Jayne Seminare Docherty asked:
Negotiation is never the only option for addressing conflicts. Therefore, parties considering negotiation need to ask:
Is negotiation the best option for addressing our issues and problems?
What are the alternatives to negotiation?
Parties should assess their Best Alternative to a Negotiated Agreement (BATNA) both before entering into negotiations and repeatedly during negotiation, since they usually have the option to leave negotiation and enter into other processes for addressing their conflict.
Parties working in the context of instability or change may find it difficult to assess their BATNA. Alternative conflict resolution options may be unclear. The process of negotiation itself may appear risky and fragile because it lacks solid institutional support. In such cases, the parties may need to create relationships and systems that will support the negotiation process. Furthermore, negotiation may only be useful for addressing one small portion of the larger conflict, so that negotiation may need to be coordinated with other conflict resolution activities before, during, and after the negotiators do their work.
If the parties decide to negotiate, they need to be clear about the scope and limitations of negotiation in a context of change and instability. They need to identify:
What problems or issues they will negotiate.
What problems or issues they will address using other means.
What other groups or parties need to be prepared for the negotiation process and for the outcomes of negotiation.
How this negotiation fits into other processes for managing specific problems or issues, their larger relationship, and the changing context.
Jean and Sam End Their Marriage
Divorce is a legal process shaped by the state through the courts. In this respect, Jean and Sam are working in a stable context that offers them the choice between litigation and negotiation. The instability in their situation arises not out of any fragility in the system regulating their negotiation, but out of their need to renegotiate their personal relationships and identities while they are working through the legal issues of their divorce. Assuming they decide to try negotiation, Jean and Sam first need to make some important strategic decisions.
Do they want to negotiate face-to-face or through their attorneys? Negotiating face-to-face allows space to address the problem of redefining their personal relationship, thereby increasing their control over the central source of turbulence in their lives. Face-to-face negotiation minimizes the risk of miscommunication. It can also prevent the problem of an attorney focusing only on the legal issues of rights and responsibilities without taking into account the personal issues of relationship. On the other hand, divorcing couples who negotiate face-to-face are forced to juggle rational problem-solving and highly emotional encounters at the same time. This is why Jean and Sam need to decide whether to use a mediator to help them with the process of negotiation.
If they use a mediator, they need to decide what kind of mediator to employ: an attorney, a counselor, or a mediator at the local mediation center? All options are available in many states. An attorney mediator may be less focused on long-term relationships, and a counselor or community center mediator is probably less knowledgeable about legal issues. If they use a non-attorney mediator, Jean and Sam must consult with their own attorneys about legal issues. If they use an attorney mediator, they may choose to work with a counselor in order to address their relationship issues.
Then, there is the question of Jennifer. The legal system does build in protections for her welfare, but these do not address the turmoil she is experiencing as a consequence of her parents’ changing relationship. How will she be prepared for the outcome of the negotiations? Indeed, at age 16, will she have a voice in the negotiations? Jennifer might have opinions about a number of issues. For example, what limitations will be placed on her parents when it comes to asking Jennifer to carry messages between them? If her parents find new partners, how will they be introduced into her life? There is also the reality that Jennifer’s needs may change after the agreement is negotiated. How will her parents work together to make parenting decisions that address these changes, and what role will Jennifer play in those discussions? Jennifer may be invited to express her preferences on some issues, either in mediation or in a counseling session. Including Jennifer increases her sense of having some control over an unstable situation.
Jean and Sam have many options for successfully managing the following strategic challenges.
Creating a negotiation process or a set of processes that balances and coordinates legal and financial issues with relationship issues.
Ensuring that Jennifer’s needs are taken into account during the negotiation and when they implement the agreement.
Involving Jennifer in the process in ways that help her adjust to the changes created in her life by her parents’ divorce.
The Hard Work of a Corporate Merger
The Acme-Zocon merger and subsequent downsizing of the workforce have introduced instability into the labor-management relationship. Negotiations will probably take place as scheduled, but they are not likely to be routine. The problems associated with developing a new corporate culture, the losses associated with downsizing, and uneven acceptance of the merger within the organization will create problems for the negotiators.
Additionally, the parties must deal with the reality of the global economy. The threat that companies will “exit” their relationship with workers by relocating to other countries has shifted the balance of power between corporations and unions.
In recent decades, many companies have received considerable concessions from workers in order to “preserve their competitive edge while keeping jobs at home.” Sometimes these concessions have been won through hard-bargaining tactics that diminished the power of the union or even eliminated the union altogether. Other times concessions have been achieved by shifting the relationship between management and union from adversaries to partners. The latter tactic involves altering identities and telling new relationship stories, much the way Jean and Sam are telling new stories in the process of negotiating their divorce. All of these issues and possibilities loom over the Acme-Zocon negotiations, and they are amplified by the instability created by the merger.
Acme-Zocon management and labor can mitigate the impact of post-merger instability on their negotiations if they acknowledge the full scope of the problems and issues facing the company. To do this, they will need to think quite differently about their agenda and the purpose of their negotiations. Rather than negotiating only over workplace disciplinary procedures and wage and benefit packages, the parties can also think about how they might use this opportunity to address other merger-related problems. Expanding their agenda in this way will require careful information-gathering. Thus the parties might think about conducting a pre-negotiation listening project with middle management and rank-and-file workers to uncover some of the challenges and issues related to merging Acme and Zocon corporate cultures. A listening project could also reveal the level of satisfaction, concern, or discontent arising out of the merger and the layoffs.
Management and labor representatives at Acme-Zocon can use their negotiations strategically to manage the instability in their context if they consider the following challenges:
Expanding their agenda to accommodate merger-related issues.
Getting information from the various sectors
in the company where the merger is being experienced dif
ferently.
Making their negotiation one part of a larger process to address conflicts arising out of the merger so that Acme-Zocon reaps the full benefits of the merger.
Making Ecosystem Management a Reality
Dialogue processes among ranchers, environmentalists, and federal agency staff have been going on for years in the Southwest. Participants often complain that these dialogues never result in action. Or, the participants think they are negotiating and then one group or the other backs out of the process just as they are about to reach an agreement. This latter problem emerges out of a lack of clarity about the differences between dialogue and negotiation, a lack of careful attention to who is at the table, and failure to ascertain whether those involved are really prepared to negotiate. This demonstrates that great care must be taken in any negotiation to set realistic expectations, clear guidelines for participation, and mechanisms for validating the proceedings as they progress.
The negotiators in our case study are veterans of dialogue projects, relationship-building activities, and confidence-building measures. As a result of participating in these other conflict resolution processes, they now identify themselves as a “radical center” that is ready to “reject the acrimony of past decades that has dominated debate over livestock grazing on public lands, for it has yielded little but hard feelings among people who are united by their common love of land and who should be natural allies.” They have chosen to negotiate about a particular site and a limited set of issues: How can we craft an experimental project for cooperatively implementing and monitoring the effects of ecosystem management in this area over the next five to 10 years?
This negotiation requires a delicate balance between caution and hope. The parties need to know that what they are doing here will not impose significant changes in the positions they and other parties not at the table hold about ranching in the Southwest. At the same time, they need to have some hope that lessons learned through this negotiation and the resulting experimental project might yield positive outcomes for what has been an intractable conflict. Limiting the negotiations to a geographically focused land management experiment is the key to getting full participation and buy-in from the parties without falsely inflating hopes or creating a sense of unacceptable risk. Ensuring that the parties are in fact committed to trying something radically new is also important, and this will need attention throughout the negotiation because pressures from other parties will affect the negotiators’ calculation of risk and their ongoing commitment to the process.
The balancing act between caution and hope is complicated by identity issues. The participants may be prepared to identify with a radical center, but few of them are ready to sever all of their ties with other groups. They will need those other groups if these negotiations fail, and they need those groups to address the larger conflict over grazing on federally-owned lands. Furthermore, successfully implementing a negotiated agreement may require involving other groups in the experimental project, and it will depend on the ability of the federal agencies to sustain a funding stream and clear mandate for the project over the next five to 10 years. Working with other parties includes communicating clearly about the limitations of the project and creating mechanisms for involving others as negotiations and the experiment progress.
As with many multiparty environmental negotiations, facilitators have been hired to help manage the negotiation. The facilitators can help the parties manage the instability of their context by focusing attention on and helping them develop skills to meet the following challenges:
Making sure the parties have delineated their agenda and the scope of their negotiations clearly and carefully.
Helping the parties manage and balance the main negotiations with their behind-the-table negotiations.
Helping the parties work together across stakeholder group divisions in ways that respect their need to hold positive relationships with others who share their identity (ranchers, environmentalists, etc.).
Preparing the parties to educate others and involve them in the experimental project once it has been negotiated.
Helping the parties address the effects of turmoil created by the actions of other parties who are not at the table.
Practical Implications
The parties in our case studies are more likely to succeed in creating and sustaining a negotiation process if they coordinate negotiation with other processes for addressing a conflict. Jean and Sam may want to use a counselor as well as a mediator during their divorce negotiations. Dialogue processes that involve other stakeholders may need to continue alongside negotiations. The parties may agree to negotiate one problem but reserve the right to sue one another over other problems. These limitations should be made as clear as possible when negotiations commence in order to avoid hard feelings and resentment later.
Reprinted from The Little Book of Strategic Negotiation. Copyright by Good Books ( www.goodbks.com ). (October 2004;$4.95US; 1-56148-428-8) Used by permission. All rights reserved.