By Michel Ghazal
To begin with, here is my definition of negotiation: it is a means of inventing a new solution in a situation where there are both common and divergent interests, with the aim of reaching an agreement whose cost is lower than that of the conflict (the MESORE)[1].
So, whether the negotiation is simple or complex, the negotiator’s objective is to be inventive in finding acceptable and workable solutions to the problem at hand.
Every time I’ve been asked to help break a deadlock in a negotiation, either as an advisor to one of the parties or as a mediator for both, I’ve been struck by how few ideas there are on the table for a way out. Quite often, I’ve been faced with no more than one or two ideas, and these have been no more than the positions adopted by the protagonists at the start of the conflict…
What are the reasons for this shortage of ideas that negotiators generally suffer from?
A number of problematic behaviours and attitudes quickly became apparent to me:
Overestimating self-confidence is a bias that locks the negotiator into certainties, in particular that he holds the truth. As a result, not only will they neglect to prepare for the negotiation, but their effectiveness will be measured by their ability to impose their solution, which is the only one they will accept. However, in any negotiation, if there is one certainty, it is that there are always grey areas – particularly concerning the other party – and uncertainties. Being curious[2] to explore the concerns and interests of others is essential in terms of the ability to invent new solutions that the parties had not thought of before starting their negotiation.
Negotiators avoid coming up with new ideas for fear that their counterparts will see them as concessions and/or a “compromise” proposal, preventing any possibility of going back on them without denying themselves. As a result, fearful of compromising their position in the negotiation, negotiators prefer to wait for their counterparts to make the first move. As the latter adopt the same attitude, both can wait a very long time… The consequence: the ideas put forward to resolve the problem are limited and impoverished.
Paradoxically, as soon as the opposing party puts forward the slightest idea or makes any kind of proposal, the other party rushes in, either to put forward an immediate counter-proposal or, quite simply, to dismiss it. Indeed, as every negotiator thinks, if the other party has made this proposal, it must be favourable to him. And, since the underlying assumption is that the interests are contradictory, this proposal is inevitably bad for oneself. The critical mind is always quick to point out the flaws in any new idea.
Disputes and arguments are not based on objective realities. They are often based on the differing perceptions of the parties involved. These thoughts are determined by the perceptions they have formed of the situation, which lead them to a certain vision of reality. Neuroscience is of great use to negotiators in this respect. They alert us to the sources of error in perceptions, evaluations and judgements engendered by mental reflexes and “quick thinking”.
The following anecdote illustrates the obstacle that hasty judgements pose to successful negotiated conflict management.A little girl is holding an apple in both hands when her mum enters the room. With a big smile, her mother says to her gently: “My darling, would you give Mummy one of your two apples? The girl looked at her mother for a few seconds, then suddenly took a bite of the first apple, which she swallowed quickly. Mum’s smile froze on her face. No sooner had the daughter finished her first apple than she took a bite of the second. The mother found it increasingly difficult to hide her disappointment. Then the little girl hands her mum one of the two apples, saying: “Here, Mummy, this one’s much better”...
Our perceptions are necessarily partisan and biased and do not always reflect the truth. Note the difference between the little girl’s intention and the mother’s interpretation of it. From the information available to them, they will retain that which confirms their first impressions and ignore that which would force them to question them. More generally, people only see what they want to see, and they are quicker to criticise what surprises them. Hasty judgements are therefore a major obstacle to the creation of ideas.
“I’m astonished that such an idea could come from you”, or “Come on, let’s be serious, you know our rules and you know that this is out of the question” are the kind of reactions that negotiators want to avoid at all costs. As a result, they are likely to become reluctant to think outside the box, preferring instead to stick to what is known and less risky.
These attitudes reduce the chances of reaching innovative or daring solutions and inexorably lead to results that are far from optimised. So many times inferior agreements are reached; so much untapped wealth is left on the table; so many deadlocks and escalating conflicts are the sad consequence.
To overcome these blockages, we first need to understand what drives these behaviours, which are detrimental to problem solving, by inventing creative solutions.
The underlying assumptions and received ideas about negotiation, about what it is and what it is not, and about how it should be conducted in order to satisfy one’s own interests, provide the beginnings of an answer.
I would like to highlight three in particular:
– Negotiation would be comparable to a competition: the only valid objective would be to win a victory over the other;
– The cake would be limited once and for all: what one wins, the other inevitably loses. As much as this may be true in a souk when it comes to negotiating the price of a carpet, in other negotiations, particularly in companies, there are other subjects to negotiate: the quality of service, delivery times, the granting of credit, the establishment of a lasting relationship, and so on.
According to Max H. Bazerman and Margaret A. Neale (1992; in particular Myth of the Fixed-Pie of Resources), this hypothesis prevents us from perceiving that negotiators can barter by linking two negotiation objects valued differently by each of them. It is in fact possible to link an object that is valued low by one of the negotiators but considered important by the other, with an object that the former values highly but which is minor for the latter;
– The other party’s interests and its own would necessarily be antagonistic and divergent: this would suggest that there are no common or shared interests and would encourage us to ignore them. But reality proves the opposite.
It is accepted that effectiveness in negotiation depends on the ability to manage three types of tension:
The presence in any negotiation of these two forces – value creation and value reclamation – confronts the negotiator with what theorists call the negotiator’s dilemma: to satisfy his interests, is it preferable to adopt a cooperative strategy (geared towards value creation) or a competitive strategy (geared towards value reclamation)? Let’s take a closer look at these two strategies (Lax and Sebenius, 1986).
Adopting a competitive strategy means denying the existence of this dilemma by considering that wealth is limited once and for all. As a result, the negotiator will mainly demand value by adopting a Win/Lose attitude. There is therefore no potential for creating value, which causes the negotiation to get bogged down and, even if an agreement is reached, the result is often unsatisfactory for at least one of the parties, and often both. If the relationship is ongoing, this can only be problematic when it comes to dealing with each other again.
Adopting a cooperative strategy means denying the existence of value claims by adopting a resolutely Win/Win attitude focused above all on value creation. With this spirit of openness, the negotiator hopes that the other party will in turn be open, reasonable and fair. Unfortunately, when faced with a “tough” negotiator, the cooperative negotiator quickly becomes vulnerable and risks being exploited. The competitive negotiator takes advantage of the situation to take everything and give nothing in return…
As we have seen, these two strategies are far from being effective or achieving the desired results. It is therefore important to know how to enlarge the cake by creating value and, at the same time, to be able to demand value in order to guarantee one’s share when the cake is shared. There is only one way of doing this when it is properly understood and applied: the strategy of mutual gains.
Firstly, it is essential to develop methods capable of increasing the negotiator’s creative capacity to generate ideas that will enable complex negotiations to be resolved. Secondly, they need to be assertive and determined to defend their own interests by claiming a share of the value created.
What are the ways of creating value in negotiation? Here’s a reminder of the main routes:
When negotiators come across differences, they generally think that they are the cause of disagreements, friction and blockages. In fact, according to many authors – David Lax and James Sebenius, Max Bazerman, Roger Fisher and William Ury, Jeffrey Rubin, etc. – differences are often an opportunity to create value. – differences are often an opportunity to create value. There is a whole range of differences that can be capitalised on to create mutual gains:
Ifa vegetarian has meat and a carnivore has vegetables, the difference in their preferences makes it possible for them to agree.
In the negotiation of a toll bridge, a public works company won the tender by offering a higher price if it completed the work before the deadline set by the local authority (enabling the latter to collect revenue more quickly) and a lower price if completion was delayed.
I recommended to a friend who had to move into a house he’d bought to renovate by a specific date, knowing that he’d have to move out of his own house, which he’d sold, that he offer the chosen company a bonus if the work was completed before the deadline, rather than penalties for late completion. This is more likely to motivate the contractor to honour his commitments and finish on time…
One is concerned with the present, the other with the future. When buying a house, for example, it is possible to agree to pay a higher price if the seller grants a payment extension…
Some of us like risk, others not so much. How do you share the risk? If a singer believes that he will fill the venue but the event organiser is not sure, paying a lower guaranteed fixed fee and awarding a bonus based on the venue’s fill rate enables both parties to reach an agreement.
A contractor considers that it is sufficient to dig one metre for the foundations, whereas the client has seen his neighbours dig more than three metres. Rather than reaching a compromise of 1.5 metres, the two parties can agree to call in an outside expert who will tell them, given the nature of the ground, how deep the foundations need to be to ensure that the building can be constructed safely…
These may take many forms and concern the process or the content; the reputation or the outcome; symbolic or practical considerations; attitudes to the creation of a precedent; criteria for measuring success; different assessments of the attractiveness of recourse to an arbitration or mediation procedure, etc.
For example, in the face of the serious economic crisis currently affecting Lebanon, many companies have agreed to keep their employees in exchange for a reduction in wages, generally by 50%, and a reduction in working hours.
The more it is possible to highlight what is of value to one party without it costing the other, the greater the chances of reaching an agreement. This overturns one of the most common misconceptions in negotiation: “Everything I give to the other person necessarily costs me”…
These differences contain an optimistic message about the possibility of creating value, because they create opportunities for inventing mutual gains. Another definition of negotiation might therefore be: “The art of exploiting differences”…
Observation shows that, very often, the first ideas that come to the mind of one of the parties to satisfy his own interests are contradictory to the ideas that come to the mind of the other party to satisfy his own. As a result, the negotiators remain stuck in their positions, which they confuse with their interests. To break the deadlock caused by the ensuing war of positions, the principle is to discover whether there are any interests in the other party that are not contradictory to your own. To achieve this, it is sometimes enough simply to ask the questions: ” Why? and ” Why not ? This helps to identify the interests underlying the positions. What the “mutual gains strategy” reveals is that, very often, the interests are simply different, while the positions are almost always divergent and contradictory.
To illustrate this point, here’s an anecdote my daughter told me recently about a conflict with her four-and-a-half-year-old daughter. It was January, and for her swimming lesson, with the cold in the air, her swimming teacher recommended that she wear a life jacket. The little girl refused categorically and resisted her mother’s insistence. She finally resigned herself but told her that next time she would have to wear it. The following week, her daughter refused again and began to cry. When her mother asked why, she was surprised to hear her daughter say: ” You won’t be able to see my shirt any more “.
My daughter suddenly realised that their interests were simply different. Her interest as a mother was to prevent her daughter catching cold and falling ill, and her daughter’s interest was purely aesthetic. This difference in concerns enabled her to come up with a solution that was totally unthinkable at the outset: she suggested that her daughter wear her swimming costume over the waistcoat. Which she did, willingly and without a second thought…
Before they even begin their discussion, two diplomats from two countries at war already share at least one common interest: to show that they have each fulfilled their role as defenders of the interests of their respective countries… Negotiators often share a good number of common interests. The desire to do better than their MEASORE, their best alternative to a negotiated agreement while avoiding the cost of a non-agreement, or the desire to realise all possible benefits from the agreement, are two minimum common interests. In a divorce[3], for example, the future ex-spouses share at least two common interests: not emptying their pockets and enriching their lawyers to their detriment, and preserving their children’s equilibrium by seeking to protect them from the negative effects of the separation.
When preparing for negotiations, it is therefore advisable to look tirelessly for common interests, as these are one of the major levers for reaching mutually beneficial agreements. The spouses may decide to use a lawyer chosen by mutual agreement. Alternatively, each spouse may choose a lawyer, and the two lawyers choose a third.
A number of interests may be shared: preserving the relationship; fighting a common enemy; meeting a higher objective; not “getting screwed”, etc. Discovering them, particularly during the preparation phase, recalling them and relying on them throughout the negotiation, is a formidable incentive to overcome blockages by tirelessly inventing ideas for solutions, known as options.
Among the essential elements of good preparation, it is advisable to list exhaustively all the points or items to be negotiated: delivery time, price, insurance, guarantees, financing terms and so on.
But this can prove problematic if the parties decide to negotiate each point separately and freeze the result with no possibility of going back. Believing they are doing the right thing, this certainly deprives them of the opportunity to exchange one item for another, only to discover that everyone values them differently…
It is therefore advisable to lay down a rule at the start of the negotiation, stipulating that as long as there is no agreement on everything, there is no agreement on anything. This increases the likelihood that the result of the negotiation will provide optimum satisfaction on all the points under discussion, for all the parties.
But beware of bluffing. Let’s take the example of a divorce negotiation with two subjects: custody of the children and alimony. The husband can lie and pretend that he wants parental responsibility, when this is not true. By pretending that it costs him to give in on this point, he can hope to obtain a reduction in the amount of alimony…
They can create value without differences or common interests. By merging, two companies pool their IT services, thereby reducing their operating costs. They will also be able to obtain greater discounts from their suppliers as a result of a larger purchasing volume. More generally, they can reduce costs by avoiding duplication.
Once the cake has been enlarged by the creation of value, it must then be shared. This entails the risk of the parties once again falling into a positional war over the division of the wealth created.
The way in which value is created therefore affects the way in which it is divided up, and the way in which traders share value affects the way in which it is created.
Fortunately, the “mutual gains strategy” guards against this risk, as it urges the negotiator not only to be creative and cooperative in creating value, but also to be assertive and firm in defending his or her interests, while not omitting to demand value. However, this must be done without forgetting to show empathy for the interests and concerns of the other party.
Although the many clients I’ve had the pleasure of working with or training over the last thirty years understand very well and very quickly the advantages to be gained from inventing new options, several of them, whom I’ve seen again after my training courses, have said to me: “OK, we’ve understood that we have to invent options to get out of the box. But here I am, telling my interlocutors let’s get out of the framework and … nothing comes of it”. So what can we do?
I realised that if I was to succeed in developing my clients’ negotiating skills, I had to get them to think differently about their negotiations by complementing this learning with the development of their faculties for innovation and imagination. Three types of action help to achieve this:
Creativity, which helps create value, implies two qualities:
I therefore worked with specialists to organise training courses to provide negotiators with creativity tools and techniques. The aim was to help them ” think differently ” in order to correct “mental slides” and the associated risks, by forcing them to go further than their first ideas, which are often positions. Remember, the chance of coming up with an acceptable idea is greater if we have a choice of ten, fifteen or twenty ideas rather than one, two or three…
In the panoply of creativity techniques and tools provided by innovation specialists, in addition to classic brainstorming, some quickly appeared to me to be more easily transposable and integrable into negotiation situations: the six hats, brainwriting, the Angel’s lawyer or virtual candids. [4]
Using these approaches allows an initial phase of “divergence” – open, noncommittal exploration of the problem posed – to take place before the “convergence” phase, in which a decision is made and a choice made from the options found. These methods can be supplemented by the warm-up exercises used in improvisational comedy. One study showed that the many exercises used in improv comedy strongly encouraged associative thinking. During a brainstorming session, for example, it increased the production of ideas by an average of 37%.
Other exercises can also be used as ‘fuel’ to free the mind and encourage the generation of ideas. For example, increasing the number of sayings we use on a daily basis. So, rather than trying to “split the difference”, we should cut it into twenty pieces; or kill twenty birds with one stone; or look for noon at twenty o’clock; or go twenty ways…
Relaxing and freeing the mind, being encouraged to explore multiple new options, being motivated to bounce ideas off others to improve them or develop them further, all promote the common goal of reaching solutions together that are potentially acceptable to all. There is no doubt that in complex, multi-stakeholder negotiations that take place in the context of ongoing relationships, the added value of using creativity to create value and enlarge the cake will be greater than in “one-shot”, monothematic negotiations (where there is only one point to negotiate: the price).
But there is one essential prerequisite if you are to succeed in involving the person you are talking to and making them a partner in the search for original ideas: you need to put in place the conditions that will give them a real sense of security: that their ideas will not be used against them.
Reducing inhibitions and releasing creative energies to reduce the risk of escalation and increase the chance of reaching a creative agreement involves fundamental changes in attitude, behaviour and practices, as well as changes to the rules of the game. The aim is to provide the means to better manage the tension between creating and claiming value.
The key is to arrive at the negotiating table with a willingness to learn rather than a willingness to convince. Here are a few attitudes and behaviours that are conducive to the generation of new ideas:
It is also important to favour practices, processes, tactics and, more generally, ways of doing things that encourage mutual cooperation and avoid those that reveal a desire to monopolise “the lion’s share” of the gains created. Here is a non-exhaustive list of these practices, processes and techniques:
This is not advice on the substance of the negotiation, but on how to deal with it. What can facilitate the implementation of these mechanisms is to negotiate them upstream, as methods and rules of the game intended to facilitate the negotiation of the substance itself. This is a negotiation on form before the negotiation on substance. It may take a lot of time, but it certainly saves a lot of time…
As we have seen, there are many obstacles to creativity:
And knowing that if there are ten or fifteen ideas on the table it is easier to find the right solution than if there are only one or two, here is a procedure that I used successfully during the banana dispute in Martinique and which provides a concrete solution to these obstacles: the creation of ” a second-level joint commission “[7].
Following the United States’ demand for the abolition of European subsidies for banana producers, the four trade unions in the sector launched a strike that brought the island of Martinique to a standstill for several weeks, over a number of demands, including considerable pay rises, at a time when producers were facing financial difficulties. The blockade was total. I recommended to the growers’ cooperatives, who called on me for help, that they set up this procedure with the unions. After a stage designed to explain the method and reassure people of its implications, I got all the stakeholders on board. I was then able to bring them together in a neutral location: the hotel where I was staying.
After laying down clear ground rules to avoid aggression and personal attacks, I gave everyone a chance to get things off their chest. I then offered the group a series of creative methods, starting with brainwriting, to generate as many ideas as possible. After eliminating the most far-fetched ideas together, we were able to keep around fifteen ideas that corresponded to the four points on the negotiation agenda. We then submitted them to the official negotiators. A week later, an agreement was signed, not without a few tense moments…
In practice, this procedure creates a double separation:
As soon as the official negotiation stumbles on a problem, rather than breaking off, it stops and the second-level committee meets, with the task of seeking a large number of ideas and solutions without worrying about their quality in order to resolve the conflict.
This is led by an external, neutral facilitator, experienced in mediation and creative methods, and accepted by all. With no fear of being trapped by their ideas, a surprising harvest of new options, which the parties had not thought of at the outset, can be harvested. All that remains is to submit these ideas to the official delegation, thereby relaunching the discussions.
The probability of reaching an agreement acceptable to all, without going down the slippery slope of concessions, is thus considerably increased. It’s a win-win situation…
The success of this procedure presupposes prior negotiation and acceptance of a number of ground rules:
This procedure was successfully used in South Africa during the negotiations between Frederick De Klerk and Nelson Mandela to bring the country out of apartheid.
Achieving a result in the form of an optimised agreement (which exploits all the interests and possibilities on the table) requires the implementation of strategies whose objective is the search for mutual gains and not victory over the other.
This involves a radical change in the rules of the game and sometimes means going against your own natural tendencies and ingrained practices. As a result, the chance of obtaining the cooperation and involvement of others to come up with creative solutions to a problem is increased tenfold.
All it takes is for one of the parties to dare to negotiate differently for the inevitable tension between creating and claiming value to be better managed, thereby making it easier to achieve a mutually beneficial and acceptable outcome.
Bazerman Max H. and Margaret A. Neale (1992), Negotiating Rationally, Free Press.
Fisher Roger, William Ury and Bruce Patton (2006), Comment Réussir une Négociation, Paris, Seuil.
Ghazal Michel and Bertrand Reynaud (2008), Nous deux, c’est fini, Paris, Seuil.
Ghazal Michel and Yves Halifa (1997), Circulez, y a rien à négocier, Paris, Seuil.
Lax David A. and James K. Sebenius (1986), The Manager as Negotiator, Free Press.
Rubin Jeffrey, Dean Pruitt and Sung Hee Kim (1994), Social Conflict, McGraw Hill.
Ury William (2006), Comment négocier avec les gens difficiles, Paris, Seuil.
[1] The MESORE, the best alternative to a negotiated agreement, makes it possible, if it is prepared in advance of the negotiation, to define the threshold above which the negotiator will prefer not to reach an agreement.
[2] See my article: http: //www.negociateurs-sans-frontieres.fr/la-curiosite-quel-fantastique-defaut/
[3] See my book co-authored with Bertrand Reynaud, Nous deux, c’est fini (2008).
[4] Here’s how my colleague Mario Varvoglis, an expert creativity consultant at the European Negotiation Centre, defines them: Edouard de Bono’s Six Hats technique encourages in-depth analysis of a subject by adopting six different and complementary postures: critical mind, feelings and emotions, creativity, factual orientation, constructive approach and spirit of synthesis. This technique is ideally suited to the preparation phase.
BrainWriting is a method based on putting ideas in writing rather than orally, as in Brainstorming. Once each participant has written down their idea, they pass it around to the person next to them, who can use it as inspiration and react to the suggestions already made. If there are ten people, a hundred ideas are collected in this way.
The Angel’s Advocate is the antithesis of the Devil’s Advocate. This method encourages you to focus not on the weaknesses and flaws of an idea, but rather on how to turn it into a solid, acceptable option.
The Virtual Candids technique involves imagining the remarks, observations, ideas or questions that characters, at first sight remote from the problem posed, would make: a doctor, a lawyer, a child, a teacher, a fireman, Freud or even Steve Jobs… Each one has its own specificities and would give a different angle of view and perspective.
[5] See my article: https: //cenego.com/la-confiance-en-negociation-comment-la-developper-et-quand-sen-mefier/
[6] Vanessa Marcié (2020), “Humour as a catalyst for creativity”, Harvard Business Review: https: //www.hbrfrance.fr/chroniques-experts/2020/03/29547-lhumour-un-catalyseur-de-creativite/
[7] See my book, written with Yves Halifa: Circulez, y a rien à négocier (1997).