to enhance your skills and deepen your insights.
When to Negotiate
When facing a conflict, or a crisis situation, your first step should be to assess whether to attempt to negotiate to resolve the confrontation, or whether to make a dignified withdrawal – if that is possible. Safety and security of staff and civilians should be a first priority. Do you need to negotiate to ensure safety, or will withdrawal be a better option?
Negotiations succeed best when there is a balance of power between the parties – each of the parties should have something the other needs, or they should need to cooperate for each to achieve their goals. It can be futile to try and negotiate with someone who is vastly more powerful than you in any given situation, unless you have no other option. There may be times when it is best to leave a dispute unresolved, until you can find a way of influencing the power relations at play in a given situation.
Fear of Negotiation?
Negotiation is something most of us do on a daily basis. But, if thinking of negotiating still brings you out in a cold sweat, you’re among friends. This online course should help you conquer your fear of negotiating. Practice makes perfect.
A New Approach
Don’t write off an interest-based approach as inappropriate too quickly. You will be surprised at how widely it can be applied.
Good negotiators become effective after years of practice. You can, too. Even interest-based bargaining still requires a firm approach – being clear about your interests, and having them met. It is not a ‘soft approach’.
Making a Tactical Withdrawal
During a West African peace operation in Liberia (ECOMIL), a WFP convoy, with an escort by ECOMIL, was trying to negotiate its way through a roadblock maintained by a rebel group. The WFP person responsible for the convoy realised that her arguments were not having any effect. The rebels manning the roadblock were under the influence of alcohol and drugs, and she realised that it was impossible to have a rational negotiation with them.
One option was to use force, but for reasons both strategic (implications for other WFP convoys in rebel-held territory over the coming days/weeks) and tactical (potential for civilian casualties), this was not the best option in this situation. She decided that it was better to return the convoy to its point of origin (the harbour). She reported the situation to her higher HQ and requested them to communicate with the higher HQ of the rebel position. Negotiations then took place, once more at the highest level with the rebel leaders, and they instructed the persons at the roadblock to let the WFP convoys through.
One of the lessons from this example is that one should guard against getting caught up in the ‘negotiation trap’, where you feel you have to reach an agreement just because you are ‘in a negotiation’, and that stopping short of reaching an agreement is admitting failure. Reaching a bad agreement is a greater failure than reaching no agreement. In 99% of the situations in which you will find yourself, the issue does not have to be resolved in the next few hours. Tomorrow is another day, with new opportunities. The situation may change, or you may have found a new way to change the dynamics of the situation.
Approaches to Negotiation
The typical approach to settling disputes by negotiation is that of positional bargaining. We’re all familiar with this approach: opposing parties make demands (take up a position) and then haggle and bargain until they reach an agreed compromise position, somewhere in the middle of their opposing demands – for example, bargaining over the amount of money that will be paid for release of hostages.
But is this way of negotiating the best approach to resolving conflict, or even the only way of going about it?
What’s Wrong with This Approach?
Conventional negotiation approaches imply giving away as few compromises from one’s opening position as possible, and deceiving the other party as to one’s true views. It involves stacking up a number of composite decisions against each other so as to have bargaining power, and slowly giving away concessions in small increments.
An Inefficient Approach
A number of strategies and tactics is used to make this process more effective. Parties are encouraged to hide their real interests and to stake out extreme positions at the beginning of a negotiation, to minimise the risk of losing too much in the process. The back-and-forward bargaining process is often slow, and there is a risk of no agreement being reached.
Positional bargaining tends to be an adversarial approach to negotiation that locks parties into positions, ties egos into positions so that ‘saving face’ becomes more difficult, and where parties’ real interests are given less and less attention in the struggle to ‘win’ by achieving maximum concessions from the other party.
Negotiation Approaches in Mediation
One of the potential roles of the mediator is to train and educate the parties on how to negotiate effectively. This opens the opportunity to present a principled or interest-based negotiation approach, and increases the chances of an effective mediation.
Positional bargaining is a test of will, and puts outcome above relationship. Being ‘nice’ is no solution – it makes one vulnerable to someone who is playing ‘hard’ in a bargaining situation. In large multilateral negotiations, positional bargaining becomes even more complex, and derailing the negotiations becomes easier for a party that is not getting what it wants.
Finding an Alternative Approach
Harvard professors Fischer and Ury’s seminal book, Getting to Yes, changed the face of negotiation the world over. They argue that the positional bargaining approach to negotiation is inefficient at solving problems, and that the agreements reached in that way are often poor compromises for everyone – and don’t last.
They argue that any method of agreement should be judged by three criteria:
- it should produce a wise agreement, if agreement is possible;
- it should be efficient – bringing a problem to resolution quickly; and
- it should improve, or at least not damage, the relationships between the parties.
They suggested an alternative, which has since been called by a variety of names, including: principled negotiation, negotiation on the merits, interest-based bargaining or joint problem solving.
There are four basic principles of this approach to negotiation:
- PEOPLE: separate the people from the problem (this may be highly foreign in a communal context, but suggests finding ways to maintain and build relationships while, at the same time, resolving problems);
- INTERESTS: focus on interests, not positions;
- OPTIONS: generate a variety of possibilities before deciding what to do; and
- OBJECTIVE CRITERIA: insist that the result be based on some objective standard.
We believe that this interest-based approach is the most sustainable method of negotiating, particularly in a highly-charged conflict environment, but it involves quite a different way of thinking about negotiating, which you will learn in this online course. It can be used in many different scenarios, however, where:
- negotiation will take place between strangers;
- there is no future relationship;
- there is only a single issue at stake, such as price; and
- the process of considering interests or options is considered too slow or costly…
…then simple positional bargaining may be the quicker and more appropriate approach.
Best Alternative To a Negotiated Agreement (BATNA)
When negotiating using a traditional positional approach, each party decides before beginning (and revises during negotiations) what their bottom line is going to be. They accept they will make concessions on their demands, but this is the point they will not cross.
In a positional bargaining situation, where there is no overlap between the bottom lines of opposing parties, this can mean only one thing – the negotiation will deadlock.
An interest-based approach suggests, instead, that parties consider their Best Alternative To a Negotiated Agreement (BATNA). BATNAs exist in the real world, not in fantasy-land. It is the best actual, real alternative the party has at that point.
A Roadblock BATNA
An unescorted WFP food convoy is caught in an unexpected rebel roadblock. The rebels are demanding food supplies and are threatening violence. What do you think is their BATNA? Is it to try to withdraw and go to the nearest safe area; to radio for help and hope to keep the rebels engaged long enough for troops to arrive; or to hand over food so that they can proceed through the roadblock and complete their mission?
Before beginning a negotiation, a party must know its BATNA, as it determines its power in the negotiation. At every point in the negotiation, it must revise its BATNA, as any agreement – or potential agreement – should be compared against the BATNA to assess whether it is a viable agreement. If you are a rebel group and the agreement is a ceasefire proposal, your BATNA is to continue fighting. But how strong is that BATNA? If you suspect you may lose, because you have run out of ammunition, then it may be a very weak BATNA, although it is stronger if the other side doesn’t know this. BATNA is not a static concept.
No party will accept an agreement when it has a better option outside of negotiations.
And the Other Side?
Before you enter negotiations, try to step into the shoes of the other party. What options does it have if it fails to secure a deal in this negotiation? This will tell you a lot about how strong its position is in the negotiation, and may help you to understand its BATNA.
Negotiations are ultimately about power. Parties accept negotiated solutions because they don’t have the power to gain everything that they want – for one or more reasons. A party can increase its power in a negotiation by improving its BATNA, or by weakening the other party’s BATNA.
The Other Side
It is important to keep monitoring both your own BATNA, and that of the other side, throughout a conflict negotiation. If the other side’s BATNA is strengthened through developments outside of the negotiation process, its approach to the negotiation may change.
Stages in Negotiation
Before beginning any kind of negotiation, it is important to weigh up the conditions for negotiation – this includes making some kind of assessment of whether or not negotiations can be effective. Is there sufficient balance of power? Is there sufficient motivation on the part of the parties (yours and the other side) to reach agreement?
It is generally agreed that there are four identifiable stages in the negotiation process:
- preparation – identify and analyse the conflict; conduct research; contact the other parties, explain intentions and build relationship; plan strategically;
- open the negotiation – introduce the parties; define issues and set agendas;
- explore interests and find solutions – act/think creatively; identify interests; jointly generate multiple options for settlement; assess options against objective standards; and
- closure and agreement – select best options; combine and extend options; make concessions; reach agreement; write the formal settlement; agree on the implementation steps/process.
On the following pages, we will outline a straightforward action-oriented approach for conducting negotiations in the field. We will go into detailed background information underlying this approach, and will give more direction for a structured negotiation process. You may wish to come back to this information at a later stage.
Stages in Mediation
Mediation can be seen as ‘facilitated negotiation’. The stages in a negotiation process correspond closely with those of the mediation process, although the mediator also needs to think about some additional steps, such as the mediator’s entry, and how to deal with the process when it looks likely to deadlock or break down. See page 122 onwards for more information.
This section is designed as a quick reference to get you started on using negotiation skills. For a deeper understanding of the principles behind the steps, read the in-depth section that follows, but the flowchart (opposite) will get you started.
- Even in a crisis confrontation, you must make an assessment of the situation – primarily to decide whether negotiating is the best option, or whether it is possible to make a strategic withdrawal. The Stages of Conflict model will help you to assess the stage of the conflict – if it has reached crisis, negotiation may not be the best option.
- Use the Circle of Conflict to help you understand some of the root causes of the conflict. In time this thinking will become internalised, and you will be able to assess quickly where the causes lie – but the model offers you a structured analytical framework with which to start.
- Assess your BATNA, and attempt to assess the BATNA of the other parties.
- Plan how, when and where you would like to hold the talks, and what approach you would like to use.
2. Opening the Negotiation
- Introduce yourselves to the other parties, and make a brief opening statement outlining how you understand the problem, and how you would like to proceed, and ask the other parties to do likewise.
- Make a list of the issues to be discussed, and formulate some kind of agenda that outlines in which order you will discuss the issues.
- This is the time to agree on any rules for the talks – who will chair the meetings, will notes be taken, when will the meetings end, how confidential the discussions should be, etc.
- Decide whether a third party or facilitator/mediator will be necessary.
Opportunity for Emotional Venting
- Conflict negotiations of any kind are generally emotionally charged, and if there is already a history of violence, loss or destruction, the parties involved will be looking for a chance to vent their feelings and be heard by the other parties.
3. Exploring Interests and Finding Solutions
- Try not to get caught up in a war of confrontational, escalating demands. Articulate your needs and interests, rather than demands or positions, and attempt to educate the other parties on why you have those needs.
- When they state their positions, ask probing questions as to why they hold those positions, and attempt to understand their deeper interests. Repeatedly check that you are correctly interpreting their needs.
- If the talks become deadlocked, use a different approach (change of venue, different negotiators, take a break, relook at interests) to get the process moving again.
- Once the needs of all parties have been put on the table and acknowledged, begin a process of creatively trying to come up with all possible options for settling the dispute. Encourage options that may seem silly, irrelevant or unrelated – sometimes these can lead to really constructive solutions.
- Match up a range of settlement options to the needs of the parties and see if a settlement can be found that meets most of the needs of the parties, even if their original demands are not met.
- Assess the potential agreement against your current BATNA to evaluate whether it is an acceptable agreement.
4. Closure and Agreement
- Does the agreement stand up against objective standards? If an unfair or unjust agreement is reached because the one party is more powerful than the other, or for reasons of expediency, it is unlikely to stand in time.
- Formalise the agreement as is appropriate – this may or may not involve a written agreement.
- Decide how the agreement will be implemented and monitored. Who will do this?
- Will any special arrangements need to be made for negotiating parties to ‘sell’ or report back the outcome of the negotiation to their constituencies? Should any special arrangements be made with the media?
An In-depth Look at Negotiation
If you have developed some confidence with the negotiation process, and are ready to take a more detailed, in-depth look at it, then you are ready to take this lesson.
Your effectiveness in a negotiation is going to depend to a large degree on how well you prepare. Before entering a negotiation, answer the following questions (and prepare to do a lot of research and analysis to get the answers).
- Why do we have a conflict? What are its root causes? Who is involved, and with whom do we need to reach agreement?
- What are our interests? Do we have multiple interests? Which are most important? Can we describe them very specifically and clearly? Does all of the team feel the same way?
- What are the interests of the other parties? What do we know about the other parties, and how do we find out what we don’t know? Are there hidden agendas? What is their BATNA?
- What is our BATNA? What is our best alternative to reaching agreement in this negotiation? Is this option realistic and achievable? Have we researched it thoroughly?
- What approach do we intend to use in these negotiations? Do we understand how to use an interest-based approach in this negotiation? Have we practised brainstorming and generating options for mutual gain?
- How do we expect the other parties to approach the negotiations, and how will we deal with them? Are we equipped to deal with dirty tactics? Do we know where stalemates and deadlocks may arise?
- What objective standards can help inform settlement? Are these standards in our favour? Is there likely to be dispute over standards?
- How do we expect a satisfying agreement to look? What issues will need to be dealt with from the beginning? How might the other side explain and justify such an agreement to their constituencies? Consider drafting a framework agreement.
There are many different ways to start and run a negotiation process. Here are some recommendations to get you started:
- introduce negotiators and their teams to each other;
- allocate time for a brief opening statement by each side, where parties can state their understanding of the problem, and how they would like to proceed;
- discuss what approach will be taken in the negotiations;
- discuss whether an outside facilitator or mediator will be necessary to assist the process;
- set an agenda or process for the negotiations, or talk about how you will do this as the first stage of the negotiations;
- decide who will chair the negotiations and take notes, or record key decisions (both of these roles may be shared by the parties);
- decide on the venue, date and times for the rest of the negotiation process;
- discuss any interim measures (e.g. cessation of hostilities) that may be necessary while negotiations are in process; and
- decide on any policies around confidentiality and talking to the media (if appropriate).
What Should an Opening Statement Look Like?
An opening statement should introduce your side, and give an overview of how you understand the problem, and how you would like to approach negotiating a solution to the problem.
An example of an opening statement can be seen below.
Opening statement for meeting with representatives of the Freedom-All Party:
Mr. Thusi, Secretary-General of the Freedom-All Party, ladies and gentlemen, thank you for agreeing to meet with me at such short notice. I am Mr. Burkhal, the electoral advisor of the AU mission in Sedonia. Ambassador Vari, the Special Representative of the Chairperson of the Commission, has asked me to convey his best wishes to you.
As you will appreciate, he is extremely concerned about the current level of tension between the Freedom-All Party and the National Congress Party, and he feels that it is the AU’s responsibility to try and find a solution to the unfortunate double booking of the stadium this Saturday. As I am sure you will agree, the current situation is untenable. If we do not act decisively to end the stand-off in the next few hours, we may not be able to prevent violent clashes erupting between the supporters of the two parties tonight.
The people of Sedonia have invested so much in peace over the last three years, we cannot disappoint them now, at the 11th hour. We cannot allow violence to return to Sedonia. Both parties have committed themselves to a peaceful election campaign and have signed the electoral code of conduct.
The AU is willing to assist both parties to resolve this situation. If you so agree, I am willing to devote myself to finding a peaceful solution to this problem, and I am prepared to continue to meet with both parties, until we find a way out of this dilemma that is acceptable to both sides.
Firstly, we need to find out if you would like the AU’s assistance in this manner? And if you do, I would like to hear if you have any ideas as to how we can resolve this problem.
Exploring Interests and Finding Solutions
An interest-based approach to negotiations is based on four key principles:
- separate the people from the problem;
- focus on interests, not positions;
- invent options for mutual gain; and
- insist on using objective criteria.
These principles are designed to address relationship, procedural and substantive issues in negotiation.
Separate the People From the Problem
In any negotiation you are dealing with human beings – people with deeply-held values and ways of seeing the world, strong feelings and different backgrounds. In a conflict, relationships often turn destructive – parties demonise each other and fail to recognise each other as human. You can’t always know how the other side will respond, what will affect them… and the same applies to you.
The human element in a negotiation can be its downfall or its key success factor.
- If people are hurt, frustrated and have their backs against the wall, they will cause a negotiation to fail.
- If they have a positive relationship, where trust has been built up and enhanced over a long period of time, they will work hard to see a negotiation succeed.
Often, ongoing relationships are essential to the success of negotiation – and to the implementation of agreements that will succeed. Most cultures place a very high value on relationships – in many traditional justice systems, it could be argued, relationships are valued over revenge, and the healing of community is prioritised over the punishment of wrongdoers.
Substantive Issues and Relationships
Often the actual issues that are being negotiated, and the relationship between the parties become mixed up. If things get really bad, problems in the relationship can become an issue in the conflict. The Circle of Conflict shows that relationship issues can become a root cause of a conflict. Good negotiators will ‘separate the people from the problem’.
There are three areas that will impact negotiations: perception (perspective), feelings and communication.
Getting to Interests
You’ve probably all heard the story about the orange. Two people are arguing over an orange – both want it and are about to agree to cut it in half, when a wise woman walks past. Asking a few questions, she discovers that the one wants the rind, to use in cake icing, while the other is thirsty and wants to drink the juice. So they are able to divide the orange so that both get what they want.
And you’ve probably dismissed it, saying that it’s a sweet story, but that life is not often like that – most often, we all want the same thing.
In its simplicity, however, this story reflects a truth about many negotiations. Since the parties put forward positions, and these positions often seem to contradict each other, they tend to get locked in to the positions, and to think and talk in terms of positions. They assume that the solution is to find a position that falls somewhere between their two positions. Often the process gets stuck.
Look Behind Positions
What lies behind the positions? Positions are like lines drawn in the sand – they do not tell us why the line is there, or its purpose. Because the positions are contradictory, we assume that the interests must be, too.
The need to get to interests is clear – what is less clear is how to do it. Positions are clear and accessible; interests are sometimes deeply buried and may be unexpressed.
Understanding the other side’s interests is just as important – and difficult – as understanding your own.
Using the Circle of Conflict
The Circle of Conflict will assist in this process by placing root causes of the conflict in context. Root causes are related – separating out relationship, information, structural and value-based causes will help to clarify the interests of parties.
Remember also to include secondary and peripheral parties, and not simply to focus on primary parties in the negotiation process.
Examine each position taken and ask why this position has been taken – this will probably expose one or more of the party’s interests. When you get to an answer, keep asking ‘why?’ to find out if there are further interests beneath this one.
Ask ‘Why Not?’
Why is the other party refusing to comply with your requests, as put forward in your positional statement?
Each Side has Multiple Interests
Any one position may conceal a large number of different interests.
Basic Human Needs Make for Powerful Interests
Most political conflicts at community, national and international levels are about meeting basic human needs, including:
- economic well-being;
- belonging/community/ethnic identity; and
- self-determination/political control.
Invent Options for Mutual Gain
Interest-based negotiation is fundamentally a creative approach to negotiation. Rather than simply using power and leverage to reach a compromise solution that gives away less of your demands than that of the other party, this approach says we should find a wide ‘package’ of solutions that meets a range of interests of the parties.
Insist on Objective Standards
Any agreement that doesn’t meet external standards will be seen as unjust at a later stage, and could be compromised. This applies to inter- and intrastate conflicts as much as it does to intergroup or interpersonal conflicts.
Stalemates and Deadlocks
True deadlock in negotiation is actually very rare. There are three kinds of obstacles you may experience in negotiation:
- impasse – you are in complete disagreement over one issue, and it threatens the negotiations;
- stalemate – both sides are still talking, but are unable to make any progress towards solution; and
- deadlock – the negotiation process has so frustrated both sides that you see no point in continuing with the process any longer.
An impasse in negotiations is frequently misunderstood to be a deadlock, but normally there are many things you can do to keep the negotiations moving forward.
Obstacles are a feature, and often a strategic tool, of positional bargaining – at some point the parties will become locked to their positions, with neither party willing to make further concessions. An interest-based approach makes deadlock less likely, since most of the negotiations are concerned with understanding interests, and then finding a range of solutions to meet the interests.
Real-life Negotiation Deadlocks
During the negotiations leading up to the Lusaka agreement that formally ended the war in the Democratic Republic of Congo, there was a debate as to whether the different rebel groups engaged in the conflict should participate as equals with the various heads of state from the different countries that were engaged in the conflict. In the end, the deadlock was resolved when everyone accepted that, in order for the conflict to be resolved, all the parties to the conflict – regardless if they were a state party or a rebel group – had to be part of the peace process.
There have been many similar experiences at the tactical level, where rebel commanders on the ground have walked out of negotiations, or refused to start negotiations, when UN peacekeepers refused to address them as ‘general’ or ‘colonel’ or whatever rank they may have chosen for themselves. This may seem petty, but imagine a scenario where a 50-year-old real colonel from a peacekeeping mission, with perhaps 32 years of experience, training and education, has to salute a 15-year-old rebel child soldier, who is a self-styled ‘general’, and one can start to understand the dilemma. At the same time, we know that for negotiations to work the parties must be treated equally, and negotiations will not work if the 50-year-old colonel lectures the 15-year-old ‘general’. At the end of the day, this is about power relations in any given situation – if the UN peacekeepers need to reach an agreement with the rebels, and the representatives of the two sides are the colonel and the rebel general, then they need to find a way of recognising each other as ‘equals’, in the sense of each being the official representative of their respective parties in the negotiation process.
Understand the Causes of Conflict
Conducting a full conflict analysis prior to engaging in negotiation is vital. The Circle of Conflict should help you to identify where the root causes of the conflict lie. Are there relationship issues that need to be managed? No solution may be found if broken relationships are not healed. Is there contested data about the conflict? Have value conflicts been addressed in the settlement options?
Go Back to Interests
If you have got stuck arguing about concessions that will bring the parties to agreement, it may be helpful to stop the process and go back to talking about interests. Each of the parties may give a summary of how they understand each others’ interests, and how they see the current settlement options meeting the other side’s interests and their own.
A restatement of interests could help to focus the negotiation, bring an element of realism to the bargaining, and remind the parties that a workable agreement – that meets the needs of both sides – should be found.
Expand the Size of the Cake
The classic cause of blocks in negotiations is where parties become polarised around one decision, with neither prepared to back down. If this happens, the best option is to go back to brainstorming creative options for settlement.
This is about increasing the range and scope of options, and seeing if there’s not some way to get around or beyond the single contested decision.
The Set Aside
When you reach an impasse, simply set aside that issue and continue with the negotiation process. This is amazingly effective – the contested issue can be readdressed from a different point of view later in the process. Create momentum by addressing some minor issues first.
Change the Dynamics
If a stalemate has been reached, do one of a number of things to change the dynamic in the negotiation and get it going again:
- change the negotiators (if you are working in teams, there may be a personality issue);
- change the time or venue or take a break to allow tension to ease and the negotiators to gain a sense of perspective (change the ambiance in the room); or
- conduct some kind of exercise or discussion to ease tension – and take the focus away from the contested issues.
DRC Highly Emotional Car Accident
There comes a moment in any negotiation when the parties are ready to reach an agreement. This is normally after parties have had an opportunity to vent their emotions, had sufficient time to argue their positions, been able to build confidence in each other and the process, and after they have reached a stage where they accept that the only way to resolve their situation is through reaching a mutually acceptable agreement.
For instance, during the UN Organisation Mission in the Democratic Republic of Congo (MONUC), a UN military convoy was once involved in an incident where a young child was killed in an accident with one of the UN trucks. The UN officer in charge of the convoy wanted to apologise for the accident and make arrangements for an investigation, which may have resulted in compensation being paid to the family if the UN were found to be at fault. However, he realised that the situation was far too tense, and that the family and community were too emotional in the hours immediately after the accident, to be able to make a rational discussion. He decided that it may be best to allow the situation to cool down before attempting to negotiate a mutually acceptable process to investigate and resolve the accident.
Making the Cake Bigger
In any negotiation situation, choices may appear limited – there seems to be no way to ‘cut the cake’ so that everyone is satisfied. The choice is most often seen as the choice between winning and losing, and no side is prepared to lose. Often the only creativity that is brought to the process is on how to split the difference between opposing positions.
A key skill for good negotiators is learning to ‘increase the size of the cake’. This means inventing new options, and increasing the range and possibility of settlement. It’s not ‘our problem’ or ‘their problem’ – rather, by seeing one shared problem, we increase the potential for solving it.
We can consciously use different perspectives to think about, or approach, a conflict problem in a number of different ways:
- by consciously ‘stepping into’ the different perspectives/roles – e.g. now we are going to use some creative thinking and focus only on coming up with creative solutions to the problem, without judgement; and
- by becoming aware of which perspectives (or ways of looking at the problem) are being provided or allowed, and which are being excluded.
Some recommendations for using brainstorming in a negotiation process.
- Clarify purpose – decide what you wish to get out of the session.
- Few participants – too many people taking part can derail and confuse this process; under 10 is a good number. If there are more people, divide them into teams, with each group incorporating people from all the parties.
- Representation – ensure that all the negotiating parties are represented in the process.
- Change environment – a new physical space will make a statement about new ideas, and help to suspend judgement.
- Informal – any place that creates a relaxed, happy environment will assist a move away from structured thinking to a creative, right brain approach.
- Facilitator – you may want someone to coordinate and encourage this process.
- Record – write down all ideas, in full view of everyone.
- Off the wall – encourage creative, unusual, ‘out of the box’ thinking. Even seemingly ridiculous ideas can lead to, or be developed into, highly useful ones.
- No criticism – strongly enforce the no criticism approach. You are gathered to generate ideas, not break them down; don’t start evaluating or grouping ideas until you’ve finished generating them.
After completing the brainstorming session, you will probably have a huge range of ideas – from the conservative to the wild, from the achievable to the ridiculous. Circle the best ideas, and consider if it may be appropriate to group some ideas with others.
Start to discuss how the ideas can be worked into settlement options. It can be a good idea to bracket ideas – to develop stronger and weaker versions of the same idea – to counter possible responses from the rest of the negotiation teams.
To facilitate the brainstorming process, make it clear that all proposals are tentative, and that discussion of an option in no way indicates commitment to that position.
If the brainstorm group is representative of a wider forum, it will be necessary to share the results of the session with the negotiating teams. Those presenting the recommendations and proposals should include representatives from all the negotiating parties.
Rather than just presenting solutions, they should be shown in context. Where did the ideas originate? How do they fit together? Which are stronger and weaker versions of the same proposals?
Separate sessions might be appropriate next, for the parties to consider the options and formulate offers for settlement.
Around and Around
Accept that this may be a circular process that is repeated many times. Success will build confidence in the process, and will encourage parties that they can find workable solutions to the conflicts.
What if They Use Dirty Tricks?
There are many approaches to negotiation strategy, and your opponents in a negotiation may not use a principled or ethical strategy in their dealings with you.
There are three steps for returning to a principled approach of negotiating when the other side seems to be using an unethical approach:
- recognise the tactic;
- raise the issue explicitly; and
- question the tactic’s legitimacy and desirability.
Unethical Negotiating Ploys
Here is a guide to spotting unethical gambits, as used by the other parties, and some ideas on how to counter them.
Refusal (or Preconditions) to Negotiate
Lawyers often say: “Accept this offer, or I’ll see you in court.” What can you do when the other side refuses to negotiate altogether?
First, recognise it as a possible negotiating strategy – a variation on this is to set stringent conditions for negotiation, with the point of getting some concession before you enter negotiations.
Second, talk about their refusal to negotiate – through third parties if necessary. And, rather than attacking them, find out what their interest is in not negotiating. Will they be criticised for it? Or do they simply believe that no agreement can be reached?
Suggest an alternative strategy, perhaps using intermediaries. Insist on using principles – how would they feel if you also used this approach?
Higher Authority (or Ambiguous Authority)
Sometimes people are not above lying in a negotiation. It is a very common negotiation strategy to say that a decision cannot be made without being approved by a higher authority – such as a boss, a partner, a committee, members, or even ‘the people’. This may be true, and it may not.
It is a very effective strategy, because the other party can then return after ‘checking’ with the higher authority, and ask for a better deal. You will also have to work much harder to convince the person to represent your proposal positively to the higher authority.
If you are confronted by this strategy, try the following:
- appeal to the person’s ego – get them to admit that they are empowered to make a final decision themselves;
- get their commitment to recommend to the higher authority; and
- structure an agreement with a qualified ‘subject to’ close.
The other side may like you to believe that you both have authority to make concessions, when only you do… which means that you are the only one who is going to make compromises on your positions.
To avoid getting caught out, enquire about the other side’s authority to make decisions. It is a legitimate query, and if their decisions have to be tentative or conditional, then make yours so as well.
Good Cop/Bad Cop
This is a form of psychological warfare intended to gain concessions by getting the ‘victim’ to disclose facts or make concessions to the ‘good cop’, to avoid being attacked by the ‘bad cop’.
An overt response would be to draw attention to the gambit, expose it and make it clear you aren’t going to be manipulated in this way. A less confrontational approach would be to treat the two people in the same way, i.e. ask the same questions of both, and treat their offers in the same way.
The other side can use a decoy to take your attention off the real issue in the negotiation. In response to this gambit, stay focused and isolate the objection: ask if there’s anything else with which the other side has a problem, and introduce a demand of your own.
For every concession a negotiator makes, they may raise another demand, or even reopen issues you thought were already settled.
Once you recognise this practice, draw attention to it. If this doesn’t stop it, take a break to avoid making any concessions you will later regret. Insist on principle again, and when you return to the negotiations, anyone interested in settlement will be more serious and less likely to use this tactic.
Sometimes a negotiator will open with a ridiculous demand, hoping that when a compromise position is reached, it will be closer to their side of the range than yours. The goal is to lower your expectations. So, in a wage dispute where inflation has been determined at 8%, the company will claim poor returns and offer workers a 3% increase, hoping to settle somewhere around 6%.
Bringing the tactic to their attention works very well here. Instead of coming out with your own extreme demand, ask for principled justification of their position until it looks ridiculous even to them.
There is a well-known story of two dynamite trucks hurtling towards each other at high speed down a one-lane road. As they approach each other the one driver, in full view of the other, rips his steering wheel off and throws it out of the window. The other driver now faces a difficult choice between an ‘explosive meeting’ and driving their own truck into a ditch on the side of the road. This is a parody of an extreme tactic designed to make it impossible to yield. Paradoxically, you strengthen your bargaining position by weakening your control over the situation.
In response, you may choose to reframe the position, e.g. by restating it as a goal rather than a final demand: “We see that it is Party A’s desire to have three seats in the cabinet.” Or resist the lock-in on principle: “It is our negotiating principle to yield to reason, not pressure. Now let’s talk about the merits of the problem.”
Take It or Leave It
A close associate of the lock-in is the ‘take it or leave it’ offer. This is a common approach in negotiation, but it does not encourage joint problem solving. A possible response is to ignore it, and continue negotiating – perhaps by introducing other solutions. Then, if a new agreement is reached, try to find face-saving ways of getting the other party out of their ‘take it or leave it’ position.
In a land redistribution claim, the land commissioner may say to the landowner: “Transfer of 50% of the farm was your offer before we talked about the new inhabitants assisting with the management of livestock on the combined grazing area. Can we reconsider this in light of the new circumstances?”
It may be reasonable to expect that, at some point in a negotiation, the other side will choose not to act in a principled, honourable and honest way at all times. Rather than resort to such tactics, we suggest that you refer to the core principles of the interest-based approach. By remaining committed to a principled approach, you provide leadership through your example. You may choose to highlight this at the beginning of the negotiation, and consciously discuss the ‘rules’ by which the negotiation will be run. The other party will be less likely to use these tactics if they are aware that you will spot them and not bow to their pressure.
The purpose of entering into a negotiation process is to reach an agreement. This is the agreed outcome of the process, and for it to hold, it needs to be a strong agreement. Here are some ideas about what makes a strong agreement.
Writing an Agreement
Ideally, agreements should be written down, as this:
- clarifies the points on which the parties agree;
- defines what has been agreed;
- is a permanent record of the settlement;
- defines what is required in future; and
- creates standards by which the parties’ compliance with the agreement can be measured.
Agreements don’t always have to be written. Depending on the oral tradition of parties, or their levels of literacy, it may be necessary to find other ways of recording an agreement: perhaps in song, in a symbolic story, in a sculpture or statue, in a ceremony or event.
Who Should Write the Agreement?
Settlement agreements are usually written by one or more of:
- one of the parties;
- the parties in joint session;
- a sub-committee of representatives of the parties;
- the mediator or facilitator (sometimes with the public recorder); and/or
- the lawyers of the parties.
Example of a Written Agreement
Negotiated agreement between the Freedom-All and National Congress parties of Sedonia:
In the interest of ensuring a peaceful and orderly election, and in adherence to the Electoral Code of Conduct, it is hereby agreed that:
• both parties to this agreement will cancel their bookings to hold political rallies at the national stadium this coming Saturday 4 September 2005;
• the National Stadium Authority will refund the deposits that both parties have paid in this regard;
• the Freedom-All Party will arrange an alternative rally at the East Side Soccer Stadium on 4 September, from 14h00 to 17h00;
• the National Congress Party will arrange an alternative rally at the Western Acres Show Grounds on 4 September, from 14h00 to 17h00; and
• both parties will participate in a joint press conference at the offices of the Independent Electoral Commission (IEC) on 3 September, from 13h00 to 14h00.
At the press conference, the head of the IEC will announce the agreement reached. Thereafter, the respective secretaries-general of the Freedom-All and National Congress parties will each make a short statement, which will be limited to urging their followers to respect the agreement reached by their parties, and calling for peace and calm.
Signed by both parties, the head of the IEC and the representative of the AU.
Negotiating in Teams
In a complex negotiation, or one involving groups or factions of many people, you may find yourself negotiating as part of a team of people. It is vital that you discuss what role each person in the team will play. Below are some possible roles that will need to be covered.
You may choose to assign these roles to individual people. Alternatively, be aware that one person may be responsible for several of these roles at different times:
- leader – the role of leading and coordinating the team; deciding, or helping the group to decide, which course to take; maintaining the group and deciding which roles are needed or missing;
- strategist – develops strategy for how to approach the negotiations;
- primary negotiator – does most of the talking in the negotiations;
- supporting negotiator – speaks for the team if the primary speaker is not present, or is unable to speak for some other reason;
- note taker – keeps notes about what is going on (in detail, or just of important decisions, depending on the needs of the team);
- researcher – finds out anything the team needs to know during the course of the negotiations;
- observer – monitors what is happening, and keeps the team informed of how the team is doing and what is going on in the other team; looks for signs of increased emotions; watches body language and other channels;
- protocol officer – focuses on the relationship between the parties; meets and greets people; tries to build warmth and cooperation between parties; and
- counsellor – listens to team members when they need to speak through their feelings; helps release emotional pressure.
If you are negotiating on your own, it is important to be aware of the different roles you will be carrying at different times. Also, most of the roles listed above will need to be managed – negotiation is about thinking on your feet and keeping a very strong sense of perspective about where you are, and what you are doing.
Dealing with Emotion
During the course of a negotiation process, it is highly likely that you will need to have a process or mechanism that will allow you to vent or release strong emotions. Facing the difficult issues underlying the negotiation, particularly if you are negotiating with parties that you feel have done painful things to you, can raise anger, sadness, stress or many other strong emotions.
Before the negotiation starts, think about how you will deal with emotions during the negotiation. Having a plan in place means that you don’t have to think about it – when the pressure valve blows, you simply have to carry out the plan you already have prepared.
- If you are negotiating alone – have someone ready to offer you support, like a counsellor, friend, colleague or family member. This should be someone who is not involved in the conflict, and will help you to process the emotion and go back to make a positive contribution to the negotiations.
- If you are negotiating in a team – talk about how you will support each other by watching out for team members ‘losing it’, how you will cover each others’ roles if necessary, and what strategies you will use to process emotions – will this be done within the team, or with support from outside people.
Energy, Stress and Motivation
Negotiating, particularly in multifaceted, long, drawn-out negotiation processes, can be exhausting… and very stressful. When tired and frustrated, you are more likely to make concessions to get the negotiation finished. You are also less likely to have the mental alertness and awareness to spot unethical gambits by the other side, and to respond positively or creatively to the challenges of obstacles and stalemates in negotiations.
Here are some ideas for maintaining energy in negotiations.
Set up an energy scale for yourself, and use it to evaluate your current state. Stop at regular intervals, and give yourself a rating, out of five, on each of these criteria:
- How tired am I feeling?
(1=ready to fall asleep — 5=bouncy and excited)
- How is my body feeling?
(1=tense and restless — 5=comfortable and relaxed)
- How annoyed am I with the other party?
(1=want to shoot them — 5=we can work together)
- Can I remember what the last five speakers said?
(1=sorry, what? — 5=yes, all of them)
- How much do I want this to finish?
(1=where’s the exit? — 5=let’s stay till we find the solution)
- How is my concentration?
(1=thinking about other things — 5=focused and present)
Add the scores together. If you score less than 10, request an immediate break; if you score less than 20, be aware that your energy is dropping, and let the other party know that you would need to take a break at some time in the near future, and agree on a time to do this.
What to Do in a Break?
Find out how to re-energise yourself – try some of the following suggestions.
- Get ‘into your body’ – try taking a walk, or doing some stretching (if you’ve never done yoga, ask someone who has to show you some good stretches you can use). The switch in ‘channels’ away from speaking, listening and thinking will energise your mind.
- Try singing, shouting or humming (provided you are out of earshot of the other side). Listen to some tranquil music that you have selected in advance to relax you.
- Try some breathing exercises – concentrating on your breath as you breathe slowly and deeply in and out. This will relax you and increase the oxygen flow to your brain and vital organs.
- Eat or drink something energising. In negotiations, stay away from sweets, heavy carbohydrate snacks and caffeinated drinks like tea, coffee or Coca-Cola – these will temporarily raise, but then also lower, your energy reserves. Rather stick to fruit or fruit juice, and small protein snacks – these will help maintain your mental energy and focus. At meals, eat lightly and focus on salads and small portions of protein, not large carbohydrate portions like rice, potatoes or maize.
- Dump emotions – find a neutral party (preferably not someone in your team, whose anxiety will be further increased) on which to dump your feelings or emotions. Perhaps call a friend, counsellor or confidant, who will be primed beforehand simply to listen and receive your feelings, without criticism or challenge.