cw453514_Insideout

cw453514_Insideout - Copyright Plenum Publishing Corp....

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Unformatted text preview: Copyright Plenum Publishing Corp. Reprinted with permission. In T beory Negotiating Inside Out: What Are the Best waits to Relate Internal Negotiations with External Ones? Roger Fisher in every negotiation invoking an organization. internal negotiations have a major impact on external ones. When a union. a corporation. 3 government. or even a family is about to engage in negotiations. discussions and decisions among the “insiders” are likely to make it difficult for that body —— as an entity — to conduct ideal problem-solving negotiations with others. No matter how creative and flexible the internal process may be. it is likely to result in instructions that unduly tie the hands of a negotiator acting on behalf of an institution. An institution is not a single rational actor. nor does it behave like one. Within a government. for example. individuals pursue their own careers and seek to advance the interests of their own particular office or agency as well as seek to advance the cumulative interests of the govemment as a Whole. Another compli- cating factor concerns the role negotiators believe they play in the process. Many negotiators view themselves as someone who “represents” the institution and defends its position: they do not perceive themselves as persons hired to work out an optimal solution. But how should a government. a corporation. or other institution relate its internal negotiations to those it has with outsiders? Suppose high officials of two corporations are contemplating the possibility of negotiating a complex agreement. What is the best advice that experts could give them on how to structure those negotiations to maximize the chance that they would not only reach an agreement. but also would reach an optimal one —— an agreement that could not be better for one corporation without being worse for the other? Having formulated the best advice that we could give the two together. would our advice to one alone be significantly different? Consider. for instance. the case of a diplomat who will be negotiating under instructions from his government. Both he and the government are likely to see the problem in terms of discretion: either the negotiator will believe that he has ______________________,.____________________-———-——-———-——-—- Roger Fisher is Williston Professor of Law at Harvard Law School and Director of the Harvard Negotiation Project. 523 Pound Hall. Harvard Law School. Cambridge. Mass. 02138. He and Scott Brown are the authors of the recently published book. Getting Together: Building a Relationship that Gets to YES (Boston: Houghton Mifflin. 1988). owe-filo,xii/oumma sum 0 1: 19w Plenum Publishing Corporation .V’qqnn‘un‘un journal january I989 33 too little freedom of action or the government will believe that he has too much. lnstructions are likely to be written before government officials have done much hard thinking about the interests of the other government or much creative thinking about possible ways of reconciling the differing interests of the two govemments. When discussions take place within a government in advance of an interna- tional negotiation. participants are likely to assume that their task is to reach internal agreement on something. Traditionally, that "something" is a position —— a statement of what the negotiator will demand or the minimum that he or she has authority to accept. Frequently. such a position reflects an odd kind of compro- mise —— one that adds up the desires of the. different parts of a government. In advance of LES-Soviet arms control negotiations. for example. the Air Force is likely to agree that the Naxy can keep its new submarines so long as the Air Force can keep its new missiles. The Army and the Navy are each likely to take a similar stance in the internal negotiations. Each will agree to a position only if the interests of its department or agency are fully met. The result is likely to be a minimum position or “floor” that is floating far above the real world. ‘ An alternative symptom. equally unsatisfying to governments. is to leave a negotiator with enormous discretion. A negotiator typically sees her job as reaching an international agreement consistent with her instructions. Of course. the more favorable to her government an agreement may be. the better the government will like it. But reaching any agreement — even a poor one — within instructions is likely to be considered a success. whereas failure to reach an agreement would be considered a failure. Further. a negotiator armed only with positions and arguments is unlikely to appreciate the interests of different ele- ments of the bureaucracy. In these circumstances. there is a high risk that the goal of reaching agreement will cause a diplomat to settle for an outcome that is substantially short of the best that might have been attained. Giving a negotiator wide discretion thus runs the risk of making it too eas' to reach agreement —- so easy, in fact. that an agreement does not serve a government's interests as well as it might. 7 Faced with this choice. a government tends to limit discretion. Our hypothet- ical negotiator will find her hands safely tied. If she later wants to make a concession. she can ask authority to do so. and the government can later decide if that concession is justified. The result is that international negotiations often involve three layers of positional bargaining: - one among the different interests groups within each government: - one between each negotiator and his or her own government; and - one between the two negotiators acting on behalf of their respective governments. Such a process is hardly conducive to wise joint problem solving. Analytically. what is wrong with the process? How might it be improved? Analysis: Four Possible Causes of Difficulty To reduce the destructive impact that internal negotiations have on external ones. we will need some hypotheses about what is going wrong. Let me advance four. It appears that the possibility of reaching a good outcome in external negotiations is handicapped to the extent that: 34 Roger Fisher .Vqrmtiating Inside Out (1) Throughout the process the focus is on the single element of commitment; (2) The perceived function of the external negotiator remains fixed over time; i ( 5) Internal and external negotiations are compartmentalized — they are viewed as separate and distinct functions: and (-4) Negotiators see their role as simply being partisans. Each of these hypotheses deserves analysis. Each also suggests a proposition about what might be done to improve the process. Focus Negotiations on More Elements than Commitment The first hypothesis is that there is an undue focus on the single element of commitment. At the Harvard Negotiation Project. we organize much of our thinking on negotiation around seven elements: 1. The INTERESTS of the parties —— their needs. wants. hopes. fears and concerns of all kinds such as for security. profit. recognition. or status. The LEGITIMACY of an agreed outcome as measured by precedent. law. practice. or other external criteria of fairness that are persuasive to one or both parties. 3. The RELATIONSHIP that exists between the parties and between their negoti- ators. The better the working relationship. the easier it will be to produce an outcome that well serves the interest of all. The BATNAs. The Best Alternative To a Negotiated Agreement that each party has. (What is the best each can do by walking away?) The OPTIONS on which they might agree. some of which. it is hoped. will be better for each party than its BATNA 6. The COMMITMENTS of the parties — statements of what they will or won’t do. made during a negotiation or embodied in an agreement. 7. The COMMUNICATION between the parties. The more effective that commu- nication, the more efficient the negotiating process is likely to be. In general. in most interactions between internal and external negotiators. too much attention is paid to the single element of the commitments to be made and the authority to make them. and too little attention is paid to what the negotiators could be doing with respect to each of the other six elements. A suggested approach to deal with this problem would be for those within a government — or any other organization -— to develop instructions that say something about all seven elements. Good outcomes tend to be more likely when negotiators fully understand a problem before committing themselves or their organizations to a particular solution. This means that better results will usually be achieved if the making of commitments is postponed until after the negotiators: - have established a good personal working relationship; iv -h{-\ VI - have developed easy and effective communication: - have come to understand the interests of both parties; ' have explored precedents and other possible criteria of fairness that might be persuasive to one government or the other; Negotiation journal junuwji' 1989 55 - have fully understood their own alternatives to a negotiated agreement and have estimated those of the other side: and i have considered a range of possible options that might form a basis for agreement. To the extent that this premise is correct. instructions from an organization to a negotiator should reflect the fact that much work should be done before either of them decides on the commitments that ought to be made. During the early stages of a significant negotiation. communication between a government and its negotiator should be concerned with interests. options. and criteria of fairness. Beyond standard instructions regarding establishing effective communication and a good working relationship. a government would be well adn’sed to instruct its negotiator about the interests at stake in the negotiation. the government‘s current thinking about the relative priority of those interests. and possible tradeoffs among them. Internal negotiations might also produce a number of options that the negotiator could explore with the negotiator from the other side. Further. early internal negotiations might be directed toward finding and evaluating precedents and other external standards of fairness that would be both highly satisfactory to “our” govemment and persuasive to the other side. This means that, instead of establishing “demands” or “positions.” early instructions should limit the authority to commit. There is an ironic contrast between power and authority. The more power that a diplomat has to make commitments. the more tightly a government is likely to confine the exercise of that power —- and the less practical ability that diplomat is likely to have to engage in constructive work. An ambassador is typically “plenipotentiary.” Vis-a-vis another government, an ambassador has full power. Under international law. any commitment that an ambassador makes is binding on his or her government. Even an oral statement by someone with full powers can have serious consequences. In 1953. for instance. the World Court held that when the Norwegian Minister of Foreign Affairs had said that his government “would not make any difficulties“ in the settlement of the Greenland question. it placed Norway “under an obligation to refrain from contesting sovereignty over Greenland as a whole.” Because of this extraordinary power. governments typically give an ambassa- dor instructions that set firm limits on what the ambassador is allowed to do. For fear that something a diplomat might say would constitute a commitment. the diplomat is instructed not to discuss any issue on which the government does not wish to be committed. Such instructions preclude a diplomatic negotiator from engaging in the kind of exploration of interests. options. and criteria of fairness that are useful. and will sometimes be essential. to reaching a sensible agreement. This suggests that. in addition to requesting an external negotiator to explore those elements. it might be well — during the early stages of a negotia- tion — to make clear to one‘s own representative. to the representative of the other side. and perhaps to the press and public, that the representative has no authority whatsoever to make a substantive commitment. He or she has full authority to discuss anything, can make personal commitments. and can commit the government to procedural issues like agreeing on an agenda or a date forthe next meeting, but may not make any substantive concession or commitment until different instructions have been received and explained to the other side. The Functions of a Negotiator Should Change as a Negotiation Proceeds Traditionally each round of talks in a negotiation is seen as having essentially the 56 Roger Fisher Negotiating Inside Out same task -— to deal with positions. A government beginning a major negotiation that will continue over a period of months or years is aware that the instructions it gives a diplomat will be changed over time. At the outset. they may authorize an extreme opening position. designed to provide plenty of “negotiating room.“ Later. that position may be changed. Nonetheless. it seems to be true that the successive instructions tend to cover the same ground. authorizing a negotiator to advance. defend. or revise proposed commitments in an ongoing game of positional bargaining. Yet the role of a negotiator should not be treated like that of a dog on a leash. with the length of the leash being gradually extended. Rather. a negotiator should be treated more like a handyman who is asked to undertake different tasks at different times. As a negotiation progresses. the work to be done changes. and so should the instructions. Both internal and external negotiations will be more effective if there is an ongoing interaction between them with respect to understanding each other's interests. generating a wide range of options. evaluating them in the light of persuasive criteria. and the making of commitments. The character of the instruc- tions should be expected to change during the course of a negotiation. focusing at first on interests andoptions and later exchanging views on possible commitments. This does not mean that each side should disclose its innermost secrets to the other. A corporation. for example. may rightfqu fear the consequences of disclosing business secrets. It may also fear that if it discloses how keenly it wants some particular thing it may be forced to pay a lot for it. Further. it may not wish to disclose how desperately it wants to reach agreement in view of the absence of any attractive alternative. It is difficult to solve a problem unless the negotiators understand what that problem is. It is also difficult to reconcile interests if they remain unknown. However. it is possible to disclose the nature of one's interests without disclosing the intensity of one's feeling about them. Internal and External Negotiations Should Become an Interactive Process People tend to see internal negotiations as a process that is wholly distinct and separate from the external negotiations that may be taking place on the same subject. In a typical big negotiation. a large number of people with different perspectives. differing interests. and different talents will be involved. Some of these people will be working within one organization. some Within another. and some will be the negotiators themselves or their staffs. Outside experts and people from other organizations or governments might also have a contribution to make. One who will be conducting external negotiations will often participate in the internal discussions as well. In fact. negotiators often play a significant role in the drafting of their own instructions. But the internal negotiations on each side are likely to be compartmentalized and kept quite apart from the external negotiations. A highly structured division between internal and external negotiations tends to restrict the contributions of knowledgeable people to what each can do within a carefully prescribed role. If an all-knowing God were considering an Negotiation journal junuan'lvéf‘) 37 international problem in which. say. 22 people were involved. each of whom knew different things and represented a particular point of view. and if His objective were to produce an optimal outcome — one that could not be better for one country without being worse for the other — it is unlikely that He would design the current model. He would not put ten people in one room and ten people in another. each group to issue positional instructions to its diplomat. the two of whom would then meet and bargain. Even without divine guidance. we should be able to design a process that will do better. Such a rigid and adversarial structure is unlikely to be the best way of engaging multiple parties with diverse interests and skills in successful joint problem solving. We will want to use a process that permits people to build on each others knowledge and skills. The talents of all of those involved. whether a member of an “intemal” team or a "negotiator" —— whether within one government or another — should be orchestrated to produce the best possible outcome. This means that the struc- ture of the negotiations should be flexible and open. with substantial use of prenegotiating sessions and nongovernmental experts. Contacts among all of them should probably be planned and encouraged rather than discouraged. Subcommittees. joint fact-finding teams. brainstorming sessions. and small work- ing groups of specialists from both sides (such as military officers. lawyers. or technical experts) should be put to good use. Every Negotiator Has a Dual Role: Both Partisan Advocate and Co-Mediator A negotiator may understandably have a bias in favor of his own side. In fact. a diplomat may correctly perceive his mandate to behave as a zealous advocate of his nation‘s interests. But arguing in favor of one set of interests is less than half his job. Two diplomats negotiating on behalf of their respective countries also have the joint task of efficiently producing a workable agreement that reconciles as well as can be the interests of the two governments in a manner that is acceptable to both. Although each negotiators task can thus be seen as that of a co-mediator. the normal relationship between internal and external negoriations does not make it possible for two negotiators to use the tools and techniques that a skilled mediator might employ. Instructions to negotiators should maximize the chance that they can function effectively together and jointly develop a solution that will be acceptable to their two governments. One particular tool that they should be able to use is the “One-Text Procedure." based on the concept of a single negotiating text. When using such a text. two negotiators. without seeking or obtaining commitments from anyone. jointly prepare a rough draft of a possible agreement and then. in the light of cements from knowledgeable people in both govern- ments. revise and refine successive versions of that draft until they can make it no better. At that time, they jointly recommend the draft as a proposal to their two governments. A Way to Begin A useful way to think clearly about how best to relate internal negotiations to external ones is to try to draft some standard clauses for instructions that might be given to all international negotiators. Despite the magnitude of the task —— in fact. because of it — it may be worthwhile to get started. Here is a first attempt: 38 ‘ «(er Fisher ,quotzzzting Inside Out Some Possible Standard Instructions An Illustrative Draft 1. Unclassified. Although you will also receive some confidential instruc- tions. this part of your instructions is open. You are free to show these instruc- tions to the other side. and are encouraged to do so. Thereafter they may be made public. 2. Authority. You have full authority to discuss any issue relevant to the subject matter of these negotiations about which either you or the negotiator with whom you are dealing wishes to talk. You also have authority to make procedural commitments with respect to agenda. the time and place of meetings. etc. Further. you may make personal commitments of substantive recommenda- tions that you will make to your govemment. but are encouraged to be cautious in doing so. You should emphasize that such statements are your recommendation to the government. not necessarily the action the government will take. You will be given explicit authority to make substantive commitments at an appropriate time. If at any time you believe that such authority would be helpful to you. please request it. In the meantime. knowing that what you say will not commit the government gives you great freedom to pursue the tasks necessary to generate an agreement that will well serve the interests of this government as well as serving the legitimate interests of others involved. 3. National interests. You are negotiating in order to advance the national interests of your government broadly conceived. These interests, in their normal order of priority. are as follows: (a) Building and maintaining a good working relationship with all other governments. Our security is enhanced to the extent that problems and incidents that involve other governments and peoples can be solved accept- ably at a professional level without the risk of escalating into political or military crises. The contrast between war and peace lies in how govern- ments deal with their differences. The more serious our differences. the more important it is that we deal with them in a practical. businesslike way. (b) An orderly international regime based on respect for international law and for our rigth under international law. In general. the way we recon- cile our many substantive interests with our interest in peace is to pursue our substantive interests within a framework of international law and order. (c) The prestige and reputation of our government We want to be widely regarded as a good government with high ideals and values. one that is honest and reliable. Honesty does not require full disclosure. but what you state as fact should be so. Consistent with that reputation. we would also like to be respected as a strong government. one that will listen to reason and be open to persuasion. but also as one that will not back down to threats or pay blackmail. (d) Particular interests. Your confidential instructions for each negotiation will more particularly spell out the relative priority of particular concerns of the government and the tradeoffs among them. Negotiation journal junuari' I989 39 4. Personal working relationships. You should seek to establish a problem-solving climate in which you and the negotiator from the other govern- ment see each other not as adversaries come to do battle. but rather as profes- sional colleagues working side-by-side to deal with a practical situation in which your two governments have differences. 5. Effective communication. The better the communication between two negotiators, the greater will be their joint ability to deal well with interna- tional differences. You may not disclose classified information to the other negotiator as a means of building personal confidence in yourself. On the other hand. within your discretion you may respect confidences and need not report to the government everything that you have been told. 6. Functions. Before committing yourself or your government to any par- ticular solution to the problem about which you are negotiating, you should do your best to satisfy yourself that you fully understand that problem. This means that you should: ‘ (a) understand in some detail the interests and concerns of the other govern- ment. as they perceive them to be, and demonstrate to the othernegotiator that you do understand them; (b) explain our basic interests honestly, and make sure that the other negotiator understands them (Do not disclose secret information nor should you disclose the value we place on some particular interest if that will make us vulnerable); (c) tentatively establish a proposed scope for a substantive agreement that lists the subjects and issues to be covered; (d) generate a range of options that might conceivably be acceptable to both governments and might meet their interests as well as they can be reconciled; (e) identify different standards of fairness. equality, or reciprocity that might provide a sound basis for satisfying the leaders and constituents of each country that it is being fairly treated in an agreement: and (f) revise and improve those options that either negotiator believes hold promise of meeting the legitimate concerns of both governments. 7. Structure of meetings. You should feel free to design your own negoti- ating sessions in a variety of ways: sometimes formal. sometimes informal: some- times in a private meeting and sometimes with others invited to join you; sometimes in “brainstorming” sessions designed to generate fresh ideas. and sometimes in sessions designed to exaluate and improve ideas that have been generated. You should feel free to invite people from either government and nongovernmental experts to join you as you and your fellow negotiator may decide. 8. Subcommittees, consultants, and facilitators. You and your fellow negotiator may find it useful to ask specialists on each side to form a subcommit- tee for the purpose of gathering information. developing new options. or studying and refining some proposal. If a part of the negotiation involves secret informa- tion that one side or both is reluctant to disclose. you may find it helpful to obtain the assistance of a trusted neutral who could speak with each side in confidence 40 Roger Fisher Negotiating Inside Out and recommend ways to proceed. Such a neutral third party might also play a useful role in facilitating meetings where progress is otherwise difficult. 9. Propose work for the government. The work that you are doing with the other negotiator and the internal work being done by your government constitute a single. ongoing, and interactive process. Whenever you would like help in clarifying interests, generating options. gathering data. suggesting appro- priate criteria, or performing any other function that might lead to a good agreement, please inform the government. 10. Request revised instructions. As the negotiations proceed. we will all learn more about the problem and about possible solutions. The government expects to revise your instructions from time to time as we move from the exploratory and creative phases of the negotiation toward the commitment stage. One of your responsibilities is to do your best to see to it that the government has the full benefit of your experience. wisdom. and judgment not only in implement- ing instructions but in improving them. As time and circumstances permit. please propose additions or revisions in your instructions. Negotiation journal januaryl989 41 ...
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