The Shadow Negotiation and the Interest-Based Approach at Kaiser Permanente

As interesting and significant as the Kaiser Permanente case is in and of itself, there were many parallel negotiations that took place just below the surface of the overt negotiations. The author focuses on this "shadow negotiation," exploring a series of strategic moves that took place in the case, enabling the parties to craft their negotiation process. These shadow negotiations involved positioning moves, process moves, power moves, and appreciative moves. The parallel shadow negotiation was a significant factor in the success of the Kaiser Permanente negotiations.     

The Reputational Advantages of Demonstrating Trustworthiness: Using the Reputation Index with Law Students

Lawyers should care about their reputations. But exactly what sort of reputation should lawyers seek to establish and maintain in the largely nontransparent context of legal negotiation? And even if a lawyer has developed a reputation as a negotiator, how will he/she know what it is and how it came to be? I force my students to grapple with these questions by incorporating the issues of reputation and reputation development into my negotiation/mediation course. I introduced this innovation at the same time that I decided to increase my focus on developing students' skills in distributive (or value‐claiming) negotiation. Although legal negotiation certainly offers frequent opportunities for the creation of integrative joint and individual gains, the process will almost inevitably involve distribution. The pie, once baked, must be cut. As a result, I now base a portion of my students' final grade on the objective results they achieve in two negotiation simulations. Two dangers of this assessment choice are that it can encourage students to focus only on the numbers and, even worse, engage in “sharp practice”— an extreme form of hard bargaining that tests ethical boundaries — in order to achieve the best short‐term distributive outcomes. Of course, neither a quantitative focus nor sharp practice is synonymous with a distributive approach to negotiation. Nonetheless, to counterbalance the temptations posed by the focus on, and ranking of, objective results, I also base part of students' final grades on their scores on a “Reputation Index.” These scores are based on students' nominations of their peers, accompanied by explanatory comments. This article describes the Reputation Index and how I use it. It also explores the empirical support for the validity of the Reputation Index as a tool for simulating the development and assessment of lawyers' reputations in the “real world.” To that end, the article considers research regarding the bases for lawyers' perceptions of effectiveness in legal negotiation, the sometimes counterintuitive distinction between negotiation “approach” and negotiation “style,” and the relationships among perceptions of negotiation style, procedural justice, trustworthiness, and reputation.     

Negotiating in a Complex World

Drawing on the literatures on negotiation and conflict resolution as well as research on international diplomacy, the author proposes a framework for understanding complexity in real-world negotiations. Rejecting models of the process that are simplistic, sterile, or static, he argues that complexity is inherent in negotiation. In ten propositions, he lays out key dimensions of complexity and ways that skilled negotiators can manage it. The propositions focus attention on the ways negotiators create and claim value, shape perceptions and learn, work within structure and shape the structure, negotiate and mediate, link and de-link negotiations, create momentum and engineer impasses, and work outside and inside. The author also highlights the importance of organizational learning in negotiation, noting that most negotiators manage multiple negotiations in parallel, and most organizations have many negotiators doing similar things.     

Bargaining When the Future of an Industry Is at Stake: Lessons from UAW–Ford Collective Bargaining Negotiations

The 2007 American automobile industry labor negotiations involved fundamental challenges for labor and management, including a historic shift of responsibility in the management of retiree health care, a need for new approaches to core employment security issues, identification of ways to create new unionized jobs in the industry, and a joint commitment to the competitive viability of U.S. operations. Less visible, but no less important in the United Auto Workers–Ford case, has been unprecedented levels of information sharing and unique innovations in the bargaining process designed to enable problem solving even when tough issues were on the table. More than 300 people were directly involved in the negotiations, serving at the main table and on twenty‐four subcommittees. This case study covers the context for the negotiations, key events leading up to the bargaining, a unique process of “bargaining over how to bargain,” the actual negotiation process, and the results achieved. Implications are generalizable to the broader concept of pattern bargaining and many other types of negotiations when transformation is on the table.     

The Clandestine Political Economy of War and Peace in Bosnia

Most contemporary intrastate military conflicts have a criminalized dimension: In various ways and to varying degrees they use smuggling networks and criminal actors to create and sustain the material basis for warfare. Despite its importance, the criminalized side of intrastate war and its legacy for postwar reconstruction is not a central focus of analysis in most scholarly accounts of armed conflict. A detailed examination of the Bosnian conflict illustrates the explanatory usefulness of a "bottom up," clandestine political economy approach to the study of war and post-war reconstruction. Drawing on interviews with former military leaders, local and international officials, and in-country observers, I argue that the outbreak, persistence, termination, and aftermath of the 1992–1995 war cannot be explained without taking into account the critical role of smuggling practices and quasi-private criminal combatants. The article suggests the need for greater bridging and broadening of the study of security, political economy, and crime.     

The value of decision analysis in mediation practice

Conclusion To be constructive and effective within the mediation process, a mediator's case evaluation must be carefully derived and reasoned, persuasively articulated, and tactfully delivered. A decision analytic approach allows the mediator to structure and present an intellectually rigorous evaluation while minimizing the risk of perceived loss of neutrality. This approach can enhance the mediator's ability to unlock or redirect participants' emotional and professional investment in litigation and to remove personal and organizational incentives for entrenchment in adversarial and costly disputes.In a particularly complex case, using computer software for decision analysis offers added value by facilitating discussion of the evaluative analysis among additional decision makers who were not at the table. It provides a neutral language and method with which the mediator can probe and challenge the parties' stated positions and tolerance for risk. By helping people focus more clearly and dispassionately on the choices they face, a decision analytic approach and its presentation on computer software should enable them to achieve intelligent settlements.She also specializes in the mediation of legal disputes and the design of curricula in negotiation and mediation practice.     

Supplemental Joint Brainstorming: Navigating Past the Perils of Traditional Bargaining

Though decision makers in many domains use bargaining as their primary approach to negotiation, it has limited efficacy in multi-issue, nonquantifiable transactions. Nevertheless, many negotiators use back-and-forth bargaining rather than other approaches. The author explicates reasons for this choice and describes supplemental joint brainstorming, an innovative strategy to supplement the institutionally-entrenched bargaining approach to negotiation with interest-based negotiation.     

Chen''s Scrappiing of "NUC" and U.S. Predicament

On February 27, 2006, Chen Shuibian announced his decision to cease the operation of the "National Unification Council (NUC) and the application of its guidelines," which further increased the risk of "Taiwan independence." Chen's campaign for "Taiwan independence," which in essence was an attempt to change the status quo, thus gravely damaging the cross-strait relations. The next day,the White House and U. S. State Department made a separate response. On the one hand, they argued that Chen didn't change the status quo as he only "freezed" instead of "abolishing" the "NUC"and its guidelines. On the other hand, they urged the leaders of mainland China and the Taiwan authorities to go back to the negotiation table. ① Such understatement and seeming evenhandedness by the U.S. shows its acquiescence to the reality of Chen's abolition of the"NUC," and its limited ability to control Chen's activities for "Taiwan independence." In the coming two years, Washington's current Taiwan policy will hardly continue to work, as Chen will steadily promote the modification of "The Constitution" and the "legal independence." The U. S. must make an option between allowing the "Taiwan independence" forces to impinge on its "one-China policy' and clearly suppressing the movement for "Taiwan independence."     

Using Tomorrow's Headlines for Today's Training: Creating Pseudo-reality in Conflict Resolution Simulation Games

This article introduces the "pseudo-reality" method of constructing and conducting conflict resolution training workshops. This method focuses on creating a backdrop against which participants engage in building negotiation and mediation skills using real-life events and facts — but only to the extent that these events and facts promote the learning process. By creating pseudo-reality, trainers can overcome strong preconceptions or biases that can interfere with the learning process while at the same time preserving the advantages of working within a familiar, realistic environment. This method is meant to be used when the main goal of a workshop is skill building rather than imparting substantive knowledge of a specific conflict. The article illustrates this method by describing its use at a workshop conducted recently in Cyprus, in which the Israeli–Palestinian conflict served as a backdrop for conflict resolution skill building. Finally, the article describes a model designed to help conflict resolution trainers create pseudo-reality in their own workshops.     

Legal Issues and Human Rights Dimensions of the Israeli Settlements Issue: Victims and Spoilers

The presenters on this panel discussed several important additional requirements for the successful implementation of a two-state solution that involves significant relocation of settlers. These requirements include balancing rights among different groups, minimizing the impact of "spoilers," and providing political compensation to settlers. Presenters also highlighted the relevance of elements of classic negotiation theory to this issue, including thinking creatively about substance and paying appropriate attention to process.     

Empowering Students to Create and Claim Value through the Thomas–Kilmann Conflict Mode Instrument

In a world of problem‐solving lawyering, principled negotiation, and integrative bargaining, to describe a negotiation as “distributional” may strike some as heretical. Still, we disserve our students if we ignore distributional bargaining altogether. Unfortunately, many law students who are drawn to negotiation classes bring with them a fundamental discomfort with claiming value. Contrary to the stereotypes that attribute aggression and “sharp practices” to lawyers, many law students struggle to become more assertive. The Thomas–Kilmann Conflict Mode Instrument (TKI) is one tool that I have found can help raise students' awareness of, and comfort with, the reflexive responses to conflict that can impede their attempts to claim as well as create value in negotiation. The insights students gain from taking the TKI can be quickly put to use in the next negotiation role play. Although it may help students realize their dominant response to conflict, the TKI highlights that no single approach to negotiation is always best. Thus, the TKI can both encourage the reticent to claim more value in negotiation and suppress the seemingly insatiable appetites for value claiming that drive other students. When administering the TKI, I encourage students to learn at least four major lessons:

• 1 A negotiator has a choice in resolving the dilemma between value claiming and value creating. We are not just stuck with our reflexes.
• 2 Still, it is good to know what our reflexive response to conflict is likely to be so that we are more mindful of the choices as we make them.
• 3 Departing from reflexes requires energy: preparation, planning, mindfulness, and conscious effort.
• 4 Adaptability is desirable. A well‐integrated negotiator might move from one TKI “type” to another as a negotiation progresses.

In this article, I seek to give a very brief overview of the ways I have used the TKI to convey these lessons, increasing students' comfort with, and management of, value claiming. To this end, the article will describe the TKI, explain how I administer and debrief the students' encounter with it, and point out some potential pitfalls of this process.     

Teaching Students to Shape the Game: Negotiation Architecture and the Design of Manageably Dynamic Simulations

Although important work is being done in the emerging field of negotiation architecture and "shaping the game," little of it has found its way into the classroom. Simulation exercises are among the most powerful pedagogical tools available to negotiation educators, but most existing exercises have static architectures in the form of fixed parties, issues, and interests. This article summarizes existing research on negotiation design and proposes a framework for designing "manageably dynamic" exercises that can be used to teach key game-shaping concepts. The framework is illustrated through an in-depth discussion of an exercise based on the negotiations to end the civil war in El Salvador.     

Negotiation: The Chinese Concept

It is no understatement to say that negotiation activity has skyrocketed in China in recent years; however, these negotiations are frequently unsatisfactory. Part of the reason for this lack of success is that Chinese people have a conception of negotiation that is fundamentally different from that of people in the West. Based on extensive interviews with Chinese and non-Chinese negotiators over a period of five years, the author explains the Chinese approach by using two metaphors: mobile warfare and the joint quest. Understanding this approach has significant implications for negotiation practice.     

Civil society perspectives on EU–ASIA free trade agreements

This paper focuses on the positions taken by civil society organisations that actively campaign on trade policies. Trade campaigners oppose the neo-liberal approach to trade and development and advocate a much more gradual and prudent approach to trade liberalisation. They stress that trade liberalisation will only lead to sustainable development if it respects environmental and social concerns, including the gender dimension of trade; if trade liberalisation is properly owned, prepared and sequenced; adapted to the institutional and economic needs and capacities of the countries and people involved, and accompanied by all necessary flanking measures. Trade campaigners stress the need to maintain policy space and the necessary governance instruments to react to changing circumstances and address social and environmental concerns. They denounce the lack of information, consultation and participation provided by governments in trade policy formulation and negotiations and they campaign to raise awareness and create more room for debate and participation. This article builds on a paper presented on 19-20 June 2008 at an UNU-CRIS Work Shop in Bruges on “Deep Integration and North-South Free Trade Agreements. EU Strategy for a Global Economy”.

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World Championship in Negotiation? The Role of Competitions in Negotiation Pedagogy

The last decade has seen the emergence of several new negotiation competitions around the world. We think the two major drivers of this development are a general trend toward the increasing internationalization of higher education and a recognition of the specific benefits of competitions for negotiation pedagogy. These benefits include: the high level of student commitment generated by participation in a competition, which enhances the quality of negotiation; the opportunity that the competitions give students to experience authentic cultural diversity; and the networking opportunities for students and instructors that the competitions create. This article focuses on the role that negotiation competitions can play in negotiation pedagogy. We first present an overview of the currently most important international negotiation competitions. This is followed by an outline of the specific benefits of negotiation competitions for pedagogy. We then take a closer look at the organization and outcome of negotiation competitions and discuss the opportunities for their development and growth.     

When Negotiations Become Routine: Not Reinventing the Wheel While Thinking Outside the Box

In this article, we seek to apply the insights of recent research on routine to the context of repeated negotiations. To demonstrate the link between both concepts, we introduce an analytical framework in which we identify different negotiation situations in which routine can develop. We distinguish two dimensions of the negotiation process: a problem-solving dimension and a communication dimension. Our framework for analyzing the role of routine in negotiation is built around these two dimensions. We define those skills that we argue in repeated negotiations can help negotiators manage particular kinds of negotiations depending on the level and type of routinization that type of negotiation involves. Moreover, we demonstrate that our framework is inherently dynamic, which we illustrate with simplified business examples.     

Youth,culture, negotiation and politics

The following paper was motivated by a series of seminars held in 2004 at University of Bayreuth on the Harvard Negotiation Concept of Roger Fisher, William Ury and Bruce Patton (R. Fisher, W. Ury, Getting to Yes: Negotiating Agreement without giving in, 2nd edn, Penguin Books, New York 1991). When comparing the advices of the Harvard Negotiation Concept with my own negotiation experiences in youth politics, I realized that the Harvard Concept is rather useless in many forms of intercultural negotiations. It does not sufficiently address how much culture influences our perceptions of negotiations. Politics is not the only, but surely the most prominent field of intercultural negotiation. Therefore my focus of research was: does culture influence politics? In the first chapter, I describe the reason for the science of negotiation, the validity of universal negotiation concepts, the definition of culture and the existing research on intercultural negotiations. In the second chapter, I discuss concrete examples of how culture allegedly influences politics, such as in International Youth Politics and in the ASEM process. I also give some results from a survey that I carried out in 2004 (The extended version of the paper can be found at my webpage at http://www.karsten-wenzlaff.de). All examples cast a doubt on whether culture really influences politics.     

Interpretive Filters: Social Cognition and the Impact of Turning Points in Negotiation

A number of studies have shown that certain events that occur during a negotiation can alter its course. Referred to as "turning points," these events are precipitated by actions taken either outside or inside the talks that have consequences for outcomes. In this article, we report the results of two experiments designed to examine the impacts of two types of precipitating actions, external and internal. In the first experiment, which focused on external actions, we found that crises — as opposed to breakthroughs — produced more movement in negotiations in which parties viewed the social climate positively (high trust, low power). We found that parties achieved less movement in negative social climates (low trust, high power).
In the second experiment, which focused on internal actions, we found that cooperative precipitants (factors inducing change) were more likely to occur when parties negotiated in the context of positive social climates. Negotiation outcomes were also influenced by the climate: we found better individual outcomes for negotiations that occurred in positive climates (high trust, cooperative orientations). Inboth experiments, the social climate of the negotiation moderated the effects of precipitating factors on negotiation outcomes. Perceptions of trust and power filter the way negotiators interpret actions that occur outside or are taken inside a negotiation, which can lead to agreements or impasses.     

Managing institutional change in the science and technology systems of Eastern Europe and East Africa

This paper is a comparative study of institutional change and efforts to create networks and linkages in the science and technology (S&T) systems of Poland and Tanzania at a time of market-led economic reform. It argues that, in both countries, S&T has been hampered by linear approaches to technology transfer and that future efforts should focus on non-linear approaches involving multiple actors. Discussion focuses on a consideration of organisational goals and agendas, the resource base of different organisations, and fostering organisational capacities to learn, adapt, and change.