Broad Field Project: Canon of Negotiation
Initiative
Why
There's A Need For A ‘Canon of Negotiation’
Christopher Honeyman & Andrea K. Schneider
This article was first published in
Alternatives to the High Costs of
Litigation, April 2004 (CPR, New
York.)
Suppose you were headed
into surgery, an operation of 26 elements, and as you were slipping
under the ether you had the hallucination that your carefully selected
surgeon had been trained in elements A through M--and was pretty much
making up the rest as he went along. Would that bother you? Yes?
Would it reassure you any, if you then imagined that down the hall in
another operating theater was another surgeon, also said to be one of
the best, who knew N through Z backward and forward, but who for some
reason had never been informed that elements A through M even existed?
No?
Well,
fortunately, to the best of our knowledge, you’re not facing that
situation in surgery.
There is good
evidence, though, that the professional equivalent of our surgical
hallucination is operating every day in negotiation. For instance, an
international negotiation over locating a new plant in an indigenous
area in another country will probably require dealings among lawyers,
U.S. and foreign business executives, representatives of indigenous
groups, and government officials and planners.
Assume
everybody involved is exceptionally well-resourced—the lawyers are
negotiation-savvy and were trained in some of the best law school
programs in negotiation; the executives were trained in negotiation in
top-of-the-line business schools; and everybody else involved was, in
turn, trained in negotiation in leading graduate institutions.
Still, it is
now increasingly evident that the differences in what has until now been
considered relevant substance and doctrine among even the best of these
programs are major, and almost inevitably will get in the way of much of
the common understanding the negotiators seek to create. Despite the
great improvement in the training of negotiators over the past 20 years,
the authors believe that fundamental improvement, among even the best
trained, is still possible.
Negotiation
underlies a huge range of social activity and pervades a great variety
of supposedly “legal” activity. Research and teaching of negotiation
have mushroomed in the past 20 years; by now, an understanding of
negotiation’s essentiality is supposedly inculcated in many types of
undergraduate, graduate and professional education. Most researchers
and teachers in the field maintain that negotiation is a universal
phenomenon. Yet the ideas currently taught and researched turn out to
be based on quite different materials, and significantly different
doctrines, in the various disciplines and types of schools, without much
effort to determine whether or why this should be so.
We have
previously described, and even railed against, the truncated and even
arbitrary structures of negotiation training. For practical
purposes these often seem to assert, at least impliedly, that the
subject can be adequately learned in a single graduate or undergraduate
course, or even a 40-hour crash course. See Christopher Honeyman, Scott
H. Hughes and Andrea K. Schneider, “How Can We Teach So It Takes?” 20
Conflict Res. Q. 429 (2003). This was the lead article of a series
of nine, which sought to expand concepts of training in the field.
More
recently, our focus has changed to the substantive contents of
these courses. Over the course of two large-scale projects that have
sought to bring together many kinds of expertise in dispute resolution
(see the Theory to Practice project, which is described at
www.convenor.com/madison/t-t-p.htm; and the Broad Field project, at
www.convenor.com/madison/broadfld.htm), we began to realize that even on
the most basic element of dispute resolution—negotiation—colleagues
“knew” very different things. During 2003, we began an effort to assess
and highlight those aspects of negotiation that are truly universal, but
have not yet been generally recognized as such—essentially because they
have emerged from separate streams of scholarship and discovery.
As a result,
we have identified systematic biases in the education that each of us
has received, in what our teachers thought we needed to know
(reflections, of course, of what they knew.) It began to seem
likely that an effort to create a cross-disciplinary “canon of
negotiation” would yield dividends for each field taking part.
STARTING THE INITIATIVE
In the summer of 2003, we
invited an initial group of scholars and practitioners to work on
developing the “canon.” Although we have been fortunate to work on
previous occasions with some of the most famous scholars and
practitioners this field has produced, in this instance we reserved
their participation to a second phase, which is described below. For
purposes of the initial meeting and the writings to come from it, we
decided instead to begin with a population that might seem
counterintuitive: We invited as the first participants leading members
of the field’s second generation.
These younger
scholars and practitioners, unlike those 20 years or more older, got
into the conflict resolution field when it was already recognizably a
field. Because they actually had been through the initial courses
designed by the first generation of leading scholars, they had been
required to read materials in depth--and recently. We felt that made
for an ideal start. We encountered ready acceptance in a wide variety
of settings, inherently an indication that others felt the time was
right for this effort.
The first 25
essays in the canon will be published this month as a special issue of
the Marquette Law Review. [For information and copies, contact
the Marquette Law Review, Marquette University Law School, 1103
W. Wisconsin Ave., Milwaukee, Wis. 53233 (414-288-7090).] We can only
describe them here briefly, but we believe they would be difficult to
improve on at this stage of the field as crisp, concise, and
up-to-the-minute assessments of the respective lines of research and
knowledge-building they address.
The fields
have drawn from in scholarship, as represented in the articles, so far
include law, psychology, behavioral economics, cultural studies, urban
planning, and philosophy; practice backgrounds include labor mediation
and arbitration, ethnic and tribal disputes, and civil and criminal
disputes involving the U.S. Department of Justice.
This is,
moreover, a work in progress. In the coming phases, described briefly
below, it’s likely that the canon initiative will draw from additional
scholarly fields and practice domains.
The inquiry
formally opened with a two-day symposium, held at Marquette University
Law School in November. The focus, then as now, was on the
“semi-discovered”— the wisdom about negotiation that was truly universal
in the evaluation of panels of experts, but up to now treated as
relatively standard knowledge in one field while being mostly obscure to
the next. (The list of topics that proved to be already taught and
discussed across the participant fields was surprisingly short; see
below.) As expected, each person invited to the meeting had indeed come
with material that was common knowledge in his or her own kind of school
or practice, but “news” to others in the room—despite the fact that our
colleagues, individually, were about as well-read as anyone you are
likely to find in their respective parts of this field.
THE EXISTING ‘COMMON CORE’
As noted above, we needed
to agree on subjects that were already so well taught and ubiquitous
that they needed no further analysis and discussion in our setting. But
we also needed to eliminate subjects that, while important, were only
important to particular disciplines, and therefore would not be a
necessary part of any interdisciplinary negotiation canon.
Finally, we
examined topics that at least some of us thought were crucial to any
negotiation canon, but either unknown or insufficiently covered
outside--and sometimes inside–THE respective disciplines. In other
words, the project was trying to discover what subjects should be
part of an interdisciplinary negotiation canon, but were not yet.
We quickly
reached a rough agreement on which subjects would already be considered
part of a negotiation canon. The group identified about six topics that
both should be part of any negotiation canon and already
were taught in all of our respective disciplines. In other words, these
subjects already were part of an interdisciplinary negotiation canon.
They are:
(1) The idea of
personal style or strategy or personality in a negotiation
(including the concepts of competitive or adversarial versus
interest-based or principled or problem-solving);
(2) The use of
communication skills—both listening and talking—in negotiation;
(3) The concept of
integrative versus distributive negotiations;
(4) The concept of a
“bargaining zone” between the parties as well as the concepts of
“best alternative to negotiated agreement,” or Batna, and
reservation prices;
(5) The use of
brainstorming and option creation in a negotiation; and
(6) The importance
of negotiation preparation.
These
concepts are indeed found in the leading textbooks in a multitude of
disciplines. See accompanying box. But by the terms of the initiative,
these subjects did not warrant further discussion.
The second
step was to eliminate unnecessary contenders for the negotiation canon,
by agreeing on certain items that were only taught in one discipline,
but appropriately so and, therefore, should not be considered as part of
a general negotiation canon.
For example,
in relation to law, we agreed that issues of lawyer-client relations,
the rules of professional responsibility, legal rules regarding
settlement, and “bargaining in the shadow of the law” (and the court)
all were issues that should be taught in negotiation courses in law
schools—but not necessarily in other disciplines.
We attempted
to make the same analysis for other fields, admittedly with a somewhat
less solid consensus, because this initial group only had one or two
other academics from each of the other disciplines. For business,
topics specific to the field included quantitative methods, intra-firm
negotiations, “the manager as mediator,” and acquisitions. In the area
of conflict transformation and societal conflict, specific topics
included the question of earning legitimacy, how to get the parties to
the table, the fact there may not even be “a table,” and that factors
always present include a long-term relationship and multiple parties.
Other fields that were represented generated similar specialty subjects.
We were now
ready to tackle the subjects that remained—what should be included as
part of an interdisciplinary negotiation canon, but was not yet
recognized as such. This is a huge task, so the essays in the first
symposium are but a “first take” on that task.
Also, in the
capsule descriptions below of the first series of articles, one caveat
is in order: Some “topics” that are supposedly being taught in more than
one kind of school or environment share a title, but not the same
underlying material. Thus while one or another of the titles
below may look familiar, the subject matter may be quite
different from what you expect to see associated with it, because
of the author’s different discipline and viewpoint.
The following
are brief thumbnail descriptions of the articles in the canon’s first
series:
1) In “Action Science and Negotiation,” Scott Peppet, an associate
professor at the University of Colorado School of Law, and Michael
Moffitt, an assistant professor at the University of Oregon School of
Law, explore how the research of Chris Argyris, a professor of education
and organizational behavior at Harvard Business School, can inform
negotiation practice and pedagogy.
2) In “Teaching Negotiators to Analyze Conflict Structure and
Anticipate the Consequences of Principal-Agent Relationships,” Jayne
Seminare Docherty, associate professor of conflict studies at Eastern
Mennonite University, and Marcia Caton Campbell, an assistant professor
of urban and regional planning at the University of Wisconsin in
Madison, Wis., explain how agency relationships work in a negotiation
from a public policy perspective.
3) In “The Role of Apology in Negotiation,” Prof. Jennifer Gerarda
Brown, of the Quinnipiac University School of Law, examines the purposes
of an apology in negotiation and the qualities that make an apology most
effective.
4) In “Aspirations in Negotiation,” this article’s coauthor, Andrea K.
Schneider, explains the importance of setting specific, optimistic and
justifiable goals in a negotiation.
5) In “Understanding
Conflict in a Postmodern World,” Scott Hughes, an associate professor of
law, University of New Mexico School of Law, explains how the emerging
neuroscience work in complex adaptive systems (i.e., complexity theory),
will affect how we view both conflict and some of the basic tenets of
conflict resolution.
6) In “Contingent Agreements: Agreeing to Disagree About the Future,”
Michael Moffitt surveys the theoretical and practical implications of
including contingent agreements in negotiated deals.
7) In “Creativity and Problem-Solving,” Jennifer Gerarda Brown
discusses recent thinking on how people can be more creative and which
of these creativity tools can help the most in negotiation.
8) In “Culture and Negotiation: Symmetrical Anthropology for
Negotiators,” Jayne Seminare Docherty urges negotiators to go beyond the
typical “tip of the iceberg” approach to understanding culture and the
multiple cultural frameworks that can be at play in negotiation.
9) In “Decision Analysis in Negotiation,” Jeffrey Senger, senior
counsel for dispute resolution at U.S. Department of Justice, examines
how decision analysis can be used to assess the value of a case
and to help to determine the best strategy in a negotiation. 10) In “Emotions in
Negotiation: Peril or Promise,” Daniel Shapiro, a psychology
instructor in the Harvard Medical School psychiatry department, and
an associate at the Harvard Negotiation Project in the Harvard Law
School, tackles the common idea that emotions can be harmful in a
negotiation. While Shapiro outlines the risks of emotions, he also
discusses the equal importance of enlisting positive emotions to
improve the efficiency and effectiveness of a negotiation.
11) In “The New
Canon of Negotiation Ethics,” Kevin Gibson, an associate philosophy
professor at Marquette University, looks at the way that ethical
considerations have moved beyond the legal threshold of “minimally
acceptable conduct” toward acting in accordance with universal
principles. He also looks forward to the integration of
sociobiology and post-modernism into our consideration of
appropriate conduct in negotiation.
12) In “Perceptions of Fairness in
Negotiation,” Nancy Welsh, and associate law professor at Penn State
University’s Dickinson School of Law, examines criteria for measuring
both distributive and procedural fairness, and the variables that
influence fairness perceptions.
13) In “What’s in a Frame? (That Which We
Call a Rose by any Other Name Would Smell as Sweet),” Marcia Caton
Campbell and Jayne Seminare Docherty discuss the dynamics of framing in
an entrenched, large scale, multiparty conflict. This use of
macro-level frames is quite different from the micro-level framing that
occurs as the negotiation communication actually begins.
14) In “Game Theory Behaves,” David Sally,
visiting assistant professor at Cornell University’s Johnson School of
Management, examines game theory’s usefulness--beyond the commonly
taught “prisoner’s dilemma”--for explaining negotiation behavior.
15) In “Heuristics and Biases at the
Bargaining Table,” Russell Korobkin, a UCLA School of Law professor, and
Chris Guthrie, a professor at Vanderbilt University’s School of Law,
tackle the interdisciplinary field of decision theory, which examines
how individual negotiators can be affected by certain psychological
factors to make “irrational” decisions about negotiation outcomes.
16) In “Identity is More Than Meets the “I”:
The Power of Identity in Shaping Negotiation Behavior,” Daniel Shapiro
discusses the concept that negotiator identity is fungible in
many situations.
17) In “The Impact of the Impact Bias on
Negotiation,” Chris Guthrie and David Sally explain that an emerging
movement in psychology—known as positive psychology or hedonic
psychology or affective forecasting—shows how negotiators may not even
know what they want in a negotiation.
18) In “Principles of Influence in
Negotiation,” Chris Guthrie demonstrates how the concepts of persuasion
presented by Arizona State University psychology Prof. Robert Cialdini
can be used in a negotiation.
19) In “The Law of Bargaining,” Russell
Korobkin, Michael Moffitt and Nancy Welsh review the general common law,
context-specific strictures, and ethical rules that constrain and guide
the negotiator bargaining “in the shadow of the law.”
20) In “Narratives, Metaphors, and
Negotiation,” Jayne Seminare Docherty discusses how narratives and
metaphors can help an effective negotiator understand the parties in a
negotiation.
21) In “Negotiation as One Among Many Tools,”
Jennifer Gerarda Brown, Marcia Caton Campbell, Jayne Seminare Docherty,
and Nancy Welsh examine what factors and elements in addition to
negotiation can be used to affect a conflict situation. They examine
some approaches that nonprofit organizations such as Search for Common
Ground have used overseas, and demonstrate that these concepts can be
translated into domestic conflicts as well.
21) In “Three Conceptions of Power,” Jayne
Seminare Docherty, Russell Korobkin and this article’s coauthor,
Christopher Honeyman, present three different definitions of power and
how each conception works in negotiation.
22) In “Rapport in Negotiation and Conflict
Resolution,” Janice Nadler, an associate law professor at Northwestern
University School of Law, and a research fellow at the American Bar
Foundation, discusses how the development of rapport between negotiators
affects negotiation outcomes.
23) In “Team Negotiations,” Kathleen
O’Connor, who is an associate professor of management and organizations
at Cornell’s Johnson School of Management, and David Sally, outline the
ways in which the presence of a team changes a negotiation.
24) In “Social Maneuvers and Theory of Mind,”
David Sally explains how the interpretation of communication signals—the
theory of mind—should be further examined for lessons and advice that
this can give negotiators.
WHAT COMES NEXT?
The sources of wisdom in this “composite
field” are so diverse that this effort can succeed only if it thoroughly
enlists criticism and amendment.
The authors, accordingly, have
provided for a series of occasions for corrections and expansion in the
near future. These already include more than 16 conference sessions
designed for the forthcoming 2004 national meetings of the American Bar
Association’s Section on Dispute Resolution, the Law & Society
Association, the International Association for Conflict Management, and
the Association for Conflict Resolution.
In this phase, we are looking
forward to adding the experience and wisdom of some of the field’s
recognized leaders to the debate. We expect that these, in turn, as
well as additional ideas from the emerging leaders with whom we began,
will lead to further writings and discussions in this initiative.
Christopher Honeyman is a Madison, Wis., mediator who heads his
own firm, Convenor. He is director of the “Broad Field” project, a
national initiative to create better cross-fertilization across a wide
range of activity that constitutes conflict resolution. The project is
funded by the William and Flora Hewlett Foundation. Andrea Schneider is an
associate law prof at Marquette University Law School in Milwaukee. The
authors thank Menlo Park, Calif.-based William and Flora Hewlett
Foundation for its support of the Broad Field project, and the Marquette
Law School for its support of the November 2003, symposium that began
this inquiry. |
