Negotiation Planning and Preparation

In complex or highly escalated conflicts, a lot of preparation must be done, both by the parties, and by the mediator (if there is one) in order to maximize the likelihood of success. Before substantive negotiations begin, the parties must decide who will be involved, what issues will be addressed, and how the negotiation process will be structured and run. Since such decisions must be agreed to by all sides, this is often referred to as "pre-negotiation"–it is a preliminary negotiation about how the actual, substantive negotiations on the issue in dispute will take place.

Who should be involved: It is generally agreed that all the parties to a conflict need to be represented in the negotiations. That does not mean, of course, that everyone involved needs to be seated at the table. But people who are generally seen as "leaders" or direct representatives of the interest groups need to be present. While ideally it is desirable to have the actual "decision makers" at the table, this is often not practical, especially for protest groups, which tend to be very amorphous and fluid in leadership and membership. No one person can speak for or bind the whole group–the best they can do is give a sense of the group's interests and concerns and then take any proposed agreements back to the group for its consideration.

Generally it is helpful to have the same people involved in both the pre-negotiation and the negotiation phase. This allows the negotiators to build up a positive history of working together which facilitates coming to agreement, later, on hard issues. If the interest group can commit to having a person with decision making authority at the table, then it is desirable to have a university administrator with decision making authority present as well. Most often, however, each side will send "representatives." In this case it is extremely important that those representatives have the ear of the decision makers, and report back to them and from them often. (This is discussed more below.)

Another common issue concerns the involvement of extremists. Some experts advocate the exclusion of extremists because they tend to resist compromise and may even block dialogue. Others feel that extremists should be involved in an effort to show them that there is a better way to get what they want. Some extremists just want to be listened to, and if they are allowed to speak and be heard, then they may be willing to sit down and let the negotiations proceed. At other times, the group will reign in the extreme members themselves, realizing that those extremists are blocking progress for everyone. Thus, just because some people involved in a conflict are taking extreme views does not mean that all of the participants are equally extreme. It is often possible to start a dialogue with the more moderate members of a protest group, who will then "bring in" the more extreme factions later on if the results they are getting are good. The same is true if one administrator is seen to be especially rigid. Students can go to someone else who is more supportive of their cause and work through the administration from that point. The goal, in either case, is to figure out where the leverage is, and try to work from there.

What issues will be addressed: When planning the scope of the negotiations, it is important to not try to do too much. The best that can be realistically expected is an incremental step toward social justice. Efforts to find a comprehensive resolution which would eliminate all such conflicts in the future are unlikely to succeed. If one starts with small goals, it is often easier to work out from there. If one goes for everything at once, the likelihood of complete failure, and the inability to agree on anything is more likely. Sometimes it is possible to start with a broad "agreement in principle" and use the negotiation as a mechanism for working out the details. In either case, issues which fall outside of the scope of the negotiation can be handled using the constructive confrontation processes discussed below.

Determining When a Mediator's Help is Needed: One of the key decisions the parties must make is whether to negotiate directly, or whether to enlist the assistance of a neutral third party (usually a mediator or a facilitator). While negotiations can be run successfully by the parties themselves, when conflicts involve multiple parties or are very escalated, it is usually beneficial to retain the services of a skilled mediator. On the other hand, good mediators are generally expensive, so they shouldn't be used when they are not really needed. Nevertheless, when the issue is important and the parties are really "stuck," mediators can help the parties improve their communication, limit misunderstandings, build trust, control escalation, discover underlying commonalities of interest, foster the development of creative win-win solutions, and develop workable implementation and monitoring strategies. Unlike arbitrators, mediators do not rule on which side is right and which is wrong, nor can they impose any solution. Sometimes they will be willing to listen to the discussion and suggest possible solutions, but the decision of whether or not to accept any proposed solution lies with the parties themselves. Therefore, parties are not losing power by enlisting the help of a mediator. While all of the tasks that a mediator does can be done by the negotiators alone, most people are not skilled in these processes, and the tension between them makes success less likely. Thus, using a skilled mediator to guide the discussions is often highly beneficial.

Selecting a Mediator: It is important to select a mediator who has the trust of all of the parties, and who is insulated from conflicts of interest. A University ombudsman, who reports directly to the president or the chancellor, who is also one of the parties, is unlikely to be a good choice. An ombudsman from another school might have credibility, but it might be better to go outside academia entirely to find a mediator who is not seen to be connected to one side or the other. Alternatively, there may be a faculty member who is trained in mediation and who is seen to be adequately impartial. The key is that both sides must trust the mediator. It is also important to give the mediator the time and resources needed to do an adequate job.

Setting Ground rules: Another aspect of pre-negotiation is the setting of Ground rules which determine how the negotiations will proceed and what is expected of the parties. While a good mediator can propose these ground rules, it is generally recommended that these rules be negotiated and agreed to by the parties, rather than imposed by the mediator alone. When the parties develop the Ground rules themselves, they are more likely to follow them. They are also more likely to pressure their colleagues to follow them if someone violates one of the rules. This is usually more effective in maintaining order than the mediator having to play "enforcer." In addition, the process of negotiating Ground rules gives the parties a taste of negotiation success-- it gets the parties in the habit of working together, cooperating, and agreeing on things that are often much easier to agree upon than the actual issues in dispute. So it sets the stage for successful negotiation later on. (This is why it helps to have the same people participating in both phases of the process.)Typical Ground rules involve such items as parties addressing each other in a respectful manner (no harassing, threatening, or name-calling) and giving each side the opportunity to talk and be listened to without interruption. Usually negotiations are held in private and the discussions are considered confidential, especially with respect to the media. (However, parties are usually encouraged to keep their constituencies appraised of the progress of the discussions as will be discussed below). Another common rule is that representatives for each of the parties must commit to participating in the discussions on a continuing basis. Otherwise, the negotiation’s sense of continuity will be lost, and the same issues will have to be addressed again and again. "Alternate" representatives, who stay up-to-date on the process, can be used to handle unavoidable vacancies and absences.

Other issues to be decided include logistics: when, where, howoften, and how long to meet, whether observers are allowed, and if so, who those people can be.

Timing of Negotiation Planning: These procedural decisions can be worked out before the parties ever sit down together at a table, through the "shuttle diplomacy" of a mediator, or they can be worked out at initial negotiation or mediation sessions. Often such issues must be decided before all the parties will even formally agree to participate. While changes can occur over time as negotiators get to know and trust each other more and more, avoiding surprises is important, as surprises can easily be taken as "double-crosses," and used as an excuse for one or more of the parties to back out of the process or to become more hardline in their approach.

The Negotiation or Mediation Process

Interest-Based Bargaining: Most mediation and negotiation processes follow the principles of interests-based bargaining as outlined in the best-selling book, Getting to Yes (by Fisher, Ury, and Patton). The four principles they suggest are 1) separating the people from the problem (meaning focusing on the issues, not interpersonal animosities), 2) focusing on interests not positions (thus, focusing on the reasons each side takes a stance, not just on what that stance is) 3) searching for options for mutual gain, and 4) looking for objective criteria for judging "fairness." They suggest that by following these four principles, anything can be negotiated. This, we feel, is too optimistic, especially for very deep-rooted moral conflicts such as those that tend to become manifested in campus protests. Nevertheless, following these guidelines cannot hurt negotiations, and it often helps.

One aspect of these principles is very important: that is the second item relating to interests. If students present demands, these are, essentially, what Fisher, Ury, and Patton call "positions." They are rigid statements about what the students want. Demands and positions cannot be negotiated nearly as effectively as can interests. While many negotiators do engage in "positional bargaining," wherein they stick with their initial position as long as possible, and then start compromising, the results are often inferior to those which could have been obtained through a negotiation on interests. Generally, when people negotiate positions, they start with positions which are far apart (even opposite), then each side compromises a little bit, and then a little bit more, until each side gives in about half way and they meet in the middle. This can be done with demands–the students can back down half way, the administration can give in half way, and the dispute can be resolved. But Fisher, Ury, and Patton suggest (and we agree) that it is usually much more effective and successful if both sides explain the reasons underlying their positions–those reasons are their interests. Often, the parties will determine that they share at least some of their interests, so they can develop ways to meet those interests without having to give in on half of their positions or demands. Interest-based bargaining, as opposed to positional, or demand-based negotiations provides a way for both sides to get more–even all–of what they want, rather than having to give in or lose face, as so often happens when positional bargaining strategies are used.

Constituency Involvement: Also critical to success are effective processes for involving broader constituency groups in the negotiation. While negotiators may "represent" their constituents, they generally do not have the authority to bind constituents to an agreement. This means that negotiators must make periodic and frequent reports to their constituents about the discussions. This is especially important when negotiators see that the process is producing a kind of "conversion" experience in which the negotiators' views of the dispute and their ideas for resolving it change substantially. The people who have not been directly involved in the negotiation–the constituents who are not at the table–must be fully informed of the process and substance of the discussion and "brought along" with the process. Otherwise negotiators will find that they no longer have the support of their constituents, and any agreement that they reach will be likely to fail.

Binding Parties to an Agreement: One of the especially difficult issues in social justice conflicts is binding parties to an agreement. Even if the parties at the table agree to the settlement, the negotiator's constituencies must be convinced to ratify and uphold the agreement. The looser the structure and membership of the advocacy group, the more difficult this process is. In very diverse groups, the possibility of splinter groups forming and opposing whatever agreement has been reached is quite real. While this problem can never be prevented entirely, making an effort to get all concerned parties represented at the table and appraised of the negotiations as they go along is generally the best way to deal with this threat. It is also helpful to make the agreement public at the end of the negotiations, so public pressure can be brought to bear if one side violates the agreement.

Constructive Confrontation

In cases which are non-negotiable or for non-negotiable sub-issues, continued confrontation should be expected. In this situation, it makes sense to put negotiation efforts in standby mode (where they can be quickly restarted should the situation change). The parties then need to concentrate on making the confrontation as constructive as possible. All too often, however, the parties conclude that, since negotiation won't work, business-as-usual strategies of all-out, destructive confrontation are the only option. The constructive confrontation strategies which we have been developing provide a much more desirable alternative. Constructive confrontation applies insights of the conflict resolution field to situations where agreement-based resolution is not feasible. These strategies can also be pursued while negotiations are going on-- it often makes sense to utilize both approaches simultaneously.

Page last updated 11/27/2005

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