Rabia Mustafa* and Sharafat A. Chaudhry**
Chapter 5 of the book ‘Getting to Yes Negotiating an Agreements without Giving in” is about how using objective criteria can resolve conflicts.
In negotiations, it is essential to use objective criteria to resolve conflicts and ensure efficient and amicable outcomes.
Will is costly whilst objective criteria aren’t
Positional bargaining, which focuses on what parties are willing and unwilling to accept, can be costly and inefficient. Instead, negotiators should focus on objective criteria, such as market value, replacement cost, depreciated book value, or competitive prices.
Objective criteria leads to good agreement
Using objective criteria can help build a better contract and reduce the risk of back-downs. By focusing on the merits of the problem rather than the parties’ mettle, principled negotiation produces wise agreements amicably and efficiently. This approach also reduces the number of commitments each side must make and then unmake as they move toward agreement.
Independent standards are even more important to efficiency when more parties are involved. Positional bargaining is difficult at best, as it requires coalitions among parties and is more difficult to change positions. In such cases, adopting and changing positions with higher authority can be time-consuming and difficult.
Developing objective criteria
- Fair standards
Developing objective criteria involves developing alternative standards beforehand and thinking through their application to your case. At a minimum, objective criteria should be independent of each side’s will and should be legitimate and practical.
- Fair procedures
Fair procedures can also be used to produce an outcome independent of will. In negotiation, parties can use various procedural solutions to settle differences, such as taking turns, drawing lots, or letting someone else decide. These methods provide an incentive for both parties to agree on fairness and provide an equal opportunity for each side.
Letting someone else play a key role in a joint decision is a well-established procedure with infinite variations. Parties can agree to submit a question to an expert, ask a mediator, or submit the matter to an arbitrator for an authoritative and binding decision. Professional baseball uses ‘last-best-offer arbitration’ to settle player salary disputes.
Negotiation with objective criteria
To discuss objective criteria with the other side, focus on three basic points: (i) framing each issue as a joint search for objective criteria, (ii) being open to reason as to which standards are most appropriate and how they should be applied, and (iii) never yielding to pressure, only to principle. Focus on objective criteria firmly but flexibly, and use each standard the other side proposes as a lever to persuade them.
- Contrary to the traditional ‘one cuts, the other chooses’ procedure, parties should consider their own interests and the criteria they believe are most relevant before deciding on their roles in the negotiation.
- Principled negotiation involves an open mind and a willingness to consider the other side’s position. It is not about using objective criteria as arguments to support a position, but rather focusing on the merits of the issue. This approach is more persuasive and effective than using principles as arguments to support positions.
- Never yield to pressure, as this approach is more persuasive and effective at getting the other side to play. In negotiations, the principled response is to invite the parties to state their reasoning, suggest objective criteria, and refuse to budge except on this basis. This approach ensures that the other side is not locked in by the principled approach, but rather by the merits of the issue.
In negotiations, one’s willpower, legitimacy, and persuasiveness can give them an edge over others. A refusal to yield except in response to sound reasons is easier to defend publicly and privately than a refusal to yield combined with a refusal to advance sound reasons. Principled negotiation is a dominant strategy over positional bargaining, as it allows for a shift from positional bargaining to objective criteria. This strategy allows for fairness and a hard-hearted partner who will not let you yield to pressure. If the other side refuses to budge, there is no further negotiation. Before leaving, assess if there is an objective standard that makes their offer fair. If there is no give in their position, weigh the substantive benefit against the reputational damage of walking away. Shifting discussion from the other side’s willingness to do to the matter’s decision does not guarantee a favorable result but provides a strategy to pursue without the high costs of positional bargaining.
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* The writer is a Linguist and Senior Research Fellow at the School for Law and Development
** The writer is an Advocate, an internationally accredited Mediator, and the author of Law and Development.