University of Lusaka

Alternative Dispute Resolution (ADR)

Unit 2
NEGOTIATION
UNIT 2

► What is Negotiation?
► Negotiation stages
► Negotiation strategies
► Tactics
► Theory v Reality
 What is it?
► Whilst there is no set definition, it could broadly be understood
as trying to get a good, or the best deal possible in a given
situation
► Think of all the possible situations that you have to/have had to
apply some negotiation on a daily basis
► More often than not, in those circumstances you are/were
striving towards an arrangement that is self serving only
► Equally, the other negotiator also had their own interest at
heart…
► The point of a negotiation is not to win. It’s to get the best
possible deal.
► The fact the you have entered into a negotiation in the first
place means you are open to settling for less than what you
initially wanted
What is it?
► If you are negotiating for a third party’s interest(on
behalf of), you need to be more flexible in your
approach
► Focus on problem solving and trying to satisfy the
parties' interests without shifting the blame to
either/any side (determining who is right and who is
wrong)
► The process should involve informal and unstructured
discussions through which, by the end, you should have
reached a mutually satisfactory agreement  
► As you engage in your dialogue, some points to consider
are that:
► Identification of the issues in contention
► Disclose parties’ needs and interests
► Identification of possible settlement options; and
► Negotiate the terms and conditions of your resolution
How to go about it
► Every negotiation you will encounter is different
but each will generally require you to address the
substance of the conflict as well as the procedure
dealing with it
► In order to do this you will have to listen twice as
much as you speak, this is particularly when
addressing the substance
► because
► Is it possible to change someone’s mind if you don’t even
know what they are thinking??
► Make an effort to listen to the other side so that you can
understand them. This will be the cheapest concession in
your entire dispute resolution
Two ears to listen twice as
much
► Successful negotiators listen more for their own benefit and
not necessarily the other party - self preservation
► Human beings respond more to emotion than they do logic and
if the situation escalates, negotiations may quickly become
hostile. You are then in a position where you lose your ‘cool’
and everything goes downhill from there
► Assume control through self accountability
► That means:
▪ If you feel you are becoming overwhelmed with emotion:
▪ Pause (Pause for as long as you have to)
▪ Breathe
▪ Then speak
▪ In real time, it won’t always be possible to hold your temper.
This is a skill that can only be acquired over time
Preparation for the
negotiation
► There are certain situations in which you may have an
opportunity to prepare yourself for negotiation, take
advantage of the situation and do your homework
► If the opposing party is of another cultural background,
find out their culture, speech, personal style, body
language etc.
► Don‘t criticise or reject their position out of hand or
turn
► This will allow you to be in control and to be able to
listen effectively
► Remember, through listening you can adequately
address the substance of the conflict
 Talk that talk
► What you need to do is:
❖ State your position- LISTEN- exchange -LISTEN- and the cycle continues
❖ Don’t concede without exchange, you should have some sort of satisfaction in
the end
❖ In the game of negotiations you need to be witty, try to use party B’s
objections to support your case, or start with an unreasonable offer and then
make concession
❖ Let silence and patience do the work for you
❖ Act confident and wait
❖ Remember to listen twice as much as you speak
Negotiation stages

► There are basically eight (8) stages in negotiation:

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

► Conflict lies in each side’s perception of the problem

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

► A negotiator must recognise and understand emotions

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

► The first step is to identify the parties' interests

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

► Once the parties have identified their interests, they

must discuss them together. If a party wants the other
side to take their interests into account, that party
must explain their interests clearly
► The other side will be more motivated to take those
interests into account if the first party shows that they
are paying attention to the other side's interests
► Discussions should look forward to the desired
solution, rather than focusing on past events. Parties
should keep a clear focus on their interests, but remain
open to different proposals and positions
Invest options for mutual
gain
► There are four major obstacles that inhibit invention of
options:
(a) premature judgment;
(b) searching for the single answer;
(c) assumption of a fixed pie;
(d) thinking that “solving the problem is their problem.”
► There are four basic steps for inventing options:
Step 1: define the problem;
Step 2: diagnose causes of the problem;
Step 3: approaches- what are possible strategies?; and
Step 4: action ideas
Invest options for mutual
gain
(1) brainstorming (define purpose; choose a few participants;
and, clarify ground rules);
(2) post-brainstorming (identify most promising ideas; invent
improvement of promising ideas; and, evaluate ideas and decide).
 Invest options for mutual gain

► Negotiators must broaden the options on the table rather than looking
for a single answer
► Furthermore, negotiators must look for options for mutual gain:
(a) identify shared interests:
(b) Shared interests lie hidden in every negotiation;
(c) shared interests are opportunities;
(d) Stressing shared interests can make the negotiation smoother
► Make their decision easy:
(a) without some option that appeals to other side there will be no agreement;
and
(b) option must be viewed as legitimate.
Use objective criteria

► When interests are directly opposed, the parties should

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

► The first step is to develop objective criteria. Criteria

should be both legitimate and practical. There are
three points to keep in mind when using objective
criteria:
(i) each issue should be approached as a shared search for
objective criteria.
(ii) each party must keep an open mind. They must be
reasonable, and be willing to reconsider their positions
when there is reason to; and
(iii) negotiators must never give in to pressure, threats, or
bribes.
When the Other Party Is
More Powerful (alternatives)
► No negotiation method can completely overcome
differences in power
► Often negotiators will establish a “bottom line” in an
attempt to protect themselves against a poor
agreement
► The bottom line is what the party anticipates as the
worst acceptable outcome. Negotiators decide in
advance of actual negotiations to reject any proposal
below that line
► Having already committed oneself to a rigid bottom line
also inhibits inventiveness in generating options
When the Other Party Is
More Powerful (alternatives)
► A skilled negotiator usually serves as advocate for one
party to the negotiation and attempts to obtain the
most favourable outcomes possible for that party
► The negotiator attempts to determine the minimum
outcome(s) the other party is (or parties are) willing to
accept, then adjusts their demands accordingly
► A “successful” negotiation in the advocacy approach is
when the negotiator is able to obtain all or most of the
outcomes their party desires, but without driving the
other party to permanently break off negotiations,
unless there is a Best Alternative To a Negotiated
Agreement (BATNA)
 BATNA
► A BATNA is an alternative approach to a negotiation agreement which can
be used in the event that a negotiation stalls
► Power in a negotiation comes from the ability to walk away from
negotiations
► Thus the party with the best BATNA is the more powerful party in the
negotiation
► Generally, the weaker party can take unilateral steps to improve their
alternatives to negotiation. They must identify potential opportunities and
take steps to further develop those opportunities. The weaker party will
have a better understanding of the negotiation context if they also try to
estimate the other side's BATNA
► In developing a BATNA, one must:
(a) invent a list of actions possible if no agreement;
(b) improve some of ideas from list, create practical alternatives; and
(c) select the alternatives that seem best.
Advantages of principled negotiation

1) Principled negotiation provides more satisfying results for the parties, as

it deals with their underlying needs and interests and thereby
establishes agreements which are more likely to be adhered to.
2) It is efficient, in that parties look more creatively at a range of options
for dealing with their problem, and reduces the likelihood of stalemate or
leaving anything of value at the negotiation table.
3) It provides a basis for a better relationship between the parties by
dealing with emotional and interpersonal dimensions of conflict and taking
account of future relations between the parties.
4) It provides legitimate standards (objective criteria) for evaluating and
accepting settlement options, without the parties appearing to be unduly
compromising.
Critics of principled negotiation
► It trivialises conflict thus undervaluing the role that
situation and context play in handling conflict.
► It does not differentiate interests from objectives. The focus
on the concept of “interest” flattens out the complexity of
human interests, values and beliefs upon which interests are
hinged
► It is not applicable in zero-sum game situations- it only
provides workable solutions as long as the parties' interests
are compatible, but not when they are directly opposed
► It overlooks the fact that some parties have ulterior
motives for taking part in the negotiations i.e. to exact
revenge, to discover information or simply to get the thrill of
competitive confrontation.
Critics of principled
negotiation
► Its interest-based bargaining assumes a rough equality
in power between the parties.
► It overlooks the impact of psychological barriers on
the parties' perception of interests, mutual gain and
even objective criteria.
 2. Positional negotiation

► Positional bargaining is a negotiation strategy that

involves holding onto a fixed idea, or position, of what
you want and arguing for it regardless of any underlying
interests
► It is a solution centred approach to negotiation
Styles of Positional
Negotiators
► Positional negotiators often viewed as either a “hard”
or “soft” bargainers:
► By “hard” bargainer, this means:
(a) participants are adversaries;
(b) goal is victory;
(c) demand concessions as a condition of the relationship;
(d) try to win a contest of wills; and
(e) apply pressure.
Styles of Positional
Negotiators
► By “soft” bargainer, this means that the:
(a) participants are friends;
(b) goal is agreement;
(c) make concessions to cultivate the relationship;
(d) be soft on the people and the problem; and
(e) trust others
Dangers of positional
negotiations
► Produces unwise agreements in that:
(i) position tied to ego;
(ii) Negotiators locked into positions; and (iii) As more
attention is paid to positions, less attention is devoted to
meeting the underlying concerns of the parties.
► Arguing over positions leads to inefficiency. It is an
incentive to stall settlement. This is so because the
agreement requires concession
► Endangers on-going relationships. It leads to a contest
of wills while anger or resentment may result from
concessions required to reach an agreement
► Varying positions can complicate positional bargaining.
 Tactics of positional
negotiator
► Typically, a positional bargainer will use three manoeuvres:
(i) Forcefully assert positions;
(ii) Attack ideas; and
(iii) Attack negotiator
► Other tactics include:
(a) Hard-Bargaining Tactics. These are often characterised by extreme claims,
followed by small, slow concessions
(b) Commitment Tactics: one party persuades the other that there is no freedom
of choice in a particular issue
(c) “Take it or Leave it” Offers. One party threatens to end negotiation if offer is
not accepted e.g. “take it today or it’s gone”. The risk is that if both sides play,
they will be no deal
Dealing with a positional
negotiator: Negotiation Jujitsu
► When a positional bargainer asserts his position, look
behind that position to identify the interests and when
your ideas are attacked, invite criticism and advice
► If necessary, use silence- besides creating an
impression of a stalemate, silence tend to feel
uncomfortable with silence, especially when they have
doubts of the merit of their position
► Using a third party (the “one-text procedure”) could
be helpful. This is so because:
(a) Third party explores interests of each party;
(b) Third party devises draft solution;
(c) Present draft solution to each party; (d) Third party
revises draft until reaches “final” version
Other Tools

► Changing the game: Stay with your game by not letting

the hard-bargainer inhibit you from staying focused.
► “Name the Game”: Share your perceptions of what the
other party is doing and also show that you can play the
same game. If need be, change the players by removing
certain parties; or add neutral third party to assist
Getting past “No”

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

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

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

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

frustrating, parties switch from problem solving game
to power game
► Use power to educate- thus, the only way for them to win
is for both sides to win e.g. ask reality-testing questions
Most rules have exceptions

► Generally, it is accepted that negotiations do not

involve third party intervention
► However, not every negotiation can be solved
between/amongst the disputing parties
► The aid of a third party needs to be put on the table as
an option depending on the dispute in question
► Think of negotiation as an animal. Each negotiation
needs to be handled differently
Most rules have exceptions
► Third party interveners are useful in negotiations for a
number of reasons:
I. They can bring parties together
II. They can establish ambiance for negotiations
III. They can communicate appropriate information
IV. They can help parties clarify values
V. They can hep parties to deflate unreasonable claims
VI. They can help parties to loosen commitment
VII. They can help parties to seek joint gains
VIII. They can keep the negotiations going
IX. They can articulate rationale for agreement
► Can you think of what other ways third party
intervention is useful in negotiations?
Most rules have exceptions
► There are four common types of interveners.
❖ A facilitator is a person who brings parties together for a
negotiation.
❖ A rules manipulator is a person who provides the rules
for the negotiation. For example, your mother was a rules
manipulator when she set up the following rule for dividing
a small pie between two siblings. "One cuts the pie and the
other chooses the first piece."
❖ A mediator is a person who helps in the negotiation, while
an
❖ Arbitrator helps in the decision. Mediators don't dictate
solutions, but arbitrators do. However, arbitrators do try
to get agreement, since, if disputes are not settled
amicably, often the agreements maybe inefficient. That is,
there maybe other solutions where both sides are better
off
The last two types should have you thinking about the
interconnectedness of ADR mechanisms
Theory v reality

► If you apply the ‘text book’ approach to negotiating,

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

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

► This is not to say that you should discard the valuable

information that you will/have received from critically
acclaimed books, materials, or even what you have
previously learnt in class, at work or elsewhere
► That information is crucial (your foundation) and should
remain at the back of your mind always
► However, be aware of the risks of religiously applying
that information
► Any idea why?
Theory v reality

► All the students in your class (yourself included) are

taking ADR and are receiving the same information from
the same book, which dictates that the stages in
negotiations involve:
► This information, and more, is available not only to you
and your class mates, but also to a vast number of
students elsewhere in Zambia, as well as outside.
Furthermore, there are skilled professionals across a
wide array of disciplines being trained using the same or
similar information 
► Consequently, your entire strategy may quickly be
deciphered
 What to do
► To guard against a situation like that arising, you need to
familiarise yourself on the rules surrounding negotiation so
that you can be the best player in the game
► Think of it this way, you may have knowledge of the rules, but
most likely, your opponent will too and will beat you even
before the games begin
► On the other hand, if you have no idea what the rules are, you
will be intimidated and at loss of what the nest move should
be
► What’s a possible solution?
Interrogate the information (learn it)
Assimilate the information (understand )
Next, customise the rules so that they work for you (break them)
Remember, every rule was made by people no smarter than you are
 Readings include
► Raiffa H “The Art and Science of Negotiation”
► Karrass CL “The Negotiating Game”
► Boulle L “Mediation: Principles, Process, Practice ’ 
► Funken K ‘Shortcomings and Limitations of Principled Bargaining in
Negotiation and Mediation’
► Patton B, Fisher R & Ury W “Getting to Yes”
 End
Thank you for your
attention!