Advancing Negotiations that Appear to be Stalled

Introduction
The British diplomat, Harold Nicolson (1886-1968) begins his diary of the 1919 Paris Conference which ended World War I with the following words: “Of all branches of human endeavor, diplomacy is the most protean”. This protean quality is true of negotiation also, which lies at the core of effective diplomacy.

Although negotiation can be simply defined as the process of seeking joint solutions to conflicting needs, the path to get there is often circuitous, bumpy and even treacherous with many twists and turns along the way. An inexperienced negotiator will often lose heart at these challenging moments and give up. The experienced and skilled negotiator will recognize these bumps in the road as part of the protean nature of negotiation and will persevere until a successful outcome has been reached. (For a paradigm example of this sort of tenacity, read “To End a War” by Richard Holbrooke – an account of the 21 day negotiations that eventually lead to the Dayton Agreement and the end of the Balkans war).

In this column I share a story where we successfully broke through what appeared to be a stalled negotiation and how we did it. I hope this inspires other negotiators not to be discouraged by apparent obstacles, but rather to persevere with patience and persistence.

The Stalled Negotiation
I was contacted by a potential buyer who asked me to assist him in negotiating the purchase of a ranch. It was a beautiful piece of land with an enchanting creek running through it. This creek was, in the words of my client, described as “a child’s water wonderland!” It was owned by an older woman who had put it on the market for sale and the potential buyer wanted it badly.

He had put in several offers, progressively increasing the purchase price with each. The seller was resisting any offer the buyer was proposing despite displaying a clear intent to sell. The buyer was left confused and concluded that the seller was greedy, unreasonable and unrealistic. He assumed her motivations to be entirely money driven. The negotiations were at an impasse and appeared to be catastrophically stalled. The buyer faced with this, was at his wits end and about to walk away from this deal, feeling very disappointed not to be able to own the land of his dreams.

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Cartesian Logic and the Art of Negotiation

Introduction
Defining negotiation as “making the deal” is a common misconception. The deal is really only the successful conclusion of an effective negotiation process. It is however, the process used to achieve the desired negotiated outcome, which accurately defines negotiation.

An effective negotiation process expands dialogue and develops crucial information around which a deal might be structured. Effective dialogue and productive information development is driven by advanced questioning and strong probing skills.

Negotiation theory draws on various disciplines including psychology, mathematics (game theory), communications, anthropology, sociology and others. I would like to draw on philosophy, specifically Cartesian logic, to introduce you to a simple, yet powerful questioning technique to add to your negotiation quiver.

The Four Cartesian Questions
At the core of Cartesian logic, credited to the French philosopher Rene Descartes, (1596-1650), is a set of four simple questions that are useful in evaluating any action or decision. The questions are (where X is the question or action you are contemplating):

1. What would happen if you did X?
2. What would happen if you didn’t do X?
3. What won’t happen if you did X?
4. What won’t happen if you didn’t do X?

To illustrate how these questions are implemented, consider being faced with the question of settling a dispute rather than going to court. I would apply the Cartesian questions as follows:

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Resolving Disputes Without Resorting to Battle

Introduction
When a dispute arose in times gone by, the disputants agreed to fight a duel to settle the score, or perhaps more accurately, to eliminate a disputant (rather a resourceful way of resolving a dispute!). These duels did not involve any conversation, discussion or legal polemics, but were purely based on a match of marksmanship where the better shooter won.

Today we have advanced somewhat by settling these scores in the battle of the courtroom. Although not usually as lethal as the duel, it certainly is still very costly and ineffective for the most part. Moreover, the disputants live another day to file an appeal (a problem which the duel addressed quite well!).

A shortcoming of resolving disputes through litigation, although necessary at times to be sure, is that it only resolves the issues on the mono-dimensional level of legal principles and doctrines.

Disputes, however, are seldom only about the legal strengths and weaknesses, or winner and loser. There are multi-dimensions to a dispute below the surface, which are neglected and remain unresolved in most litigated cases. This means that in litigation, the symptoms of the dispute may be band-aided, but the underlying dynamics are most likely exacerbated. Hence the high rate of appeal.

These below-the-surface dimensions of a dispute can be broadly distilled into three elements: narratives; emotions; and attributions.

In this column, I will explore these elements and suggest ways of putting them to use in resolving differences without resorting to battle.

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The Language of Negotiation It's Not Only What You Say, But How You Say It

Introduction
An important lesson that I have learned in my years as a negotiation and mediation scholar and practitioner, and one which has faithfully guided my client work is that how you say something is as important as what you say. The phraseology that you choose and the way in which you frame issues will make all the difference to the success or failure of a negotiation. Many negotiators spend adequate time in preparing data, strategies, comparative pricing, market research and bottom lines, but neglect to invest time in preparing for how they will manage the critical communication aspect of the negotiation.

Effective communication in negotiations bears three hallmarks: Well organized; succinct, clear and cogent; framed as a need to be met or a problem to be jointly solved.

Perhaps a good way to demonstrate this is by first examining a real example of poor communication in negotiations measured against these three elements. We will then translate that content into a more constructive communication that incorporates these hallmarks of effective negotiation language.

An Example of Poor Communication
At the recent breakfast kickoff for the NATO summit in Brussels, President Trump met with the NATO Secretary General, Jens Stoltenberg. At that breakfast, The President held forth on issues that were of concern to him with regards to the NATO alliance.

(Disclaimer: This is not intended in any way to be reflective of how this author feels about Mr. Trump or the effectiveness of his presidency. This column is not a forum for that in any way whatsoever. The intent is only to extract valuable negotiation lessons for purposes of our own improvement). Below is a transcript of his remarks:

“Germany is totally controlled by Russia. . . "

The President was concerned about two issues in these remarks. Firstly, Germany being “a captive” of Russia because of the energy deal, and secondly, the disproportionate and unfair defense contributions among NATO countries, with the US paying the highest percentage of the largest GDP.

Let us measure the President’s words against our three hallmarks of effective negotiation language: Well organized; succinct, clear and cogent; framed as a need to be met or a problem to be jointly solved.

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Mending Fences: Reflections on the Kim-Trump Negotiation

Introduction
The opposing opinions across the U.S. political divide about the success or failure of the Kim-Trump Summit are quite predictable. One side of the aisle has deemed it a non-event, with vague language and no substantive commitments. The other side has hailed it as a resounding success ushering in a new world order of détente.

To reach a more realistic view of the success or failure of the meeting, (discounting partisan agendas), we need to assess the accomplishments of the meeting independently of the public’s expectations.

In this column, I will identify the obstacles that the leaders needed to overcome going into this meeting, the accomplishments that they achieved, and what specific behavior and conduct helped them to get to where they did. These observations will provide us with guidance in managing our own contentious negotiations.

Overcoming Obstacles
In transactional negotiations, such as the kind that President Trump is accustomed to, there is not usually a history of contentious and acrimonious relationships. The relationship and the negotiation begin simultaneously. There is no need to restore any previously eroded relationship before substantive discussions can begin.

In contrast, the relationship between the U.S. and North Korea has been hostile for generations. Furthermore, personal animosity between President Trump and Kim Jong-Un had exacerbated the situation to the extreme. When each side demonizes the other, productive and constructive talks cannot progress. The hostilities between the two nations and the antagonistic relationship between the two men, was the immediate obstacle that needed to be overcome.

Despite the unrealistic and naive expectations of immediate complete, verifiable, irreversible disarmament (CVID), the true success was accomplishing a modicum of humanizing of one another, so as to facilitate further talks in the future. In this regard the summit was a resounding success!

How They Did It
As I watched the TV coverage of the summit live, two things struck me. First was the difference of demeanor in the two men after they emerged from the initial private face-to-face meeting.

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Politics or Prudence: The Iranian Deal from a Negotiation Perspective

Introduction
President Trump’s decision to unilaterally withdraw from the JCPOA (the Iran Deal), has generated polarized opinions both domestically and internationally. If we look at the decision in the very narrow context of meeting the objectives of restoring American resolve and fulfillment of campaign promises, a strong argument can be made in favor of the decision.

However, if we examine it in the broader context of the stated desired and warranted objectives (discussed later in this column), the astuteness of the decision becomes more ambiguous

But even then, there is a refined art and science as to how this proposal phase needs to be conducted so as to attain efficient and optimal results. In this column I will share a powerful technique for the proposal and closing part of the negotiation.

The Conventional Approach
Before introducing this technique, let us consider the conventional approach and it’s pitfalls.

In this column I do not intend to judge the wisdom of the decision from a national security, foreign affairs or political standpoint, but rather to examine it from a negotiation scholar and practitioner perspective. I will survey the objectives; the potential outcomes and costs; and I will then offer an alternate approach which may potentially have been more constructive in meeting our objectives and beyond.

U.S.Objectives and Likelihood of Achieving Them
When we attempt to catalog the U.S. objectives with regard to Iran, and what President Trump hoped to realize by withdrawing from the JCPOA, we envision a renegotiated agreement that provides for:

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The Art of Closing

Introduction
Negotiation is often seen as an event rather than a deliberate orchestrated progression. As a result, many negotiators will push offers and proposals prematurely, before sufficient information has been developed and adequate trust has been built. Proposals at this stage are typically rejected out of hand even though the proposals may actually be good ones.

In truth, it is only after a productive exchange of information has occurred, a profound exploration of each side’s concerns and needs has been achieved, and the parties genuinely feel deeply heard and understood, that the proposal phase of the negotiation can begin.

But even then, there is a refined art and science as to how this proposal phase needs to be conducted so as to attain efficient and optimal results. In this column I will share a powerful technique for the proposal and closing part of the negotiation.

The Conventional Approach
Before introducing this technique, let us consider the conventional approach and it’s pitfalls.

Typically, a party to a negotiation will offer a single-point proposal or offer. For example a job candidate might suggest a salary of $80,000, or a prospective buyer may offer a home seller $500,000 for the purchase of his home. The other party will usually push back with a counter offer, and the bargaining standoff begins. This will end in either impasse or in a compromise in which potential value has been sacrificed and a degree of resentment might even have been spawned.

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Balancing Power and Principle in Negotiation

Introduction
Much has been debated in negotiation theory and written of in negotiation journals, about negotiating from a position of perceived weakness. There is comparatively little on negotiating from a position of power, perhaps because that is not seen as very much of a challenge or maybe a challenge that we all hope for!

In truth, negotiating from a position of power comes with its own set of challenges, potential pitfalls and dangers. In this column I shall explore some of these dangers, discuss the importance of balancing power with principle and provide ideas of how to achieve that balance.

Potential Pitfalls in Exerting Power in a Negotiation
The kinds of power we may access in a negotiation could come from various sources. Some examples are: hierarchy; knowledge; and having a strong alternative option.

Hierarchy is power. A CEO negotiating with a manager possesses a status which confers significant power upon him that can be exploited in the negotiation.

Knowledge can be a source of power. Suppose a real estate developer is interested in buying a rental property that is in a residential zoning law area. He has inside knowledge that the zoning laws are about to change and will soon include that area into a commercial zoning area.

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Negotiating Without Trust Or The Convenient Contingency Clause

Introduction
A few years ago, while working with the European Union (EU), I was having lunch with several European lawyers in Copenhagen. “Why”, one of them asked me in a thick German accent, “when negotiating deals with Americans, they always come with an army of lawyers and reams of contracts?” (In their countries, lawyers play a very minor role and deals are often still consummated on a handshake).

Thinking quickly on my feet, I responded: “In America, people do business on the basis of not trusting one another, hence armies of lawyers and reams of contracts. When Europeans do business, it is on the basis that you do trust one another and therefore less need for the lawyers and extensive contracts”.

This highlights the cultural differences of whether or not to negotiate with someone we don’t trust. In Europe and Japan for example, establishing trust before negotiating is considered a prudent practice in business. The United States however, with more of a “throw caution to the wind” attitude, and a greater risk tolerance, is less concerned about trust, as long as they do the utmost in mitigating risk with very tight contract language and a strong legal system to enforce any breach.

What happens in a culture that typically builds their negotiations on trust such as the Europeans, and finds they need to negotiate with a partner whom they do not trust?

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TO TALK OR NOT TO TALK - THAT IS THE QUESTION On the Value of Dialogue and Talk for Its Own Sake

Introduction
A recent article in the Wall Street Journal (December 27th 2017) presented an interesting international debate between Germany (together with some other NATO allies) and the U.S. as to whether to engage in dialogue with Russia about NATO-Russia issues. The debate pivots on whether talk with Russia will help or hinder the future defense and interests of the NATO alliance, given what many see as Russia’s aggressive stance towards Ukraine.

The article states that U.S. Secretary of State Rex Tillerson said at a meeting of NATO foreign ministers recently that Washington didn’t want regular meetings with Russia “just to talk”. Instead, he said, that the U.S supports “a dialogue with results expected” (emphasis by this author).

Germany, on the other hand, says it remains open to dialogue and in fact recent meetings have allowed the two sides to openly exchange views on difficult and controversial issues.

This difference between the U.S. position and that of Germany, reflect two divergent views on the value of dialogue and talk for its own sake, even when tangible results may not necessarily be the outcome, or even the intent.

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