How to Give Negotiation Advice

I was asked to comment on a series of presentations being made by students in a class at Harvard Law School.  Their assignment was to generate advice to the head of one of the major sports leagues in America facing a tricky international problem. The student team with the best presentation was going to have a chance to offer their ideas to the Commissioner. I watched as the student teams talked through elaborate power point presentations loaded with detail and elegant visual gimmicks. That's when it struck me that we are not developing or sharing with our students a very clear idea about how to give negotiation advice.

Having been in the same situation (of giving negotiation advice) many times, I tried to step back and summarize what I think I know, especially in light of how my advice has been received and when, in retrospect, it has proven useful. First, negotiation advice needs to be short and sweet.  (Maybe ghe same thing is true with regard to advice on any subject.) When the presentation gets too complicated, the whole message just washes over the recipient. Anything more than a handful of power point slides (if you use them at all!), is too many.  I would suggest starting with a very short statement of the negotiator's problem as you understand it and the gist of your advice in just a few sentences. I would look right in the recipients eye so they are convinced that (1) you understand the problem and the pressures they are facing; (2) you empathize, and you've thought long and hard about what you are going to say; and (3) you have confidence in what you are suggesting.  The student teams I watched, divided up their presentations so that each member of the team had some air time.  Don't do that. It is hard enough establishing personal contact with the person you are advising.

Second, don't try to explain the theory behind your prescriptive advice. Again, this is probably true of any kind of advice, not just negotiation advice. How I reached my conclusions is my business.  If they are asking me for my advice, they don't need to hear everything I've thought about and everything I know, just my conclusions.  Negotiation advisors who are not confident about the advice they are giving are likely to share everything they know with the people they are advising.  In my experience, that just makes recipients uneasy.

Third, stop along the way and make sure that the person you are advising understands each of your key points. When a recipient get's stuck on something I've said -- if they don't understand it, or it doesn't sound right to them -- they stop listening.  So, it's better if I break what I'm going to say into a few short pieces, and then check to be certain they've understood each point before I go on.

Fourth, emphasize the possibility that additional value can almost always be created, and suggest ways of reframing a negotiation in terms of all-gain solution.  Most people entering a negotiation are likely to be thinking in zero-sum terms (i.e. whatever my negotiation counterpart gets, I lose; and, vice versa).  A skilled negotiation advisor, however,  is ready to point out ways that more value can be created.  This can take a lot of pointed questions and several rehearsals.  Nervous negotiators are often unable to hear the kinds of questions that lead to "all gain" solutions.  For example, I often press people seeking negotiation advice to put themselves in the shoes of the person with whom they are about to negotiate:  "What do you think the key interests are on the other side?  What's most important to them? What can you offer them (at low cost to you), in exchange for things you want from them?"  In other words, I try to frame my advice in terms of possible trades or packages that will be mutually advantageous.  And, I ask the person I'm advising to play the role of their negotiation counterpart as we search for value creating possibilities.

Fifth, it's OK to offer contingent advice if there are major uncertainties or assumptions which, if handled differently, would lead to different suggestions.  I think this is especially relevant to negotiation advice. While I'm trying to keep my suggestions as compact and simple as possible, it is, in my experience, appropriate to say: "If X turns out to be true, as I think it will, then my advice to you is this.  However, if Y happens instead, then my advice would change in the following way."  I wouldn't do too much of this, but one or two contingencies will add to, rather than subtract from, your credibility as a negotiation advisor.

Next,  a diagram can be useful. But elaborate power point presentations or complex conceptual schemas are a distraction.  Diagrams summarizing prescriptive advice need to be anchored to real events, dates or steps that make it clear the order in which things need to be done.  Elaborate conceptual diagrams, spelling out theoretical ideas or summarizing various schools of thought, should be avoided.  Someone seeking negotiation advice wants to know the most important things they need to do. That's it.  Negotiation advisor need to be ready with short explanations of "why" if they are asked to justify a particular move; but, these should be held in reserve, and offered only when requested. And, "why" answers should always explain the dynamics involved, not the inspiration for what the advisor is suggesting. Why answers are not like footnotes!  They should expose an additional layer of understanding, not cite a source.  So, for example, a suggestion like, "Don't share all the information you have on that subject until you know whether you can trust the other side," should be followed with, if asked why,  "Because they could use that information to "anchor" in the Zone of Possible Agreement at a point that is best for them and worst for you."

I worry about the increasing use of power point presentations in advice-giving situations.  I think it is a mistake.  It puts a barrier between the advice-giver and the recipient.  Rapport is everything, and power point presentations, especially those with glitzy special effects, get in the way of personal connections.  I don't mind a one page handout (that the recipient can annotate as they listen), but it should not be filled with dense text. Just a few bullet points will do.

Let's turn the tables for a minute.  If you are the one seeking negotiation advice, how ought you to frame your request for assistance?  I might ask:  "I'm heading into a salary negotiation with a prospective employer, and its making me nervous. I don't want to lose the job, but I also want get a fair salary. What's your advice?"  In this situation, I don't want general negotiation advice. I want specific suggestions tailored to my salary negotiation. I want my negotiation advisor to acknowledge my priorities and my state of mind:  I don't want a prospective employer to give someone else the job. But, I also don't want to settle for less money than I deserve. A skilled negotiation advisor knows how to ask for advice, not just give it.

The things unique to giving or getting negotiation advice (as opposed to any other kind of advice) are: (1) general rules, and the theory behind them, are a lot less helpful than suggestions tailored to the specifics of the situation; (2) sensitivity to the way an advice recipient is feeling may be as important as any substantive insight an advisor can offer; and (3) it is important to emphasize the possibility that additional value can be created and almost every negotiation can be reframed in non-zero sum terms.

How negotiation advice is offered is as important as the substance of the advice.  If negotiation advice is offered in the wrong way, it is not going to be very valuable.

Informal Problem-solving: Get Help!

Public officials and corporate leaders have to deal with all kinds of conflict (both internal and external). Because they see themselves as leaders, though, they don't want to admit they might need help handling  these situations. For some reason, its OK to hire a lawyer if you are facing a lawsuit, but it's not OK to ask for informal problem-solving help before things go from bad to worse.  Why is that?

Consider the following examples.  Mr. Bigshot is the CEO of a large company.  He is under substantial pressure from his Board of Directors to increase profitability in the near term and increase market share in the long term.  He faces opposition at every turn. Most of his efforts to reform long-standing operating procedures are being opposed by department and division heads.  He wants to look tough to impress his Board, but the only way he can come up with to push his agenda is to replace people who don't do what he wants.  Now he faces a backlash. Efforts to force long-time partners in the company's "supply chain" to accept new ground rules, have also backfired.  If the problems he faces were framed purely in organizational development terms, he might think about hiring a management consultant, but the notion that he might need to improve his (and his organization's) informal problem-solving capabilities is the farthest thing from his mind.

Here's a second example. The head of a well-know multinational agency has been trying for several years to get her organization to embrace sustainable development as part of their mission. At one level, everyone agrees.  But, whenever she suggests that this means altering the agency's priorities, shifting the allocation of financial resources and involving long-time critics in redefining the agency's mission, a torrent of tacit and explicit opposition emerges. Endless rounds of one-on-one and group conversation have had no effect.  Ms. Agency Leader might go along with hiring a strategic planning consultant, but she is blissfully unaware that both she and her organization probably need help developing their informal problem-solving capabilities.

One explanation for why these two "leaders" are unlikely to take advantage of professional mediation, facilitation or other informal problem-solving assistance is that they don't want to appear weak (to the people to whom they are accountable). They feel obliged to demonstrate that they can handle whatever adversity comes their way.  But, that can't be right.  Public and private sector leaders are often in a big hurry to hire consultants and expert advisors.  Admitting that they don't know what they need to know, can make a leader look smart; so, why the resistance to hiring informal problem-solving help?

A second explanation is that they aren't aware that such expertise is available.  It may be that they don't realize that informal problem-solving opportunities are embedded in every conflict situations. They may  be unaware there are readily available advisors and intermediaries who can help them avoid unnecessary conflict, engage in collaborative problem-solving and build consensus.

A third explanation is that the providers of informal problem-solving assistance may not be good at
marketing their services.  Indeed, this is probably true. A great many skilled mediators don't know how to describe what they do in ways that connect with what leaders of the sort mentioned above think they need.  Too many dispute resolution professionals don't work on building long-term relationships with potential clients. They can't expect someone to find them in a moment of crisis. They don't invest enough time putting contracts in place so that they can get to work immediately when informal problem-solving help would be useful.

Finally, informal problem-solving experts may not be pricing their services correctly.  Some are charging too little, I think,  and some are charging too much. Leaders in both the public and private sector attach importance to professional services for which they pay enough to notice. On the other hand, exorbitant prices mean that informal problem-solving services will be used far too infrequently. Also, performance-based methods of payments ought to be possible (which is something that most mediators have resisted for fear that an a priori commitment to getting agreement is in appropriate in situations where no agreement might be an appropriate outcome).  And, service bundles also ought to be up for discussion.  For example, training and organizational capacity-building should be part of annual retainers that include a certain number of hours of  consulting services in moments of need.

Informal problem-solving is a potential growth industry. However, there are three important considerations that providers of these services ought to keep in mind.  First, trust is absolutely crucial. If potential clients are worried that informal problem-solving advisors don't appreciate the pressures they are under, can't guarantee confidentiality or have possible conflicts of interest, they won't seek their help. Second, specialized knowledge is crucial. Clients need to be convinced the informal problem-solving advisors are entirely familiar with what's going on in their"sector." They are not interested in general "process" advice, they want help generating workable solutions.  While service providers should not advocate a specific solution in each situation, they should be able to generate an inventory of numerous ideas that have worked in similar situations. Also, leaders are looking for advisors who have the ability to improvise. They don't want informal problem-solvising assistance from advisors who are "selling" an inflexible method. They need help from advisors who can adapt.

Informal problem-solving can add value in almost any situation. We need to make it easy for leaders in both public and private organizations to seek informal problem-solving assistance on a regular basis.

Fifteen Things We Know about Environmental Dispute Resolution

I was recently asked by my Harvard Law School class to summarize what we know (from actual experience) about environmental dispute resolution.  I offered the following list.  I'm eager to hear reactions from other scholars and practitioners.  What have I left out?  What have I mis-stated?

1    Environmental dispute resolution (EDR) can be used “upstream” during policy-making and planning as well as “downstream,” once disputes have crystallized over administrative decisions (e.g. permitting, licensing, funding, etc.), or even after disputes have entered adjudication.

2.     EDR only works if the parties are motivated to come to the negotiating table.  It is fine if they have very different motivations (e.g. no good BATNA, an opportunity to create value, a desire to improve or repair relationships, pressure from coalition partners, etc.).

3.     EDR needs a process manager; ideally, a professional mediator or facilitator (but not always).  This person must be acceptable to all the parties being invited to come to the table.

4.     The parties in EDR must have a chance to participate in or at least approve the agenda, ground rules, selection of parties, timetable and other elements of process design before EDR begins.

5.     It is perfectly reasonable, even necessary, for a facilitator or mediator to get involved in a variety of away-from-the-table activities on behalf of the group.  These can include making sure that all parties are prepared properly. The mediator might also work with the parties to help them remain in touch with their actual or putative constituents throughout the EDR process.

6.     EDR works best when there are opportunities for Joint Fact Finding and they are managed by a facilitator or mediator.

     JFF should be highly interactive, involving all the stakeholder representatives in specifying the questions that need to be answered, selecting the experts of various kinds who will be called on to help, and making decisions about which analytical methods should be used.

7.     EDR should always emphasize value-creating opportunities (and not just zero-sum choices).

8.     EDR can never substitute for statutorily-mandated decision-making by public officials or agency staff. It can, however, supplement whatever formal decision-making is required by law.

9.     EDR will, of necessity,  take different forms in different constitutional contexts around the world.

10  EDR can rarely, if ever be precedent setting.  It needs to be fitted to the unique contextual details of each dispute/conflict/decision-making process. The outcomes of EDR efforts are rarely recorded in the way court decisions are.  They are not likely, therefore, to be accompanied by a legal rationale that justifies whatever agreement is reached.

11  EDR can include opportunities for confidential give-and-take among the participants even though open meeting laws, sunshine laws and other transparency requirements must be met. Transparency is the mediator’s responsibility along with an obligation to maintain promises of confidentiality.  These can be balanced by allowing the mediator to carry messages between the parties and through work that is done in caucuses.

12 There are substantial advantages to creating EDR “systems” rather than treating each EDR opportunity anew.  This often requires that dispute handling systems be enabled by statute or regulation.

13 The costs of EDR need not be shared equally by the parties.  Each party can contribute what it can without compromising the non-partisan or neutral stand of the mediator.  Funds to support an EDR effort (regardless of who provides them) should only be allocated with the support of all the participants (perhaps through the involvement of an elected executive committee of stakeholders).

14  It is possible to evaluate and improve EDR efforts. It is unlikely, however, that consistent quantitative measures of benefits and costs will be central to such assessments.  Rather, in-depth case-by-case analyses – before, during and after each effort – undertaken by independent evaluators are required.  These tend to focus on the satisfaction of the parties relative to their pre-defined BATNAs along with their sense of how the process "worked" given the alternative ways of handling the situation that were available. 

15 Parties involved in EDR should be consult legal counsel. Court-connected EDR will undoubtedly involve parties and their lawyers throughout.   The presence of lawyers in EDR, however, should not be allowed to create barriers to informal (problem-solving) dialogue among the parties themselves.  Professional neutrals need not be attorneys.