Consequentialist ethical model

The consequentialist ethical model, which considers that ethics’ objective is to achieve the best consequences, opposes the deontological ethical model. There are several types of consequentialist ethics, the best-known of which is utilitarianism. It famously formulates that ethics should seek the greatest happiness for the greatest number.

Utilitarianism affirms that a variable must be maximised, whether happiness, utility, pleasure or well-being. It appeared in the Anglo-Saxon context at the time of industrialisation, where there was great optimism in applying the methods of the pure sciences to the Social Sciences. Utilitarianism assumes that ethics can be reduced to a variable, and its maximisation, and that this variable can be known. This is gauged using a mechanism similar to a happiness machine, which measures how happy people are.

This may sound strange, but to an economist, this sounds familiar. The model of man on which traditional economic theory is based states that rationality is the maximisation of a variable. That model is known as homo economicusThis view adopts utilitarianism and, in general, the consequentialist approach as its undisputed premise.

Is strategy not to correctly match means and ends? Anticipating the consequences of our actions is part of any strategy. However, the question is whether consequences can be the only decision-making criterion. Let’s imagine a case where we have a terrorist in custody; who knows where a bomb is going to explode in a central place in two hours. The consequentialist question would be: is it morally justified to torture this terrorist to prevent the bomb from exploding? I have asked my students many times about this textbook ethical scenario. The answers are divided between more deontological or consequentialist students.

Since the happiness machine does not exist, economists inspired by utilitarianism sometimes tend to consider money as the variable to be maximised. This approach can be contrasted with a more robust ethical view that affirms that human goods are plural and complex. Michael Sandel offers an example of this argument in his book What Money Cannot Buywhere he gives examples of the moral limits of the market. Relationships of friendship and love are never, or should never be, reduced to monetary terms. But beyond that, is it morally justified to sell a kidney? To be a surrogate? Can everything be bought and sold? Is it justifiable to pollute in exchange for money? Is it lawful to buy residency or nationality?

This phenomenon alluded to by Sandel is technically called weak-sense incommensurability and means that values cannot be reduced to a single variable. In general, the cases allude to reducing everything to monetary terms. Values are more plural, and human beings are more complex.

Perhaps a more complete evaluation of the ends should be made from the strategy point of view. Creating a plan to maximise one variable may cause one to lose sight of other goods involved. Agreement may arise precisely because the parties have different interests. But those interests need to be explored.

Anticipating the consequences of actions is a matter of prudence. Strategy seeks victory, but this does not always come from maximising a single variable. Life is more plural and complex.

Bartolomé de las Casas, apology for peace

Bartolomé de las Casas (1484-1566) was a Spanish Dominican friar, writer and missionary known for defending the rights of the indigenous peoples of America during the Spanish colonisation period. He had a somewhat self-taught education, oriented towards Theology, Philosophy and Law. He went to the Indies in 1502, ten years after the discovery of America, in La Española, Santo Domingo. He was ordained a priest in 1512 and was the first to do so in the New World. He later became bishop of Chiapas, Mexico.

The controversy with Juan Ginés de Sepúlveda (1550) on the status of indigenous people and the lawfulness of war is famous. Las Casas was a pioneer in thinking about human rights and social justice. In this controversy, Bartolomé de las Casas provides some arguments for abstaining from war and on equality, which will be discussed below in the style of Estrategia Minerva.

“In the first place, because, between two evils, if one cannot be avoided, the lesser should be chosen, according to right reason”(Bartolomé de las Casas, Apología, cap. 40).

A distinction must be made between the doctrine of the lesser evil and the doctrine of the double effect. According to the former, the option that produces the worst consequences must be avoided at all cost. According to the second, when a given action is performed, there are unintended negative consequences in addition to the intended ones, which are positive. Applying the double effect assumes that the good produced by this action is greater than the evil.  

The relationship between the lesser evil and rationality is fundamental. Rationality provides the tools and analytical framework necessary to apply the lesser evil principle effectively.

“In the second place, it is manifest that more innocent people will perish in this way than those we are trying to free. Moreover, by a very strict negative precept, we are forbidden in any case to kill the innocent” (Bartolomé de las Casas, Apología, cap. 40).

Innocent people, in this context, are those who do not actively participate in combat. If self-defence is usually justified under just war theories, it does not extend to innocent people.

“Third, because in war, the innocent cannot be distinguished from the guilty”(Bartolomé de las Casas, Apología, cap. 40).

War is defined in one of its meanings by the Spanish Royal Academy as “armed struggle between two or more nations or between sides of the same nation”. They are usually brutal, violent situations that involve suffering and pain, damage and victims on both sides. Las Casas’ reflection is along the lines of recalling that, in these situations of armed conflict, the nuances and differences are difficult to define, especially between combatants and innocent people. The consequences in personal and material terms are often terrible.

In the final part of his work Apología, Bartholomé de las Casas argues: “the Indians are our brothers for whom Christ gave his life. Why do we persecute them without having deserved such a thing with inhuman cruelty?”(Bartolomé de las Casas, Apología, cap. 63).

Facing his opponent, Ginés de Sepúlveda, in the Valladolid Controversy, Bartholomew de las Casas maintains that the indigenous are brothers of the Europeans. This, far from being an improvised principle in the face of the new situation, is at the core of Christianity. In the Epistle to the Galatians, St. Paul writes: “There is neither Jew nor Greek, there is neither slave nor free, nor is there male nor female; for you are all one in Christ Jesus” (Galatians 3:28). This message of equality was a novelty in Antiquity and continues to be so today and had as its antecedent the Stoics.

The best-known work of Bartolomé de las Casas is “Brevísima relación de la destrucción de las Indias/A Very Brief Recital of the Destruction of the Indies “, published in 1552. This book had a significant impact in Europe and helped to generate a debate on the human rights of indigenous people. It is an invitation to consider otherness and rethink one’s assumptions. To be authentic, we must start with the assumption of differences, starting from the equality of human beings.

“If this is done, I am convinced that they will embrace the evangelical doctrine, for they are neither fools nor barbarians, but of innate sincerity, simple, modest, meek and, finally, such that I am sure that there are no other people more disposed of than they to embrace the Gospel, which once received by them, it is admirable with what piety, ardour, faith and charity they fulfil the precepts of Christ and venerate the sacraments; For they are docile and ingenious, and in skill and natural endowments they surpass many people of the known world (…)” (Bartolomé de las Casas, Apología, cap. 63).

Underlying Las Casas’ message is the notion of equal human dignity, the basis of human rights. A common criticism of this author is that he did not extend this concept to black people. His views need to be appropriately contextualised historically and not read from the postmodernism of some views.

Mestizaje/Mixed-race and syncretism could be vindicated from the approach close to Bartolomé de las Casas. Racists of all stripes are afraid of mixing, and what has characterised the most genuine view of Latin American history is precisely mestizaje, which is something to celebrate. Syncretism, as a fusion of cultures and/or religions, is also something positive to learn from. It can enhance the best energies of society, but as is often the case in identity politics, it can be approached in a divisive and exclusionary manner. In the face of this risk, Bartolomé de las Casas launched a universal message of equal human dignity and fraternity as the engine of social progress.

Deontological ethical model

Before delving into more strategic content, I will dedicate a series of posts to various ethical models. These models are used to judge our actions and can also inspire multiple strategies. The first ethical model is the deontological model.

First, it is necessary to clarify its meaning to avoid confusion. There are two meanings for the term ‘deontology’. The first has to do with professional ethics, which is related to the set of values and rules that regulate the practice of a profession and that are sometimes set out in a code of ethics, as in the case of doctors, lawyers, journalists, etc… The second is related to an ethical approach that is based on duties.  

I will explain this second meaning in this post. The deontological ethical model, based on duties, often contrasts with the consequentialist ethical model, which is based on consequences. More precisely, the deontological model is based on the individual’s duty to act according to the correct principle or value.

The paradigm of the deontological ethical model is the philosophy of Immanuel Kant and is usually exemplified in the formulations of the categorical imperative. Thus, it is stated, “behave in such a way that your maxim of action becomes a universal law”. This seems an essential moral principle, but some argue it is empty. With sufficient skill, the universal law can be turned into unacceptable claims. Let’s see how this mechanism works. If someone wants to use hate language against minorities, it seems that this could not be universalised. However, if someone advocated positive discrimination policies, could they be universalised? Some might argue that it does not make hate speech but that the principle of universalisation is the freedom of expression of people with their own pride.

Behind the categorical imperative lies the Golden Rule of Humanity, which has strategic significance and holds “treat others as you would like to be treated yourself”. It is a rule based on reciprocity, but unlike the an eye for an eye, it is not a rule of response to an attack but anticipates a cooperative attitude, which implies putting oneself in the other person’s shoes. Some studies indicate that this long-term cooperative attitude is the one that yields the best results.

Another formulation of the categorical imperative is to “always treat every human being as an end in himself, never as a means”. This shows how the deontological ethical model is a maximal ethics. Others connect this view with the notion of human dignity. From the perspective of strategy, it could be said that this is a commendable statement of principles, but that human relations move between cooperation and competition. The strategy should enhance the cooperative elements and diminish the competitive aspects to achieve specific objectives.

This ethical deontological model is legalistic, rigorist, not based on experience, rational, and universally applicable. Two maxims defended by this model are of particular strategic importance. The first is that promises must always be kept. In the U.S., some journalists go to prison for not revealing their sources in court. Their promise of confidentiality is stronger than the legal duty to testify. Keeping promises is a good ethical principle, and society relies heavily on the expectation that promises will be kept. Objections may come from the Machiavellian ethical model, where keeping one’s word is not always the best solution. The deontological model holds that commitments should always be honoured, regardless of the circumstances. The strategy should prevent being exploited by those who claim commitments and then do not want to fulfil them.

The other maxim of the ethical deontological model with strategic interest is that the truth must always be told. First, a distinction should be made between not telling the whole truth and lying. Second, the strategic use of threats assumes they must be credible to be effective. The ethical deontological model holds that the truth must always be told, even if it harms the speaker. In such cases, the best strategy is silence. Or as Wittgenstein said “what cannot be spoken about, it is better to remain silent about”.

The deontological ethical model is a morally demanding proposal; it could be described as rigorist. It is based on universally valid principles not based on experience. It can function as a mechanism to make commitments and threats solid and credible. However, the strategy learns from experience. Thus, there may be special situations where exceptions to the general principles can be made, provided they are adequately justified.

Principles and values are guides for action that occasionally mark the limits where one should not go. The ethics of duties should allow for a flexible application, not an absolute one. Arguably, this flexibility reflects the spirit of Kant, but it is closer to life.

Managing negotiations: arguing better 

A common topic on negotiation courses is the appropriate combination of emotions, tactics, and interests. Sometimes, an idealised and overly collaborative image of negotiation situations is presented when, actually, it is essential to deal with emotional tensions and, in particular, to avoid being manipulated by the other party. Gavin Kennedy, John Benson, and John McMillan approach their book Managing Negotiations: How to Get a Better Deal from this “realistic” perspective, where a chapter is devoted to the negotiation stage of arguing better.

The authors start by asserting that people negotiate because they have or believe they have a conflict of rights or interests with the other party. Most negotiation scenarios occur in mixed situations of cooperation and conflict, in which the parties want something from the other party that they cannot achieve on their own. This defines the Zone of Possible Agreement -ZOPA- between the parties’ BATNAs -Best Alternative to Not Negotiating-.

People with different interests argue. When interests close to their heart are threatened, most people know how to argue, and even anyone can become emotional. It is for this reason that we should be concerned about those who avoid speaking up because little or nothing of what they value has been threatened. While some people say they don’t have to argue, others admit they must debate or discuss. This is enough.

Regardless of their name, Kennedy, Benson, and McMillan have chosen to call this phase of negotiation argument.Opening, Presentation, and Exchange are alternative ways of describing this stage. However, the authors opt for the term argument since it indicates that both parties are involved. Although the word usually suggests emotional conflict, it can also mean a rational presentation of the reason for doing or not doing something.

Each side gives reasons why they believe something is necessary or attempts to show by reasoning why something is true. They will discuss these conclusions and try to persuade each other through reasoning.

Improving behaviour

Eliminating the habit of interrupting your opponent from your behaviour is one of the most straightforward and most beneficial steps to improve your negotiating performance. People who interrupt someone are essentially telling them to “shut up.” (“You can’t talk while I’m interrupting you”). Naturally, the person receiving this message resents it, and before long, there is shouting between some parties during the negotiation; shouting, including insults, can be expected. The other is treated without respect.

Negative discussions reinforce your opponent’s initial inhibitions, which prevent avenues of negotiation from opening and sometimes prevent agreement on an issue, even if the deal is beneficial to both parties.

Constructive behaviour

The remedy is quite simple: Listen more than you talk. Now, that’s easier said than done. However, this alone is not enough. Positive listening behaviour must be matched by positive speaking behaviour. When speaking, be sure to use time effectively. One way to do this is to ask open-ended questions for your opponent to explain and develop their case.

Your opponent is not prepared to explain everything to you, nor can he be willing to explain anything about his limit position. He will try to accept that his opening position is his limit. As a result, parties who are in an opening position can easily get into a useless and fruitless conversation. You should not focus too much on the issue on the opening positions. Therefore, as much as possible, let us know your position through questions of clarification and explanation. For more information, you may inadvertently disclose your commitment to your position and the likely routes you are preparing to move forward.

Synthesising is always beneficial, especially when the issues are numerous and complex. It also eliminates confusion and negative arguments. “Let’s summarise what you are asking” is a positive action and helps refocus negotiations. No matter how absurd or ambitious your demands are, it gives the opponent the feeling that they are at least being listened to with respect.

Constructive feedback

Your answer to the other side is what your opponent can do for you. It is to give your opponent information about your position. If you have extracted data from your opponent in the way suggested above, you can better respond to his position and explain yours.

Settings for an argument:

Avoid:

Interrupting, pointing out, attacking, blaming, being too smart, talking too much, shouting, sarcasm, threats.

Practice:

Listening, clarifying questions, summarising issues as a matter of fact.

Asking to justify your case point by point means being attentive to the signs.

Not being committed to your proposal and your explanations.

Testing your commitment to your position-analysing clues about your priorities.

Seeking and giving information – be wary of unintentional signals.

To successfully manage negotiations, it is essential to anticipate and prepare for the argument or dispute stage, where the parties present and discuss their rationale, interests and positions to persuade each other. Avoiding attitudes that can hinder effective communication and instead encourage constructive behaviours is crucial. Doing so allows you to negotiate and discuss more effectively, leading to better outcomes.

Insisting on using objective criteria

The fourth rule of Fisher and Ury’s Harvard Negotiation Project Method is based on the relevance of principled agreements and not giving in to pressure. Negotiations should be arenas for developing good arguments, and negotiators should be open to reason but closed to threats.

In the book Getting Yes. How to negotiate without giving in, Fisher and Ury establish that negotiations aim to reach intelligent and fair agreements, and a good way to achieve this is to turn to established principles, precedents, or community practices. These have an unusual power of attraction when the parties must reach an agreement.

There are two questions to ask at this point: “How do you develop objective criteria?” and second, “How do you use them in negotiation?” On the first question, Fisher and Ury consider that objective criteria need to be independent of what each party wants to achieve and need to be legitimate and practical. These criteria would fulfil an anchoring function in the negotiation, and their legitimacy would be independent of the parties.

Here, it is worth reflecting on what the philosopher Jon Elster has called the civilising force of hypocrisy, where the most powerful party defends arguments with the language of impartiality, where, in fact, it appeals to its own interests. Elster believes that, despite everything, this exercise of turning arguments into the language of fairness favours minorities.

The Harvard Method of Negotiation holds that each issue should be framed as a joint search for an objective criterion. To achieve this impartiality of the method, it is crucial to insist on sharing the search. The classic example is two people who want to share a cake. The unbiased method is for one to split the cake and the other to choose the piece they like best. This guarantees agreement with the final split.

Negotiations tend to be more complex and usually incorporate the price dimension. In the joint search for an objective criterion, a relevant question may be asked about the theory behind the price. In sales and purchases, the price theory is usually based on the various alternative offers and demands on the market, in addition to the specific proposal of the other party. This increases or decreases the parties’ bargaining power and gives arguments for their possible demands.

What is relevant is to build a scope for deliberation with the other party to see the arguments for or against each possibility. Fisher and Ury recommend “reason and be open to reasoning about which principles are more appropriate”. Talking about principles, which underlie positions, has greater persuasive power. Negotiators must be open to reasoned persuasion on the merits of each view.

This approach to reaching intelligent and impartial agreements is an attractive alternative to negotiations based on positions, threats or misinformation. Fisher and Ury argue that “never yield to pressure, only to principle.” The best way to get the other party to do something is not by forcing them, but by convincing them with good arguments in what sense the required action is also in their interest.

From this perspective, negotiations are areas of persuasion that would be based on the combination of two premises: a) Being open to reason; b) Insistence on a solution based on an objective criterion.

This is the last rule of the Harvard Method of Negotiation. Fisher and Ury’s approach allows negotiations to be approached from a constructive and cooperative point of view, where it is considered that reaching a good agreement is a joint task of both parties where the various possibilities should be explored well and on the arguments behind the interests of the parties deliberated. Sometimes, obtaining the yes is not a conquest in enemy territory but a more cooperative task to lay the foundations of mutual benefits.

Francisco de Vitoria, on just war

One of the prominent figures in the Spanish Renaissance was Francisco de Vitoria (1483-1546). He was a Spanish Dominican, renewer of Theology and promoter of the Salamanca School of Natural Law. He is considered the founder of the science of International Law and the notion of human rights. One of the most relevant political philosophers of the 20th century, John Rawls, in his book entitled Law of Peoples and the Idea of Public Reason revisited quotes De Vitoria and, from a liberal conception, adheres to his just war theory. 

Precisely Francisco de Vitoria addresses this classic theme in his essay entitled ” Sobre el derecho de Guerra”/ On the law of war when he asks: “What can be the reason and cause of a just war?” We will address this question below, based on this author, from the perspective of Minerva Strategy Blog.

De Vitoria’s first approach to answering this question states that “diversity of religion is not sufficient cause for a just war.” And he justifies himself with that “even if the faith has been announced to the barbarians with sufficient signs of probability and they have not wanted to accept it, it is not, for that reason, lawful to persecute them with war and strip them of their goods” (Francisco de Vitoria, Sobre los indios, II.15).

Francisco de Vitoria was a professor at the University of Salamanca and his lectures, or relections, on various topics of interest have come down to us to this day. Specifically, the full title of the one dedicated to the notion of just war is entitled: ” Sobre el derecho de guerra de los españoles sobre los bárbaros”/On the law of war of the Spaniards over the barbarians. Contrary to what the black legend on the Spanish colonisation of Latin America claims, the School of Salamanca laid the foundations for human rights and the rules of International Law. And, as has been seen, De Vitoria did not justify war for diversity of religion.  

Another issue addressed by Francisco de Vitoria is that “it is not a just cause of a war to intend to expand dominions” and he argues: “this proposition is too evident to need to be demonstrated. For otherwise there would always be just cause for any of the belligerent wars, and so all would be innocent” (Francisco de Vitoria, Sobre el derecho de guerra, III.11).

The history of mankind contains many examples of rulers who have had expansionist policies beyond their borders.  The results of these offensive wars are part of History and memory. This would not be a justified strategy under current International Law, nor as a cost/benefit analysis in the medium and long term.

Francisco de Vitoria continues “neither is it just cause of a war to the prince’s own glory nor any other particular profit of the prince” and he states that “this proposition is also evident, for the prince must order to the common good of the Republic, both war and peace, and he cannot invest public funds in his own glory, in his own profit, much less expose his subjects to danger. The difference between the legitimate king and a tyrant lies in that the tyrant orders the government to his own interest and profit, while the king orders it to the public good, as Aristotle says” (Francisco de Vitoria, Sobre el derecho de guerra, III.12).

If the ruler wages war for his private benefit, he becomes a tyrant, as Aristotle argued in his work Politics. There the Stagirite philosopher proposed a classic typology of forms of government, where he distinguishes those leaders who promote the common good in their government actions -monarchy, aristocracy, politeia– and those who act for their own benefit or that of their own group -tyranny, oligarchy, democracy-. It is interesting because issues of accountability have been identified ever since the first book written on Political Science, which deals especially with issues of classical democracy in the polis of Athens.

The affirmative answer to the question posed by De Vitoria is the following: “the only just cause for waging war is the injury received” and he affirms that “in addition, offensive war is made to avenge an injury and to reprimand the enemies, as has already been said. But there can be no revenge where there has not preceded an injury and a fault. Therefore the conclusion is evident” (Francisco de Vitoria, Sobre el derecho de guerra, III.13).

Here we get to the heart of Francisco de Vitoria’s argument: defensive war, self-defence, is justified. Bobbio affirms: “it is lawful to repel violence with violence.” The Italian author asks himself: “But does the strategy of atomic war still allow us to maintain the distinction between offensive and defensive war?” (Norberto Bobbio, El problema de la guerra y las vías de la paz). De Vitoria did not speak of preventive wars, but in the answer to Bobbio it is worth analising whether a preventive war is justified in the face of a relevant threat. Situations of strategic funanbulism in scenarios of nuclear deterrence are placed in this risk analysis.

Francisco de Vitoria adds: “an injury of any gravity is not enough to make war”. He clarifies that “this proposition is proved because it is not even lawful to impose such serious penalties as death, exile or confiscation of goods on one’s own subjects for any fault. Now, since all the things that are done in war are grave and even atrocious, such as slaughter, arson, devastation, it is not lawful to punish with war those who have committed slight offences, since the measure of punishment must be in accordance with the gravity of the crime” (Francisco de Vitoria, Sobre el derecho de guerra, III.14).

The key to self-defence is proportionality. Thomas Aquinas already defended it by “moderating the defence according to the needs of the threatened security” (Thomas Aquinas, Suma Theologica, II-II, q. 64,a. 7, c). It is in that passage of the Theological Summa, where the theory of the double effect is formulated: an act has two effects, one intentional -preserving life- and another not, which would be incidental -the death of the aggressor-. The key for Thomas Aquinas is that the act be proportionate to its end.

An application of the doctrine of double effect is proposed by Rawls, when he states that civilian casualties are prohibited except insofar as they are the indirect and unintended result of a legitimate attack against a military target (Rawls, Law of Peoples and the Idea of Public Reason revisited).

The just war theory in Francisco de Vitoria is a classic in the reflection on public affairs. As a good classic, it allows more current re-readings and, as Italo Calvino said, it can be conceived as a talisman, a compass on which to orient oneself when approaching the territories of peace and war.

Inventing options for mutual benefit

In the third rule of the Harvard Negotiation Method, Fisher and Ury propose, on the one hand, exploring the various possibilities that may arise and, on the other hand, making the common interests explicit. The authors’ first piece of advice is to “expand the pie before dividing it”.

In the face of this rule that demands “inventing options for mutual benefit,” some obstacles in the form of attitudes or inertia inhibit the creative process of inventing multiple options. The first is premature judgment when negotiators with tunnel vision focus on specific options. The second is the search for a single answer, where it is taken for granted that each situation has only one possible solution. The third is to assume that the pie is fixed and the only variable is to share it when there may be situations where the pie increases to benefit both parties. The fourth is to think that “solving your problem is your problem”, where the issue is that the negotiation is approached from a competitive view between the parties and the cooperative aspects are forgotten. It is possible to increase mutual benefit from the cooperative approach by analysing the various options.

Faced with this scenario, in which the various possibilities of negotiations are not taken advantage of, Fisher and Ury propose multiple solutions. The main approach is to consider that negotiations have a creative component where the act of inventing options has to be separated from the act of judging them. This can be achieved by brainstorming, a process where the parties meet and openly and uninhibitedly put forward all possible options. It is a process where creativity counts and where there is a rule of non-criticism. Afterwards, it is necessary to evaluate and decide whether to incorporate the multiple options into the negotiation.

By following these steps, negotiation is transformed into a creative and cooperative process of finding the best mutually beneficial solutions. Ways must be invented to make the decision easy for both parties. It is sometimes forgotten that negotiations occur because the parties have common interests. Most of the time, these common interests remain implicit. The Harvard Negotiation Method states that these common interests must be made explicit and insists upon as a productive basis for negotiation.

On the other hand, the differences in interests of the parties have great strategic power for the smooth course of negotiations. In particular, there may be situations where an issue is of great interest to you and of little importance to the other party or vice versa. This can lead to a compromise agreement. It is precisely the exploration of differing interests that can be the key to a successful negotiation.

Negotiations occur in scenarios of cooperation and conflict between human beings. One party wants something from the other and vice versa. One way to approach negotiation is as a competition between adversaries who are jockeying for positions. Fisher and Ury propose a method for seeking intelligent agreements through a creative process of inventing multiple options for mutual benefit. Parties may have partly common and partly divergent interests. Insisting on shared interests and creatively managing differing interests is the best way to find an agreement that is best for both parties. Negotiating well also means being creative.

Kissinger, the global negotiator

From John F. Kennedy until recently, every U.S. president has sought the counsel of Henry Kissinger (1923-2023), along with CEOs and political leaders from around the world. His views on foreign policy, State affairs, and world order have been much discussed. However, his remarkable world record as a negotiator has largely gone unnoticed, leading James K. Sebenius, Nicholas Burns and Robert H. Mnookin to author the book Kissinger, the Negotiator. Lessons from Dealmaking at the Highest Level. Sebenius is a professor with the Harvard Negotiation Project and wrote the book 3-d Negotiation: Powerful Tools to Change the Game in Your Most Important Deals.

Some negotiators prefer strategy and the big picture, whilst others focus on the emotion and empathy, and specific points. Few combine both positions. Sebenius et al. examine Kissinger’s uniquely developed ability to focus on a broader perspective. They characterise his approach as strategic, realistic, prone to change the game, and agile in multi-party situations.

Many people believe that negotiation is simply bargaining; it is not unlike a bazaar, where one person makes an extremely high offer and the counterpart keeps offering the same. Concessions are made gradually with the goal of bringing the parties to a final agreement. Kissinger characterised and criticised this standard approach to negotiation early in his career and later this was reflected in his negotiations: There is no point in moderating offers if the agreement is normally between two starting positions. Effective negotiation would propose a much more radical starting point than one is willing to accept. The more outrageous the initial offer, the clearer the idea of what one “really” wants to be considered a compromise.

Kissinger advised convincing the other side of one’s own underlying objectives and interests rather than exaggerating tactics. He argued that failure to do so hinders effective negotiation. In general negotiations, Kissinger expressed, “I made a considerable effort to leave no doubt of our fundamental approach. Only romantics think they can prevail in a negotiation by trickery: only pedants believe in the advantage of obfuscation. In a society of sovereign states, an agreement will only hold if all parties consider it in their interest. They must have  a sense of participation in the result. The art of diplomacy is not to outsmart the other side, but to convince it either of  common interest or of penalties if an impasse continues”. He continued “The wise diplomat understands that he cannot afford to trick his opponent; in the long run a reputation for reliability and fairness is an important assets. The same negotiators meet over and over again: their ability to deal with one another is undermined if a diplomat acquires a reputation of evasion or duplicity”. 

It is evident that the realist in Henry Kissinger values actions and results rather than words: “Statesmen value the steadiness and reliability in a partner, not the restless quest for even-new magic formulas”.  This brings us closer to a virtuous model, to maintain stable relationships over time, based on trust and reputation, than the Machiavellian model of short-term results.

Analysing the negotiations in which Kissinger was involved, the best contribution to more than 130 meetings between China and the United States in Warsaw was when an ambiguous and elegant formula that both parties could live with was achieved. This enabled the United States and China to cooperate on many other relevant issues. The crucial sentence is as follows:

“The United States acknowledges that all Chinese on either sides of the Taiwan Straits maintain that there is but one China. The United States Government does not challenge that position.”

Just words? Hardly. There have been countless examples of such creatively ambiguous formulations of Kissinger negotiations. The common denominator is always face-saving formulations, but they result in both sides declaring victory and being able to move forward from previous deadlocks.

In some cases, however, no word of the agreement may be too costly to pronounce or formalise in writing. These are tacit agreements. However, the constructively proposed agreement may be unacceptable if enforced.  

These tacit agreements, in general, can be useful when there is a group of stakeholders, or a powerful audience, internal or external, that opposes a formal agreement and can impose costs on a negotiator who agrees to them.  Without many of the possible costs, a tacit agreement can be based on the desired content, irrespective of its form.

Constructive ambiguity and tacit agreements have a privileged place in the tactical toolkit of Kissinger, the global negotiator.

Focus on interest, not positions

The second rule of the Harvard Negotiation Method states: focus on interests, not positions. We often find ourselves in situations that become endless, where the parties argue hard about one or two variables. Each party sets its positions there, and each concession has been made after hard work. There may be more rigid or flexible negotiators, but Fisher and Ury propose that the approach of these negotiations is not the most appropriate.

The authors of Getting to Yes. How to negotiate without giving in consider that rather than focusing the negotiations on positions, it is smarter to analyse the parties’ interests and look for a solution that satisfies both parties. Human beings have diverse interests that are not usually on the surface of the terms of a negotiation. In addition, the interests of different people are multiple and diverse, which can be especially relevant in negotiations.

The same object can have a very different utility depending on each person’s interests. Although negotiations usually stay on the surface, in the discussion from positions that seem irreconcilable, reluctant to make mutual concessions. The key is to stop and analyse our interests in that negotiation and, especially, what the other party’s interests are. Here, you should pay attention to all the torrents of information we can obtain from issues that are unimportant, such as informal conversations, body language, impartial data checks, etc.

The Harvard method believes that negotiation should focus on interests, and the way to bring them out is to ask the question, “Why?” This forces each side to justify its points of view. This effort can bear fruit if, in this way, the interests underlying the positions held are ultimately appealed to. Moreover, the negotiation must focus on those interests to be an intelligent agreement.

In the second instance, Fisher and Ury propose to ask: “Why not?”. Here, the parties must justify why their choices are better than the other party’s and in what way. They must develop the convincing power of their proposals and try to show their advantages. This question also serves to explore the interests of each party.

Negotiation occurs because of common interests, although there may also be divergent ones. When undertaking a negotiation, it is essential to know the other party’s true interests. It is also relevant when making an offer to analyse what it entails for you and whether it meets your interests. Sometimes, the solution can reasonably meet the interests of both parties. But when making an offer, the need to save face with the other party must always be present. In other words, it helps to justify the final result.

If the agreements are very disproportionate, they may not be stable over time. This would mean they do not reflect to one of the interests of one of the parties.

In this Harvard Method rule, Fisher and Ury advise, “Make a list of interests”. The usual focus of negotiations is often placed on seeking concessions on one variable, usually monetary. But we lose sight of the interests, which may be diverse and may require different accommodations. It would be interesting to explore the underlying interests in the negotiations to make them explicit because, on many occasions, the shared and divergent interests may show that we are facing an interdependent decision: to get something, we need the other party, and the other party needs us to get something, often something different.

Human beings have diverse interests, and we seek to satisfy them through our life plan. Negotiations, which can be professional negotiations that also encompass everyday life, are a way to find cooperative agreements with others, and success can come from knowing how to explore mutual and divergent interests. It is a way to focus negotiations on interests and reach intelligent agreements.

Thomas More, Comfort against Tribulation

In 1534, Thomas More (1478-1535), well-known author of the work Utopia and defender of Catholic orthodoxy against Luther and other writers, was captured in the Tower of London by the Thames after refusing the oath that King Henry VIII demanded from his subjects to grant him the title of Supreme Head of the Church of England. After 14 months, on  1 July 1535, he was put on trial and sentenced to death, and executed in the morning of 6 July.

Thomas More wrote several works during those months, including A Dialogue on Comfort against Tribulation, in which he stands firm in his convictions that have led him to the Tower of London, where he has lost his position and may lose his life. It is a book that makes many religious references and can be seen as an exercise in affirmation in the face of hard times. It also provides recommendations and great wisdom, which will be analysed below with the focus of the Minerva Strategy.

“But this arrow of pride, fly it never so high in the clouds, and be the man that it carrieth up so high never so joyful thereof… yet let him remember… that be this arrow never so light, it hath yet a heavy iron head… and therefore, fly it never so high… down must it needs come and on the ground must it light… and falleth, sometimes, not in a very clean place… but the pride turneth into rebuke and shame, and there is then all the glory gone.” (More, Thomas. A Dialogue of Comfort against Tribulation, II.16).

The Spanish Royal Academy of Language defines pride as “haughtiness and disordered appetite to be preferred to others”, while it can also be defined as “satisfaction and conceit by the contemplation of one’s own prerogatives with contempt for others”. Pride is a bad strategy because it can ruin interpersonal relationships, cause a lack of empathy and make it difficult to learn.

In some contexts and sectors, this human attitude is encouraged that avoids putting oneself in the other’s place and is the opposite of humility. It can be considered an obstacle to the good management of emotions and good relationships with others.

“Hard is it, Cousin, in many manner things, to bid or forbid, affirm or deny, reprove or allow, a matter nakedly proposed and put forth; or precisely to say “This thing is good,” or “This thing is naught,” without consideration of the circumstances.” (More, Thomas. A Dialogue of Comfort against Tribulation, II.17).

This recalls Ortega y Gasset’s famous phrase “Yo soy yo y mi circunstancia” (I am I and my circumstance) found in his work Meditaciones del Quijote – Meditations on the Quijote, published in 1914. The complete sentence, which is often quoted incompletely, is: “I am I and my circumstance, and if I do not save her, I do not save myself”. With this phrase, Ortega means that we cannot achieve fulfillment as individuals if we do not engage with our environment and strive to improve it.


In the case of Thomas More, it refers to the level of ethics and Law, which must take into account the circumstances of the particular case. This is related to the dichotomy between universalism and particularism, as well as the importance of the possibility that general solutions can be reinterpreted according to new circumstances.

“We shall yet, Cousin, consider in these outward “goods of fortune,”  as richesse… good name… honest estimation… honorable fame, and authority— in all these things we shall, I say, consider… that either we love them and set by them as things commodious unto us for the state and condition of this present life… or else as things that we purpose by the good use thereof to make them matter of our merit, with God’s help, in the life after to come. Let us, then, first consider them as things set by and beloved for the pleasure and commodity of them for this present life.” (More, Thomas. A Dialogue of Comfort against Tribulation, III.9).

In today’s digital age, it is possible to reinterpret the good name, honour and honourable fame. It is necessary to reconceptualise the terms private, public and intimate. However, it seems that slander, disinformation, rumors and fake news are gaining ground. The worst thing is that there seems to be no standards for verifying news and everything goes.More than ever, Philosophy is necessary

“And into this pleasant frenzy of much foolish vainglory be there some men brought sometimes by such as themselves do, in a manner, hire to flatter them, and would not be content if a man should do otherwise…but would be right angry, not only if a man told them truth when they do naught indeed… but also if they praise it but slenderly.” (More, Thomas. A Dialogue of Comfort against Tribulation, III.10).

It is common to find professional sycophants who constantly praise everything they receive from their superiors. A minimum level of politeness and courtesy is granted to avoid ungratefulness. However, in professional contexts, it is good to be able to express critical views. If one is a boss, it is important to empower others in a positive way and never denigrate or humiliate them.

“Let us now consider in like wise what great worldly wealth ariseth unto men by great offices, rooms, and authority—to those worldly-disposed people, I say, that desire them for no better purpose” (More, Thomas. A Dialogue of Comfort against Tribulation, III.11)

Thomas More played significant roles in England during the reign of Henry VIII, who  chose to establish the Church of England and separate from the Catholic Church for his own benefit. Thomas More chose to remain true to his beliefs, leave his offices and disobey the sovereign. More’s hierarchy of values and the importance he places on office explain this.

“The greatest grief that is in bondage or captivity is this, as I trow: that we be forced to do such labor as with our good will we would not. But then against that grief Seneca teacheth us a good remedy: “Semper da operam ne quid invitus facias”—“Endeavor thyself evermore that thou do nothing against thy will. . . . But that thing that we see we shall needs do… let us use always… to put our good will thereto” (More, Thomas. A Dialogue of Comfort against Tribulation, III.18).This point is fundamental in Thomas More’s tragedy, but it can also have a significant impact in professional and personal contexts. On the one hand, extremely unjust actions can be opposed, which is a classic theme in the Philosophy of Law. Nevertheless, there are many things that we do not want to do, and paradoxically to his story, Moro advises that we put our good will to do them. It is a way to overcome tribulation.