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<xTITLE>Core Negotiation Skills: Tools for Resolving Complex Political Disputes and Other Seemingly Intractable Disputes</xTITLE>

Core Negotiation Skills: Tools for Resolving Complex Political Disputes and Other Seemingly Intractable Disputes

by Gregg Relyea
March 2019 Gregg Relyea
The attempted negotiation concerning the government shutdown and border security is viewed by many as a tragedy of historic proportion, serving up examples of hubris, ignorance of established negotiation practices, and brinksmanship.  Name-calling, threats, and other unproductive methods have taken center stage.  Breakdowns in communication thwart constructive dialogue.  And "winning" at the expense of another has become a priority.  It doesn't have to be this way. 

Throughout time, negotiation has been successful in resolving even the most intractable disputes. Negotiation has proven to be successful in resolving business transactions, political disputes, and interpersonal disputes.  Negotiation has even been successful in resolving some long-term, identity-based conflicts (South Africa and apartheid; Ireland and the Troubles). 

Despite appearing to be extemporaneous and improvised, the negotiation process is guided by well-established and proven principles.  It is a process that is structured, yet flexible, systematic, yet tailored to the circumstances of each dispute.  There is an extensive--and growing--body of literature spanning several decades on the study of negotiation.   

Over-Confidence in Negotiation Skills--A Serious Barrier to Successful Negotiation

While some people shy away from negotiation, a contradictory view of negotiation also is common--many people mistakenly believe they are expert negotiators.  After all, we negotiate every day with our colleagues, co-workers, family members and children, and for homes and cars.  We've all done it many times before--doesn't that make a person a stronger negotiator?  Anecdotal experience in specific circumstances does not create a framework for understanding the negotiation process.  Confidence that rests upon self-serving recollections of past successes cannot build a foundation for consistent performance in negotiation. 

Despite their well-established record of personal and professional accomplishments, every member of the Conference Committee would benefit from continuing to enhance core negotiation skills.  In 1999, psychologists David Dunning and Justin Kruger discovered that, the less skilled a person is at something, the more they are inclined to over-estimate their skill.  A case in point, most people drive a car and sincerely believe they are good drivers.  But what type of driving skill does the average driver possess?  What driver training does the average person receive?  Advice from Mom and Dad?  A short high school course?  Years of experience behind the wheel?  We may drive every day, but that does not necessarily make us more skilled drivers.  In fact, most of us simply repeat the habits learned early on and continue to operate vehicles at the lowest level of minimum competence--our whole lives.  We are not even aware of the strategic driving skills that are available and we tend to grossly over-estimate our prowess behind the wheel (Dunning-Kruger).  Not unlike the average motorist, even high level business people, lawyers, retail operators, world leaders, politicians and other professionals rarely receive any formal negotiation training.  One challenge for the Congressional Conference Committee is to expand their negotiating repertoire by actively incorporating core negotiation skills into their deliberations. 

Without a broader understanding of the negotiation process, it is possible for each negotiation to be treated as a unique event where the parties improvise, relying exclusively on their "old back of tricks."  At what cost?  Loss of opportunities?  Loss of security and safety?  Financial losses?  Loss of political capital?  Loss of public trust and confidence?  Loss of standing in the world community?  Estimated costs of the shutdown have been calculated to be in the billions of dollars.  And, perhaps  most importantly, low-competence negotiating has damaged working relationships between leaders and even members of the community--independent of whether a deal is worked out.  What does this mean for the future?  Has anyone learned anything in the process?  Will the next negotiation be equally unproductive, mean-spirited, and brutish? 

Act Strategically--Don't React Emotionally           

As a general principle, effective negotiation means the parties act strategically--they don't react emotionally.  Acting strategically means that everything a negotiator says and does (or chooses not to say or not to do) should be done with an eye toward their long-range strategic goal.  Anything that creates a barrier or impediment to the strategic goal should be avoided. 

People are human.  Words matter; they are triggers, both good and bad.  Professional negotiators don't "wing it" with words; they carefully and judiciously choose each and every word that is used during negotiation to ensure that the words lead to the end goal.  This can give professional negotiators three-aspirin headaches, but it is well worth it.  Members of the Congressional Conference Committee can expect the next days and weeks to be a total immersion experience, at the same time they can offer unforeseen opportunities for agreement if they choose to apply core negotiation skills.

Emotions play a role in negotiation, but emotional reactions to offers, communications, attacks, and animosity are  not strategic.  Accusations of "bad faith," describing offers as "non-starters," or blaming others for "nickel and diming" reflect an emotional reaction rather than a strategic response, regardless of how sincerely a party believes in the accuracy of those words.   Emotional reactions are unfiltered, unchecked, knee-jerk retorts, rejoinders and rebukes.  When the blood pressure rises, faces get red, veins bulge, and words flow completely unchecked, an emotional reaction is involved.  Regardless of whether an emotional reaction may be justified, it is usually counter-productive if it is expressed in words or deeds.  Lashing back usually generates escalation, entrenchment, and bad blood.  One of the greatest challenges for the Congressional Conference Committee negotiators is to act strategically--not react emotionally. 

Professional Listening in Negotiation

More than anything, negotiation is a communication process.  All the principles of good communication apply, including listening as a professional skill.  The elements of professional listening are more numerous and technical that many may realize.  These elements include listening for the intended message (instead of seizing on a person's misstatement, overstatement, or understatement), letting go of the oft times overwhelming desire to talk (not interrupting, stepping on another person's words, cutting people off), and learning how to manage internal dialogue (controlling "mind chatter," the little voice inside one's head that says, "I don't like the way that other person looks.  Or talks"). Internal dialogue, sometimes referred to as "mind chatter," can be fatally distracting and destructive to the negotiation process.     Professional negotiators focus on the issues, not personalities and they minimize distracting personal thoughts by temporarily compartmentalizing them.    

Negative personal mannerisms must be managed carefully (including intrusive eye contact or failure to make eye contact, bouncing the foot or knee, crossing arms, hands and legs defensively, aggressive gestures that intimidate others and produce resistance).  Shifting weight from foot to foot while standing  is a classic negative personal mannerism.  Fidgeting with a pen or other object, regardless of the intent, can convey nervousness, lack of confidence, and lack of interest.  Skilled negotiators let go of their security blankets and slogans.  They open themselves to communication and understanding by using personal mannerisms that convey trust, patience, engagement, and a sincere interest in working with other parties.

The Essential Nature of the Negotiation Process 

Negotiation is a process of "no."  Repeated rejection of offers is part of the process.  With this understanding, it can be easier for Conference Committee members to accept the seemingly relentless dismissal of offers and ideas.  Until an agreement is reached, the negotiation process essentially consists of a long series of turn-downs, rebuffs, and, worse still, rebukes.   It doesn't have to be taken personally.  Even dead-ends and weak ideas can lead, eventually, to terms of agreement.   Every communication, whether it results in agreement or not, is an opportunity to learn more about the parties' interests and to shape a solution that works for everyone.   

The Power of Reciprocation

Reciprocation is a principle of influence identified by Dr. Robert Cialdini, a pre-eminent social scientist teaching at Arizona State University. Reciprocation, in the context of negotiation, means that behavior that is shown toward other parties generally will be returned.  Patience, respect, kindness, and civility generally are returned in kind.  Favors and other actions of genuine benefit also generally are returned.  It is, likewise, critical to bear in mind that negative reciprocation also is returned.  Impatience, disrespect, unkind behavior, and incivility will be remembered and returned.  Every act of reciprocation, whether positive or negative, will become a permanent part of the record. 

Congressional Conference Committee members would be well-served to remember the impact of each of their statements or actions on the negotiation as a whole.  As Ambrose Bierce, a noted American journalist, stated, "Speak when you are angry and you will make the best speech you ever regret."  Even though the Conference Committee process is not confidential, it might be advisable for members to be thoughtful in making public statements about progress, regression, or otherwise. 

Preparation for negotiation often is one of the most neglected tasks, yet there is a well-known process for this, too.  Research about the subject of the negotiation is critical and it broadly explores far more than price or other fixed terms.  These may include consideration of the history of dealings between the parties, context of the negotiation, personal and business interests of the parties, factual and legal considerations, and alternatives the parties may have in the event of non-agreement. Identifying a reservation price ("bottom line") and an "aspiration price" (what the parties hope to achieve) is a valuable part of preparation because it helps to define the goals of negotiation.  Carefully and realistically analyzing the alternatives of each party before, during, and after negotiation will enable parties to understand the full consequences of failing to reach an agreement.  Do the parties have viable and strong alternatives or, as in many cases, are the alternatives to agreement weak, unknown, or mixed?  Strategic reference to alternatives during negotiation--rather than making bald threats--can create leverage and movement in negotiation without damaging the parties' relationship.     

Creating Value in Negotiation

Negotiation is often thought of as a process where a party squeezes the most concessions from their counterpart.  Known as "claiming value," this approach is a traditional way to view negotiation, with the goal of grinding the counterpart into pulp by extracting significant concessions or attempting to make the other party "lose face."  This type of bargaining can set up a negotiation for failure or, later, problems with compliance.  In fact, negotiation is much more complex and multi-dimensional. 

"Creating value" is another approach used by professional negotiators to expand the possibilities for agreement.  Creating value involves a focused analysis of the other party's interests, as well as one's own, in order to understand which terms of agreement satisfy everyone's interests, including an analysis of which resources a party has to offer.  Creating value transforms the negotiation process from one of "taking" from another party to "give and take." Creating value leads to an exchange of benefits rather than an extraction of concessions.  By expanding the pie ("integrative bargaining"), parties can create opportunities for agreement previously thought to be impossible. 

Setting the Tone in Negotiation

To be an effective negotiator, it is critical to set and maintain a positive tone.  Conference Committee members will reap the benefits if they engage this valuable tool.  Thank your counterpart for  taking the time to sit down with you.  Engage in small talk briefly to establish rapport.  Break bread when appropriate.  Express your mutual interest in working something out.  Move the conversation in general terms to the issues that are being negotiated.  And then, begin a focused discussion of the specific issues, giving careful attention to the framing of the issues (the way the issues are worded) and the sequencing of the issues (the order in which the issues are addressed).  Nothing is given away by observing these simple steps--and much can be gained.  Later, if a negotiation turns sour as difficult decisions must be made, it may become necessary to re-set a positive tone by taking a brief break to cool off or returning the conversation to the parties' shared interest in a mutually beneficial resolution.    

Life-Long Learning Proces

The core skills described above are, at times, counter-intuitive and learned.  Businesspeople, political leaders, co-workers, and Moms and Dads can all benefit from negotiation skills training.  Many interactions involve an element of negotiation, so virtually any of the skills that are learned can be helpful in a wide range of everyday situations. 

It is critical to remember that the core skills of negotiation are not self-executing.  Knowledge of the skills is not enough to activate them or to use them effectively.  They must be deliberately put into practice. 

The skills described above represent a small sampling of the broad array of core negotiation skills that can be deliberately used in the right way, at the right moment to have maximum impact.  Everyone can be a more effective negotiator if they practice the core skills and apply them, mindfully and deliberately, in the course of everyday issues and on momentous occasions like the one currently faced by the Congressional Conference Committee.

Biography


Since 1992, Gregg F. Relyea has served as a full-time private mediator, arbitrator, and mediation trainer. Mr. Relyea has recently co-authored a children's story book, Trouble at the Watering Hole," with Dr.. Joshua Weiss about conflict resolution skills.  It is aimed at children from 3- to 12-years-old and is available on the Harvard Program on Negotiation (PON) website and amazon.com.  The storybook is accompanied by a parent/teacher guide that is filled with games, activities, and conversation-starters.  Mr. Relyea has also authored a comprehensive skill-building text, "Negotiation, Mediation, and Dispute Resolution--Core Skills and Practices," that is accompanied by an integrated Power Point presentation and teacher's manual.

For the past 20 years, he has taught negotiation, mediation and ADR at the law school and university levels.  Teaching and practicing mediation have provided Mr. Relyea with a unique opportunity to observe the negotiating behaviors of lawyers, parties, and students.  In addition, Mr. Relyea provides neutral fact-finding services for employment matters, including sexual harassment, discrimination, and wrongful termination. Facilitation services for large group issues and disputes also are available.  Mr. Relyea has been teaching and training professional mediators in the United States and abroad since 1995  He is available for private consultation, programs and conferences, and in-house law firm training programs as well.  Mr. Relyea has written numerous articles about mediation, negotiation, and alternative dispute resolution.

 



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