NEGOTIATING WHILE MINIMIZING CONFLICT

A Brief Comparison and Contrast of
Gerald Williams
and
Roger Fisher
by
Thomas A. Leggette

 

I. INTRODUCTION
II. TIT-FOR-TAT PLUS ONE: THE TWO-STEP RESPONSE
III. PRINCIPLED NEGOTIATION
IV. CONCLUSION
SELECTED REFERENCES

 

I. INTRODUCTION

A. For Gerald Williams, negotiation is a ritual. In carrying out that ritual, he believes that the majority of researchers have found that the best strategy is TIT FOR TAT. TIT FOR TAT is merely the strategy of starting with cooperation, and thereafter responding in like fashion to whatever the opponent did to you the last time.

1. TIT FOR TAT was the winning program submitted by Professor Anatol Rapoport to Robert Axelrod's computer tournament based on the classic Prisoners' Dilemma.1

a. Entries came from game theorists in economics, psychology, sociology, political science, and mathematics.

b. Axelrod's tournament had been fueled by the question "When should a person cooperate, and when should a person be selfish, in an ongoing interaction with another person?"

2. William's recognized that there was a flaw in TIT FOR TAT. The flaw is that one can end up in a downward spiral of escalating emotions if one side misperceives the intent of another and reacts negatively. His corrective response was TIT FOR TAT PLUS ONE.

B. For Roger Fisher, negotiation is a fact of life. He advocates the method of PRINCIPLED NEGOTIATION.2 It is a problem solving strategy which is based on four principles, to wit: (1) separate the people from the problem; (2) focus on interests, not positions; (3) invent options for mutual gains; and (4) insist on using objective criteria.

1. More recently, Fisher has recommended building better problem-solving relationships by using an unconditional constructive strategy.3 This means that one would do both things good for the relationship and good for himself, regardless of whether his opponent reciprocates.

2. Fisher rejects the traditional TIT FOR TAT strategy because of two weaknesses. First, in traditional TIT FOR TAT parisian perceptions are likely to lead to a malignant spiral. Second, if the goal is to build better problem solving relationships, TIT FOR TAT overlooks that you will be better off learning more about your opponent with respect to each concept, regardless of how your opponent responds. For example, the more you learn about an opponent, the better you will be able to anticipate his actions even if they are malicious.4 Fisher does not consider TIT FOR TAT PLUS ONE.

C. The second step, i.e., PLUS ONE, of William's TIT FOR TAT PLUS ONE was added specifically to avoid the problem of parisian perceptions and the downward spiral. Thus, William addresses at least indirectly one of Fisher's primary criticisms of traditional TIT FOR TAT.

1. William's TIT FOR TAT PLUS ONE does not appear to address Fisher's other criticism of traditional TIT FOR TAT. However, it is not necessarily clear that one would want to build a better problem-solving relationship every time one negotiates. Nor does one necessarily want to engage in a problem solving strategy every time one negotiates.

2. Neither does it appear that TIT FOR TAT PLUS ONE and PRINCIPLED NEGOTIATION are mutually exclusive. Both techniques can -- but don't have to be -- used at the same time. Or one technique can be used instead of the other.

II. TIT-FOR-TAT PLUS ONE: THE TWO-STEP RESPONSE.

A. AS A MODEL FOR COOPERATIVE & AGGRESSIVE NEGOTIATION

1. Conditionally willing to cooperate;

2. It retaliates perfectly, which means:

a. Immediately,

b. Unambiguously, and

c. Appropriately;

3. It is perfectly trustworthy (it never moves aggressively unless attacked);

4. It forgives perfectly, which means:

a. Immediately,

b. Unambiguously, and

c. Appropriately;

5. It does not object to gains made by the other side;

6. It is perfectly patient (it doesn't try to shortcut the negotiation process); in other words, it honors the ritual of negotiation.

B. PLUS ONE: THE SECOND STEP.

1. Whenever you move aggressively, or in a way that might be interpreted as aggressive, always add "softener" or "buffer."

a. signals your desire for open, cooperative climate

b. reduces the likelihood the other side will take offense

c. eliminates need for other side to respond aggressively

C. "SOFTENERS", "SPIN", OR "FEEDFORWARD"

1. Show empathy -- expresses interest, concern for other party

2. Recognize and openly acknowledge the other party's point of view; don't be bothered that it is different from your own

3. Show you are willing to change your mind

4. Admit you may be wrong

5. Assure opponent that things will work out

6. Promise to be fair

7. Promise to make necessary concessions at the appropriate time

8. Use consultations with and permission of your client as a buffer

9. Express that it is important to keep the dialogue open.

10. Examples from a plea bargain negotiation:

I just don't know what to do about this. The last thing I want to do is cause a problem for you or the department. I don't know if I can control my client or his parents. What do you think I should do?

Don't get the idea I'm threatening you.

I am pleased.

 Don't misunderstand me.

D. BUFFERS -- WHEN YOU MUST SAY "NO," USE A BUFFER TO REDUCE THE HARSHNESS.

1. If you need a moment to think, restate the question.

2. Acknowledge the other side's interests and needs.

3. Don't flatly refuse; give reasons; leave the door somewhat open.

4. Elaborate the reasons that weigh against granting the request.

5. Explain it is premature.

6. Condition concessions on obtaining the client's approval.

7. Keep options open; leave room for appropriate solutions.

III. PRINCIPLED NEGOTIATION

A. BUILD WORKING RELATIONSHIPS, DON'T REACT TO EMOTIONS -- SEPARATE THE PEOPLE FROM THE PROBLEM

"Everyone knows how hard it is to deal with a problem without people misunderstanding each other, getting angry, or upset, and taking things personally." If we fail to appreciate how differently our partisan perceptions cause each of us to view the world, we will disproportionately take our own interests into account. This will interfere with our ability to solve problems.

1. Turn The Opposition Into Someone You Know -- Build Working Relationships As You Negotiate.

Be unconditionally constructive, rather than relying on reciprocity.

Remember Ben Franklin's technique of asking to borrow a book from a foe so that he could turn that foe into a friend.

a. Consult Before Deciding

"Ultimately it is my responsibility to decide how best to .... But before I make any decision, I'd like to hear your views ...."

b. Avoid Early Commitments, Remain Open to New Information

"We will consider every opportunity to avoid a strike, and we are always open to new ideas from ...."

"Even though you feel ..., I have decided, at least for now, not to .... If you will ..., I am prepared to consider ...."

2. Don't React To Emotions, Yours or Theirs

a. Recognize and Understand Emotions

Ask yourself: what is producing the emotions? are they responding to past grievances? are emotions spilling over from one issue to another? what do they care about?

"You know it seems like you are upset about something. Maybe we should talk about what's making you upset before we continue with our talk about ...."

b. Remember to "Go to the Balcony" -- Don't React

Remember Thomas Jefferson's adage: "When angry, count ten before you speak; if very angry, a hundred."

c. Active Listening

"Let me see if I understand what you're saying. It sounds like you think...."

"Did I understand correctly that you are saying...."

"From your point of view, the situation looks like...."

d. Acknowledge the emotion

"I can see why you feel strongly about this, and I respect that. Let me tell you, however, how it looks from my angle...."

"You know the people on our side feel we have been mistreated and are very upset. We're afraid an agreement will not be kept. Personally, I think we may be wrong in this feeling. Do the people on your side feel the same way?"

e. Allow The Other Side To Let Off Steam

Allow the other side to continue until he or she has said their last word.

f. Use I Messages, Rather Than Assign Blame

"I feel let down," instead of "You broke your word."

B. IDENTIFY INTERESTS -- FOCUS ON INTERESTS, NOT POSITIONS

A position is the concrete things that one wants; interests are the intangible motivations that lead one to take the position -- one's needs, desires, fears, and aspirations. One needs to identify both sides' interests in order to reach an agreement. To have a good solution to a problem, it should meet your interests as well as mine.

To help identify interests ask:

1. Ask Why? Look Forward For The Purpose.

"Why is it that you want that? Why do you want...? What is the problem...? What are your concerns...?"

"I'm not sure I understand why you want that. Help me to see why this is important to you?"

"I hear what your saying. I am sure the company policy has a purpose, could you explain it to me?"

2. Ask Why Not?

"Why not do it this way...?"

"What would be wrong with this approach...?"

3. Reframe, And Draw Them Into Problem Solving.

Consider Senator Joseph R. Biden, Jr.'s approach: "Mr. Gromyko, you make a very persuasive case. I agree with much of what you've said. When I go back to my colleagues in the Senate, however, and report what you've just told me, some of them -- like Senator Goldwater or Senator Helms -- will not be persuaded, and I'm afraid their concerns will carry weight with others." "You have more experience in these arms-control matters than anyone else alive. How would you advise me to respond to my colleagues' concerns?"

"Look, we're both lawyers. Unless we try to satisfy your interests, we are hardly likely to reach an agreement that satisfies mine and vice versa. Let's look together at how to satisfy our collective interests."

"If I understand what you're saying, your interests are in ..., ..., .... Is that right?"

4. Negative Inquiry

"I don't understand, what is it about ... that is bad?"

5. Don't Forget Basic Human Needs

Security; economic well-being; a sense of belonging; recognition; and control over one's life.

C. INVENT OPTIONS -- DEVISE CREATIVE OPTIONS TO SATISFY INTERESTS.

Devise creative options by: (1) separating the act of inventing options from the act of judging them, (2) broadening the options on the table rather than looking for a single answer (shuttle between the specific and the general), (3) searching for mutual gains, and (4) inventing ways of making the decision easy.

Ask What If?

What if we were to...?

How would you suggest that we get it accomplished?

What would you suggest that I do...?

What would you do if you were in my shoes...?

What would you say to my constituents...?

D. STANDARDS OF FAIRNESS

"The more you bring standards of fairness, efficiency, or scientific merit to bear on a particular problem, the more likely you are to produce a final package that is wise and fair. The more you and the other side refer to precedent and community practice, the greater your chance of benefiting from past experience."

1. Agree on Standards -- Ask "What's Your Theory?"

Where do you suggest that we look for standards to resolve this question?

Does ... have standard specifications for ...?

What's your thinking about what makes that fair...?

Does our competition throw in that service for free...?

How did you arrive at that figure?

What makes that fair? You must have good reasons for thinking that is a fair solution. I'd like to hear them?

2. Agree on a Procedure

For example, having one child cut while the other child chooses.

Pick someone you both regard as fair and give him a list of the proposed criteria and ask either for his advice or for him to make a decision

Pick someone you both regard as fair and ask him to give advice on what standard to use in settling the matter.

E. WHEN TO WALK AWAY

The reason to negotiate is to determine whether you can satisfy your interests better through a negotiated agreement than you could by pursuing your Best Alternative to a Negotiated Agreement (BATNA).

Hence determine both yours and their BATNAs.

F. PROPOSALS

Consider developing 3 proposals.

What do you aspire to?

 What would you be content with?

What could you live with?

IV. CONCLUSION

A. William's TIT FOR TAT PLUS ONE and Fisher's PRINCIPLED NEGOTIATION are not mutually exclusive. William's approach focuses more on the manner in which you set forth your client's own proposals when engaged in the negotiation ritual. ("It ain't so much what you say, but how you say it.") Fisher's unconditional constructive strategy also focuses on the manner in which you: prepare to negotiate, negotiate, and build better problem-solving relationships.

B. Fisher's PRINCIPLED NEGOTIATION is a problem solving strategy which can be used when you negotiate. It provides concepts which serve as guiding lights to help identify, among other things, the interests of both sides, options that are available, and standards for fairness which help take the confrontation out of negotiation. PRINCIPLED NEGOTIATION is especially useful as a framework to help one prepare ahead of time for a negotiation session. Indeed, Fisher's Getting Ready To Negotiate is a workbook to help one prepare for a negotiation. It identifies seven elements of negotiation which provide a checklist for preparing for a negotiation. The seven elements are: interests, options, alternatives to negotiating, legitimacy, communication, relationship, and commitment.

This article is not provided for use or reliance by you or any third parties and does not purport to be exhaustive or to render legal advice for your particular situation or any other specific case. It is meant merely to assist you in sharpening the questions you might ask of your legal advisor in your particular case. Please give me a call should you have any questions. (See: Disclaimer)

 
SELECTED REFERENCES

Roger Fisher, William Ury, and Bruce Patton, Getting To Yes (2nd Ed. 1991)

Roger Fisher and Scott Brown, Getting Together (1988)

William Ury, Getting Past No (1993)

Roger Fisher and Danny Ertel, Getting Ready To Negotiate (1995)

Gerald Williams, Effective Negotiation and Settlement (1981)

Gerald Williams, Legal Negotiation and Settlement (1983)