The negotiation process
Question: At the center of the labor dispute between NFL owners and professional football players is George Cohen, a federal mediator known for his work in helping Major League Soccer come to a resolution over its own labor battles. Mediators have no power or authority to compel either side to do anything, but they still have the capability to influence the outcome in nuanced ways. What must Cohen do to bring the more uncompromising members of both sides together to make a deal?
The most important thing a great negotiator must do is establish a process that will determine how the parties can develop relationships, ensure constructive communication, manage conflict and increase trust. In our work we call this the first phase of negotiation development, and the output must be a procedural agreement. When the parties in a negotiation have a history of adversarial relationships and mistrust, a procedural agreement offers a flexible yet powerful framework for codifying expectations and laying a foundation for resolving conflicts and reaching agreement. Such issues as how the parties will communicate with each other, what will be confidential and what can be shared with the public, where the parties will sit, how long the talks will take and so forth are part of this discussion. If all have input in crafting the procedural agreement, the negotiation will be off to a solid start.
After the procedural agreement is ratified, the next step is to help the parties avoid positional bargaining--a widely accepted practice that only generates more conflict and perpetuates a win/lose power struggle. Instead of this traditional method, the negotiator is able to facilitate the parties in stating their real interests; i.e., to state what is beneath the hard-line positions and to articulate what is important to them and why. For example, if the position of the players is that they only want to play 15 games and the owners want the players to play 20 games, the negotiator's role is to help each side make explicit the underlying reasons for their positions and to be clear about those of the other side.
This is best done by asking the "Why?" questions every time a position is stated until it is clear what the underlying interests are. Perhaps the reason why players want a limit on the games played is because they are concerned about the physical damage that can be done to their bodies if the season is extended. The players' health and safety affects their ability to play and their capacity to make any money, and certainly could be an interest of the owners. Interest-based negotiation enables the parties to hear what really matters to each; and once the group can identify those areas of interest that overlap, then they can potentially find common ground.
The next step in the negotiation process is to review the common interests and engage the parties in generating more options for how to meet them. If the concern about players' physical health and safety is a shared interest, there may be options that both could find very helpful and there may be some reasonable choices that neither party ever thought of. Generating as many options as possible frees the group to engage in creative and innovative thinking and helps them avoid getting stuck in the "I am right, you are wrong" cycle of negotiation that rarely leads to resolution and only causes more hostility and resistance.
Once the options have been identified, the negotiator asks the parties to evaluate which ones best meet the interests of both parties and how. At this point it is wise to remind the parties that they are only committing to one issue and what will ultimately be a part of the final agreement. Until all the issues hindering agreement have been discussed and vetted using this process, there can be no binding agreement. This will have been spelled out in a procedural agreement. Often the parties in a complex and emotionally laden negotiation get confused and forget to separate discussion from decision-making.
Once all of the issues have been discussed, the group can proceed to writing a contract. To expedite this process, we suggest the One Text approach in which the negotiator takes everything he has heard from both parties and drafts an agreement. He or she will then distribute the One Text, and each party will be asked to critique it using a set of questions that can quickly identify where there is agreement and where there remains dissent. The draft agreement is given back to the negotiator to incorporate the feedback received. This process may take a lot of time to get to agreement (the Begin and Sadat negotiations used this process and they took 13 days and 23 drafts before coming to agreement). If the negotiation is done well, the agreement will be fair and no one will feel taken; it will serve the key interests of both parties well; and it will be better than either party's walk-away position.
The process of effective negotiation takes time and considerable skill. The smart negotiator knows when to return to the procedural agreement and when to attend to relationship, communication and trust. Whenever there is a breakdown in negotiations, these are almost always the reasons why.