34whenandhow.pdf

.34 Carolinaplanning

When

and

How

to

Negotiate

Denise

Madigan

Gerard

McMahon

Stephanie

Rolley

Lawrence

Susskind

Denise Madigan, Gerard

McMahon

and Stephanie Rolleyareresearchassociates

withthePublic Disputes

Pro-gram of the Program on

NegotiationatHarvardLaw

School.LawrenceSusskindis director of theProgramand a professor of planning at

MIT.

The

NationalInstituteforDisputeResolution, inconjunction withthe

Harvard Program on

Negotiation, has

produceda

manual

entitled:

New

Approaches

toResolvingLocal

Development

Disputes.Inadditionto"when

and

how", the

manual

usessix casesto illustraterecent efforts atmediatednegotiation, outlinesa step-by-step

guide to using mediated negotiation,

and

lists sources of support for use of the technique.

"MediatedNegotiation"isa termusedtodescribe the role of a mediator in public disputes.

A

"mediatednegotiator"is

someone

who

isconcerned

with the traditionalelements of mediation such as

fairness

and

process, aswell as with thequality of

theoutcome. Thisterm readilyappliestoplanners.

In thefollowingexcerpt

from

theNationalInstitute

forDisputeResolution,

some

valuablepointers are

given

about

how

to identify a case ripe for a

mediatedsettlement,

how

to handlethenegotiation,

and

how

to evaluate the outcome.

When

To

Try

Mediated

Negotiation

Not

all local public disputes are

amenable

to or appropriate for negotiation. In

some

cases, a con-cerned party or decision-maker will

want

to use

traditional administrative, legislative, or judicial

processesto

make

controversial decisions orhandle

complex

disputes.

And

even

when

these processes

may

seem

less than perfect, mediated negotiation

is not always the best alternative.

Experience over the last ten years suggests that

there are certain characteristics of disputes

which

make

them

more

or less appropriate for mediated

negotiation.

Questions

To

Ask

Before Negotiating

There

areseveralquestions

which

should be asked

beforelaunchingamediatednegotiation toresolve

a local public dispute.

"Are the likely parties to the dispute

numerous

diverse,

and

hardto identify?

How

much power

dc

they

have

to block implementation of

any

poten

tialagreement

OR

of

any

futureactivitiesthat

max

have

been planned?"

In situations

where

the parties are

numerous

diverse,

and

hard to identify, a mediatednegotia tion

may

bedifficult toorganize, but

may

also

b

the best

way

toaddresstheconcerns

and

secureth

supportof theinvolvedparties. Typicallysuchpar

ties are frustrated

by

their lack of access to othe

decision-making or dispute resolution processes

They

haven't the resources, clout, or expertise t(

gain entrytoboard

rooms

orcourtrooms, yetthei

cooperation

and

support

may

be essential to th

success of a project or policy.

By

including thes

peopleinamediatednegotiation, allare

more

likel

to understand eachothers'concerns,

and

to treatth

decisionorproposalasa

JOINT

problem

requirin,

joint solving

and

support.

Inaddition, there

may

beparties

whose

cooperai

tion is notcritical to

THIS

particular project, buj

whose

long run cooperation

might

be useful in

number

ofotherprojects.Including

them

in negotia:

tions about

which

they care a great dealbut ove|

ita

less

"h

III!

Wft

Thisarticleisexcerptedfromapaper titled,

New

Approachi

toResolving LocalDevelopment Disputes, developed under grantfrom theNationalInstituteforDisputeResolution. Tf paperwill bepublishedby

NIDR

later in1986.

Summer1986, 3l. 12. 35

which

theyhave verylittleimmediateinfluence

may

bewise: theirsupport

and

good

will

may

besecured

for other projects in the future.

Are

the partieswillingto negotiate?

Do

theyhave

incentives to negotiate?

Thereis

much

debate in the mediationliterature

about the appropriate "timing" of negotiations.

Some

people arguethatmediation only

works

when

a conflict is "ripe," that is,

when

the parties have

squared off

and

are ready to

do

battle.

In contrast, mediation can

work

not only to

respond to disputes that have erupted, but also to

preempt

disputes before theyemerge.

The

decision

about "when" to introduce mediation involves a

tradeoff. In the early stages of conflict, the parties

havenot yetpubliclycommitted themselvesto

posi-tions; they are thereforefreer to

make

concessions

withoutlosing face. Butin theveryearly stages of conflict, theparties

may

notyetrecognize or under-stand the relevant issues.

They

may

also feel little

immediate incentive to resolve their differences. Inthelaterstages ofconflict, the parties

may

have

incurred substantial costs (or losses) doing battle.

As

delays or lawyers' fees

mount,

the parties

may

be

more

interestedinresolvingtheirdifferencesthan

they

were

months

before. Thus, the incentives to

negotiate

may

begreaterlaterin a dispute.

On

the

other hand, the parties

may

become more

firmly

rootedtotheirpositionsastimepasses. Iftheyhave

made

their

demands

public, they

may

be very

reluctant to relax those

demands

in the course of

negotiations.

In the end, the mediator

and

the parties should besensitiveto the

dynamics

oftheconflict.

Media-tioncan

work

in the very earlyor verylatestages

ofconflict, aslongas(a) the parties have an

incen-tive to negotiate,

and

(b) they

have

not publicly

locked themselves into positions.

"Is there a controversial value

judgment

at the

heart ofthedispute?

Are fundamental

principles in

opposition?"

In

some

cases, it

may

be appropriatefor a judge

orarbitratortorender a"verdict"inadispute.

Where

fundamental notions of right

and

wrong

are

in-volved,

and where

peopleare reluctantto

compro-misethesenotions, mediated negotiationisunlikely

to work. Imagine anti-abortionist

and

pro-choice

proponentsnegotiating a settlement

on

federal

abor-tion rights policy. It is highly improbable.

Butin

some

cases, disputesarelessconcerned with

ethical or moral judgements

and

more

concerned

with differences in preferences. Party

A

wants

to

open

a shopping center

and

party

B wants

to

eliminate traffic

from

the neighborhood. These

disputes

may

end

up

beingillservedby

narrow

legal

determinationsofright

and

wrong, especially since

there

may

be

ways

to

make

all the parties

BETTER

OFF

by

taking a broader look at the dispute.

(Perhaps Party

B

allows Party

A

to introduce a

variety of shops in the shopping center, in return

foran agreement changing

two-way

traffic to

one-way

traffic inthe neighborhood.

B

gets

more

vari-etyin hisenterprises

and

A

getsreducedtraffic

and

theconvenienceofthecenter.)Mediatednegotiation

can enablethe partiesto lookat

ALL

theissues in a dispute,

and

thus attempttoreach

WIN-WIN

solu-tions that take the broader issues into account.

"Are the stakes great

enough

tojustifythe costof

a mediated negotiation?"

The

scope of

any

dispute resolution process

shouldbeconsistentwiththescopeofthe issues

in-volved.

The

techniques describedin this

handbook

may

be applied to a

wide

variety of situations.

Associated costs will vary according to the

tech-niques used

and

the scopeof the issue. For

exam-ple,

you

probably

do

not

want

tolauncha

10-month

negotiation effort with 50 partiesjust to resolve a

dispute over a traffic light.

Discussions involving theinstallationofone

traf-ficlightshouldinvolvelittlecost

and

time.However, plans for citywide installation of a

new

traffic

management

system

may

warrant negotiations

be-tweenthecity, citizens, thebusiness

community and

local developers.

"Does thegeneralpublic careabout the

outcome

of the dispute?"

In

some

cases, local disputes arepurely"private" affairs.

The

generalpublicisunlikelyto

worry

about

how

two

neighborsresolvetheir

boundary

disputes;

the public doesn't care

who

"wins" thefight,

and

it

won'tcarewhethertheneighborseverspeaktoeach

other again. Butthereareahostofpublic disputes

which

affectalargesegmentofthe

community

and

which

affectrelationships withinthecommunity. In

suchcases the publicislikely tocare about the

ac-tualdecision(oragreement)

and

the

way

that

deci-sion (or agreement)

was

reached.

Mediated

negotiation isespecially attractivefor

thesekinds of disputes. Unlikepublic hearings or

other public "advisory" processes, citizen

represen-tatives can shape the final decision in a mediated

negotiation.

And

unlikelitigation, mediated

nego-ready todobattle

36 Carolinaplanning

evaluatingalternatives

tiationencouragescooperation

and

communication,

thus

promoting

better relationships in the

com-munity

in the long run.

How

To

Negotiate Effectively

If

you

decidetoparticipate inamediated

negotia-tion,

you

should spend

some

timethinking about

yournegotiation skills

and

strategies.

Though

we

cannot, in a few pages, train

you

to be effective

negotiators,

we

cansuggest

some

questions for

you

toconsider as

you

plan your negotiation strategy.

Additional suggestionsfor effectivenegotiations are

presented

by

Fisher

and

Ury

intheirbestseller

Get-ting to Yes.

"What

are

your

INTERESTS?

What

is it

you

really care

about

most?"

"What

are the otherparties'

IN-TERESTS

as well?"

Fisher

and

Ury, in Getting to Yes, describe the

popular story of

two

children arguing over

an

orange.

The

children's

mother

entersthe

room,

and

witnessing the conflict, decides to resolve it in

Solomon-like fashion: she simply cuts the orange

in half.

The

firstchildtakesherhalfof theorange, peels

it,

and

discards thepeel, saving thefruitfororange

juice.

The

secondchildtakesherhalfofthe orange,

peels it,

and

discards the fruit, saving the peel for

a cake she is baking.

Had

the

mother

thoughttoaskthechildren

what

they

wished

theorangefor, she

would

have under-stood each child'sunderlying interests.

Each

child initially statedshe

wanted

theentire orange,

when

in fact shereallyonly needed a part of the orange.

A

bettersolution

would

thenhave emerged: peel the

orange

and

give theentirepeel to

one

child

and

the entire fruit to the other.

This(admittedlyoverquoted)

example

illustrates

how

parties

become

deadlockedover positions

when

theyfail toexpressor consider theinterests behind

those positions. In

many

disputes, there

may

be

several

ways

tosatisfyeachparty'sconcerns,notjust

those

ways

reflected in each party's opening

statements.

As

you

enter a negotiation, tryto identify

what

it is that

you

really care about in the negotiation.

Tryto distinguish

your

most

important

from

your

leastimportantconcerns.(You

may

finditusefulto

concede

on

theleastimportant concernsinorderto

secure the

more

importantones.)

Once

you've

done

this for yourself, then try to

do

the

same

for the

otherparties. Try to imagine

what

their

most and

leastimportantconcernsare.If

you

candevelop

pro-posals to satisfy their

most

important concerns

which

cost

you

little,

you

will

win

theirsupport

and

move

theentire

group

towardsamutuallybeneficial

agreement.

"What

are

your

ALTERNATIVES

toa negotiated

agreement?"

"What

are the other parties'

alter-natives?"

In

any

negotiation,

you

should spend

some

time

evaluating

your

alternatives to the negotiation.

What

is your best alternative if negotiations fail?

Can

you win your

caseincourt?

Can

you

persuade

thekeydecision-makers

on

your

own?

Will

you

lose

friends?

Your

"bestalternativetoa negotiatedagreement"

(or

BATNA

as Fisher

and

Ury

expressit) can bea

usefulyardstick for evaluatingproposals

made

by

other parties.

Should

someone

offer

you

a

settle-ment

lessattractivethan

your

bestalternative,

you

should probably not settle.

On

theother hand, if

someone

makes

a proposalthat isbetterthan your

best alternative,

you

should think twice before re-jecting it. Consider the negotiation an

OPPOR-TUNITY

to

do

better than

your

non-negotiation

alternatives.

Italsopaystothinkaboutthealternativesfacing

theotherpartiesinthe dispute.Unless

you

can

make

Summer 1986, vol. 12, no. 1 ₅₇

unlikely to secure their agreement. Moreover, the

better their alternatives, the

more

effort

you

may

haveto

make

to

accommodate them

inasettlement.

"Can

you

work

togetherto

BRAINSTORM

some

I creative

OPTIONS

without

commiting

yourselfto

these options?"

Negotiationsare often

most

productive

when

the

parties

work

togetherto"brainstorm" or invent

op-tions. Accordingtotheauthorsof

Making

Meetings

Work,

Michael

Doyle and David

Straus, unfettered

brainstorming often leads to unusual

and

highly

creative solutions to problems.

But the inventiveness of brainstorming sessions

|

canbelimited ifthepartiesfeeltheywillbe

bound

1

by

allthesuggestions theymake. Peoplewillhesitate

t.\ to

make

creative, "off the top of the head" sugges-t tions before they've

had

a chance to analyze each

suggestion completely.

Consequently, a skilledfacilitatorormediatorwill

encouragethepartiestoinventoptionsfreelyat

dif-I ferent points during a negotiation, _if only _to

stimulatecreative thinking.Analysisof the options

I can then take place at a later point in the

negotiations.

"How

wellare

we

COMMUNICATING

with each

other?

How

wellare

we LISTENING

toeachother?"

Inthehighlycharged atmosphereof negotiations,

it is often easy to misunderstand the otherparties

and

to be misunderstood

by

them. If

you do

not understand

what

each other cares about,

you

will

have an extremelydifficult_{time framing proposals}

that are acceptable to each other.

It therefore

makes

senseto test, periodically, the

accuracy of

communications

taking place in the

negotiations.

You

can double check

by

asking the

otherparties to restatefor

you what you

just said.

You

might

do

this in a non-offensive

way

by

say-ing, "Ithink

we may

have misunderstood eachother.

What

did

you

think I

was

saying?" Likewise,

you

might offer to restate their previousstatements in

' orderto doublecheck

your

listeningskills.

You

can

say, "I'm sorry,but I

may

have misunderstood you.

Did you

mean

to say that.. .?"

"How

stable or secure are the other parties'

COMMITMENTS

to thefinal agreement?"

It is often tempting to believe

commitments

are

firm

when

averyattractiveproposalis

on

thetable.

If

you

standtobenefita great deal

from

a proposal,

you

may

be reluctant to ask the otherparties

one

lasttime, 'Yes,but

do you

PROMISE

to

do

such

and

such?"

Nevertheless,itisusuallywisetosecure everyone's

else's

commitments

before

you

agreetosign thefinal

proposal. If

you

can persuade the other parties to

sign contracts, postbonds, or

make

public promises,

terrific. Butif

you

canonly count

on

their

word

to

secure their

commitments,

then take the time to

studythe

commitments

theyhave

made.

Make

sure theyhave promisedto

do

thingsthey

CAN,

in fact,

do.

And

try to

make

surethey haveas little

incen-tive as possible to renege

on

their agreement.

"What

ishappeningtothe

RELATIONSHIPS

bet-ween

the parties in this negotiation?"

If

you were

haggling with a rug

vendor

in a

Turkish bazaar while

on

vacation,

you

might not be concerned about the impact

your

negotiations

were

having

on your

relationshipwith thevendor.

Odds

are, after the vacation ends,

you

will never

see that

vendor

again. In addition, it is probably

unlikely thathewilleverspeakof

you

to

someone

else

who

_knows

_you

or does business with you.

Butrelationshipsin

communities

may

bea

much

differentstory.Inapublic disputeinyour

own

com-munity,

you

may

care a great dealabout your

rep-utation

and

relationships with the other parties.

Fisher

and

Ury

urge negotiators to"separate the

people

from

theproblem." Thisis, inpart, apurely

practical issue.

The

other parties are unlikely to

agree to anything if

you

spend all

your

energy

w

Carolinaplanning

courteous, honest, fair

perception ofthe agreement

offending them. Inaddition, theissues at the heart

of the dispute are probably

complex enough

to

demand

your

full attention.

But thereisanotherreasonforseparatingthe

peo-ple

from

theproblem. Itprotects

you from

parties

who

would

try to exact concessions

from

you

in

return for their

good

will. If

you

are courteous,

honest,

and

fair with each other, then

good

will

shouldnaturally

emerge from

the negotiations(or at theleast, little

damage

should be done). Don't allow yourself to be blackmailed into giving in

because

someone

threatens to cut off

communi-cations with you.

Keep

the discussions focused

on

your

legitimate interests,

and

away

from

personalities.

Intheend, regardless of

how

you

may

feel

about

theotherparties,

most

of

you

willhavea

common

goal.

You

will

want

to see the dispute resolved to

everyone'ssatisfaction as

soon

as possible.

And

if

relationships are

improved

inthe process, so

much

thebetter.

The

negotiationswillhavegeneratedboth

immediate

and

long run benefits.

"How

willthe agreement be

viewed

by the

com-munity

at large?Willitbe viewedas

LEGITIMATE?"

Throughout

thismanual,

we

have been describ-inglocal

PUBLIC

disputesin

which

publicofficials

areinvolved.

These

officials

must worry

aboutthe

public's perception of

any

agreement they accept,

because they serve at the pleasure of the public.

Even

if

you

are not a public official,

you

too

should care about the public's perception of the

agreement. If the public feels the final agreement

isunfair

and

illegitimate, public representatives

may

actively try to

undermine

the agreement.

There

are, of course,

many

ways

toevaluate the

fairness

and

legitimacy of the final agreement. It

may

help everyone to agree

on

some

standards of

fairness inthecourse of the negotiations, toensure

thatthefinalagreement conformstothosestandards of fairness. (Fisher

and

Ury

describe this as

establishing "objective criteria.")

In addition, the public islikely tobe less critical

of

any

agreement

which

isgenerated

by

an "open

and

fair"process. Ifallpartieswithalegitimatestake

in the disputehave been allowed to participate in

the negotiations, then the rest of the

community

may

behardpressedto criticizethefinalagreement.

How

To

Identify

A

Good

Agreement

As

mentioned

above, there

may

be

many

ways

toevaluate a

good

agreement.

One

way

isbased

on

thecontent of the agreement.

Another

isbased

on

the process

by which

it

was

generated.

Roger

Fisher

and

Larry Susskind, in their

work

at the

Program on

Negotiation at

Harvard

Law

School, suggest there are several characteristics to

look for in a "good agreement."

Though

these

characteristics

do

not,

by

themselves, prove thata

finalagreementis

good

or appropriate, they

do

pro-vide a starting point for evaluating the final

agreement.

•

The

agreement should bebetterthanthe alterna-tives to

no

agreementfaced

by

the otherparties totheagreement. Ifitisnot, then theparties

who

have"forgone" their better alternatives in order

to secure the agreement should have

done

so

voluntarily.

•

It is not possible to

make

the agreement better

without hurting another party. Negotiations shouldnotbeconcludedifthereisanother,

more

elegant, agreement that willleave

some

even bet-ter off at

no

expense to

anyone

else.

•

_The

agreement is feasible

and

stable. All

necessarypartiesare

committed

toits

implemen-tation.

Where

performance

of the agreement depends

upon

uncertain eventsinthefuture(e.g.,

elections or judicial rulings), then contingent

agreements or renegotiation provisions are

in-cluded in the agreement in order to prevent the entire agreement

from

unravelling.

•

_The

processforreachingagreementdidnot

harm

relationshipsbetween people

who

willhaveto live

or

work

together in the future. Relationships

shouldimproveas aresultofthe negotiations, not

deteriorate.

•

Allparties totheagreementaresatisfiedwiththe

agreement.

No

one

shouldfeel "taken." In

addi-tion, the

community

atlargeshouldfeelthatthe

agreementislegitimate

and

thata

good

precedent

has been set.

•

The

agreement should accountfor thelatest

scien-tific, technical

and

general

knowledge

related to

the situation.

The

outcome

should be as "wise"

as possible.

•

And

finally, theagreement should be reachedin

a timely

and

cost-effectivemanner.

The

parties

in-volvedshouldfeelthatnegotiationswerethemost