Principled Negotiation – the way forward?
Giulia Sinibaldi analyses the effectiveness of negotiation when handling a dispute.
As a solicitor, a key principle is to always work in the best interests of your client. In the context of a negotiation this means obtaining the best outcome in line with your client’s instructions and objectives.
Negotiations are often seen as win/lose situations. But what if both parties could achieve a win/win outcome without feeling like they have conceded and given away too much?
Taking a strong, often immoveable position and entertaining one fixed idea is known as positional negotiation. This is where each side sticks to their position conceding only when necessary and not considering the underlying objectives of the parties involved. This often involves adopting an aggressive persona or changing your character to intimidate, persuade or agitate your opponent. This is effectively a battle of wills, the winner being the person who can concede less, often not taking into account other more personal factors that frequently come into play when parties negotiate.
Negotiation is often never thought of as collaborative or in the interest of pursuing an effective resolution for both parties. It may sound unusual to put yourself in the shoes of your opponent and evaluate their aims, however, when considered it makes sense for a solicitor to contemplate what each party in a negotiation is trying to achieve. Thinking on both sides enables a solicitor to understand which objectives can be mutually satisfied.
To provide an example imagine a business dispute where both parties to the dispute rely on each other for trade and profit generation. Both parties want to maintain their business relationship and keep trading together despite the argument at hand. Your client wants to achieve a good outcome at the negotiation but not to the extent that it would cost the goodwill between the parties. Thinking from a commercial perspective, aggressive and stubborn negotiation would be an unsuitable stance as it would inevitably sour the parties’ relations. Instead, understanding what the other party wants and trying to achieve an outcome that is favourable for your client whilst maintaining good business relations by understanding what the other wants to achieve would be a far better alternative.
This theory of finding interest based and satisfactory results by deciding which needs are fixed and which are variable is known as principled negotiation. This theory was developed by Harvard professors Roger Fisher and William Ury in the 1970s and published as a book ‘Getting to Yes’ in the early 1980s. Later editions of this book also include Bruce Patton as a co-author.
Fisher and Ury detailed four main points to consider when contemplating negotiation, namely:
1. People – take into account the emotional impact of negotiation and separate the people
from the main issues at hand.
2. Interests – work towards common interests which can be resolved to the best
satisfaction of both parties.
3. Options – envisage different outcomes, consider more than one resolution during the
4. Criteria – be objective when negotiating; make decisions on principles and do not give
in to pressure.
Thinking beyond the dispute and adopting a broader mind-set will undoubtedly enable you as a negotiator to meet your client’s expectations, achieve their objectives whilst taking into account any additional interests. Adopting the principled negotiation approach enables negotiators to deal with all the issues between the parties in an objective and progressive manner.
If you are interested in the theory of principled negotiation then ‘Getting to Yes’ published by Random House Business Books is a highly recommended read. The book explores negotiation and tactics in more detail and has been used as a key instrument in teaching negotiation skills around the world for decades.