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The Theory of the Negotiation

Whether in a negotiation or a mediation, one should consider the psychology of persuading the other parties involved, rather than just plowing ahead with a rights-based focus. Coming up with a theory of the negotiation can hone one’s preparation and engagement in the negotiations in question.

To truly persuade someone to say ‘yes’, we need to tell a story that works consciously or subconsciously to move the other party to agreement. Most people compare a proposed deal to what they want, what they need, what they feel is fair, what they feel entitled to, or what they can do without us. So to get others to agree with us, we need to approach the negotiation in a way that persuades them on one or more of those fronts.

As negotiators, we can better organize our approach if we develop a theory of the negotiation that will convince the other party of one or more of the following points. You should agree with me because:

  1. It is in your interest (helps you) as well for the following reasons… (e.g., you will achieve goal X; you will save face; you will avoid loss Y; you will protect yourself from risk Z etc.)
  2. It is the fair answer:
    1. for both of us;
    2. for you;
    3. for me;
    4. for other people (about whom the other side cares).
  3. It is the right answer (I’m entitled to it) for the following legitimate reasons…
  4. It is better than the alternatives if we cannot reach a deal (i.e., the consequences of “no” are worse):
    1. for both of us;
    2. for you;
    3. for me;
    4. for others (about whom the other side cares).
  5. It will preserve or build a relationship that you want/need.
  6. It makes sense for you to agree for some other reason that is relevant to you in this specific negotiation.
  7. A combination of the above

Creating a coherent theory of the negotiation can help identify where the challenges may lie in persuading the other side. For example, if we recognize that the other side has a great B.A.T.N.A. (an alternative course of action they can take by walking away from a deal), it may do little good to prove to them that our proposal is ‘fair’. If their B.A.T.N.A. gets them a result that is better than “fair”, fairness alone will be unpersuasive. We may need to show that a deal with us will meet their overall needs in a demonstrably better way than their B.A.T.N.A. The more levels on which we can persuade them, the more likely we will do well in the negotiation.

Having a theory of the negotiation also helps organize the search for legitimacy (external facts acting as proof and support of our views). We can identify what points we will need to prove, which hones the search for the relevant supporting facts. We can then think about how best to use those facts to persuade rather than simply to prove the other party is wrong (which would generate defensive pushback).

If we need to show the other party that a resolution is in their interest, our strategy will need to include good exploration of their goals and concerns in relation to the negotiation issues. With those in hand, we can generate a menu of possible solutions that meet their goals and ours, deal with their concerns and ours, and provide good value for all parties.

If on the other hand, they are truly focused on rights (e.g., contract requirements), we will need to focus on legitimacy, providing the factual evidence as to why our approach is “right” (while still understanding their interests and exploring options). If what matters to the other party is fairness, objective criteria can be used to demonstrate that the approach and resolution are fair.

Remember that we negotiate with human beings that need to say “yes”.  Unlike in court, in a negotiation or mediation we can’t force a decision upon them. That human being needs to agree. Develop a theory of what will persuade them to say yes, and during the negotiation act on that theory, watching for clues that your theory is correct. If signs suggest otherwise, rethink your theory based on what you are hearing, and amend your approach accordingly. Identify what will persuade the other party and focus your efforts there.

Paul Godin, ADR Chambers, paul@adr.ca

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