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.

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.

Separate people from the problem

The Harvard Negotiation Project is a practice-oriented academic initiative at Harvard University that looks to provide negotiation resources for practitioners. The star of this project is Fisher and Ury’s book Getting to Yes. Negotiating an agreement without giving in. This book offers a negotiation method with concrete rules from an alternative approach, focusing on critical aspects of any negotiation.      

The first rule of this method is to separate people from the problem. In many negotiations, human relationships, emotions, and cultural differences are relevant to understanding how events unfold. Sometimes, these elements are more decisive for the outcome than the actual subject matter of the negotiation. Sometimes, even people are the problem that prevents the negotiation process from proceeding or makes it very difficult.   

The role of emotions in negotiations is a variable to be considered and can be of crucial relevance. Fisher and Ury highlight that negotiators are, first and foremost, people, which will inevitably have implications on the process, for example, when handling their emotions or the cultural or social differences that may arise.  

Sometimes, the best way to manage a negotiation involving emotional issues is to put them politely out in the open. From there, an honest relationship can be built that deals with the actual subject of the negotiation. On other occasions, some people make concessions just to maintain their good personal relationship with the other party. In such cases, the object of negotiating the relationship between the parties must be clearly defined to affirm the legitimacy of this separation without affecting the personal relationship. Otherwise, one party may think that the other is taking advantage.

Another piece of advice from Fisher and Ury is to put yourself in the other person’s shoes. This is a crucial element of negotiations because we learn from imagining ourselves in the circumstances in which the other party is placed, which allows us to predict their future actions. This exercise is particularly suitable for situations with differences between the parties. These differences will play a role – implicitly or explicitly – in the negotiations.  

One of the implications of this exercise of putting oneself in the other’s shoes is to analyse how the other party saves face. That is, whether the offer or the terms of the negotiation allow the other party a good solution compatible with their values or reasonable expectations. The parties must explain and justify the result obtained from the negotiation. An intelligent negotiator must, therefore, be concerned about how the other party saves face, and this implies having internalised their point of view.      

Another perspective offered by Fisher and Ury is to consider the concerns of the other party. The parties have different interests, concerns and priorities; perhaps there is room for negotiation. Moreover, exploring these differences may be yield benefit. It is necessary to address the other party’s concerns, even if they are not directly related to the main object of negotiation.  

Separating people from the problem is a key principle in negotiations. It involves recognising that we are human beings and that there are aspects of the relationships between the parties that can influence the outcome. People should not be the problem but part of the solution.