The negotiations discussed
herein will be those conducted on behalf of someone else—an employer, a
government, a client, etc.—not on your own behalf.
To the extent that the contents of this book assist individuals to
negotiate on their own behalf, well and good. But a man acting for himself
can be as careful or as careless as he chooses—and that is his own
business. The primary purpose in preparing this work is to better equip
those who negotiate on behalf of others—particularly those who represent
our country.
It should be clearly understood that there is a vast difference between
talks, discussions, consultations, conversations, conferences, etc., and
genuine negotiations.
Perhaps the best way to make this distinction clear is to point out that
such talks usually precede a negotiation and once such important matters
as agreements, treaties, contracts, etc., are negotiated, there are always
problems that arise which can be adequately taken care of by persons not
skilled as negotiators. These persons consult, discuss, talk over lunch,
etc., in an effort to settle the problems, but they do not negotiate.
Negotiation is a peaceable procedure for reconciling, and/or compromising
known differences. It is the antithesis of force and violence. A
negotiation will be fruitful or completely meaningless, depending upon the
existence of two essential elements. There are other less important
elements, but two are absolutely essential.
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These two elements are
good faith and flexibility. Both must be present on both sides of the
table—one without the other on either side is a fatal defect.
Obviously, differences of opinion or disagreement must exist or there
would be no need for a negotiation in the first place. In this
situation the parties have concluded that they should try and act as
grown and mature men and attempt to settle their differences amicably
through negotiation.
Good faith and flexibility cover many facets. By good faith is meant
an honest desire to reach agreement on the differences which exist
through compromise and a realization that the agreement thus reached
should be fair and reasonable for both sides, if the agreement is to
endure.
A negotiation must not be viewed as an adversary proceeding, such as a
case in court, where one party wins and the other loses.
If one party at the table is trying to take an unfair advantage of the
other party, the element of good faith is not present, hence you have
no real negotiation.
The existence or non-existence of good faith is sometimes difficult to
determine with assurance, but there will come a time when a good
negotiator will be able to tell if this essential element is missing,
even though he may indulge the “hunch system” described by Judge
Jerome Frank for deciding cases.
The second essential element of flexibility is the heart of a
negotiation.
In every negotiation it must be assumed—unless you are dealing with
juveniles—that your opposite numbers will always table maximum
positions first. Equally important, it must be assumed—unless you are
dealing with fools—that your opposite numbers have not disclosed their
minimum positions in any manner.
The challenge to the able negotiator, therefore, is to start with the
tabled maximum positions and by skillfully using all of the tools in his
kit, reach the essence or basic minimum positions upon which an
agreement can and should be concluded.
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If a negotiator is unable
to obtain any concessions whatsoever from the tabled positions, then
either the element of flexibility is missing or the negotiator is
inept, in which event you find yourself with no negotiation at all.
As in the case of good faith, it may be difficult and time consuming
to convince yourself that what you are facing is a set of
non-negotiable demands, but here again a good negotiator will see the
handwriting on the wall and eventually realize just the situation he
is in.
The crucial and delicate decision to be made by the negotiator is—are
his opponents still negotiating for advantage or is their position
truly flexible, as it appears to be?
The proof of good faith and flexibility are established at the
negotiating table, not by self-serving statements or protestations,
either before or during the negotiations. A good negotiator knows that
only by tangible manifestations can these elements be shown to exist.
Thus, it is somewhat naïve to take the position that you will not
negotiate on known differences until the other side has given
assurances, satisfactory to you, and prior to the negotiations, that
the negotiable positions are such that an agreement can be reached.
This is like two people wanting to play poker but one refusing to sit
down at the table until assured by the other that he will be dealt
cards he can play and bet on. If both sides have known differences and
both sides say they want a settlement of those differences by
negotiation, then both sides should go to the table and test each
other’s good faith and flexibility. If the negotiator eventually
concludes that these essential elements do not exist, he must proceed
to make the record clear for all to see and suspend the so-called
negotiations, in a manner which unmistakably places the onus on the
non-negotiating party.
This takes courage, but as we shall see later, a negotiator who lacks
this courage should not be at the table in the first place.
There are two distinct types of negotiations. First, there is the type
whereby one or both sides know exactly what the other side wants
before going to the negotiating table, and secondly the type
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whereby both sides have
agreed on a general objective but the actual positions of each side
are not known until the parties reach the table.
For example, in a government contract negotiation, the government
negotiators will have a proposal or bid from the contractor prior to
the so-called negotiation.
This type of negotiation requires less adroitness on the part of the
negotiator because the element of surprise is almost non-existent. Here the
negotiator has had an opportunity to study and analyze the positions
of the other side and he will come to the table prepared to refute,
rebut or compromise these positions.
Where, however, two parties have agreed to negotiate toward an
objective, but have filed no detailed position papers, you have a
situation requiring the greatest of skill and dexterity.
We shall be considering primarily the latter type of pure negotiation,
the essence of which requires that a very close watch be kept of all
your positions and points until the negotiations commence and the
ability to deal with opposing positions without the benefit of prior
knowledge and study.
If a negotiator can become proficient in this big league of
uncertainty, surprise and intrigue, he can easily adapt to the minor
league, where he obtains the opposing position in advance of the
negotiation. The reverse is not necessarily true.
In either situation, however, the negotiator should have the same
attributes, training and general ability, if maximum results are to be
forthcoming.
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