Managing Complex Negotiations: A Matter of Process Design

1. Designing the process of the negotiations. The word "process" refers to how one goes about negotiating to get what one wants.
2. Preparing a strategy for the substance of the negotiations.  The word "substance" refers to one's desired hopes, outcomes, and goals in coming to the negotiation table in the first place. 

This article will focus on process design for two reasons:

1. Most people focus on what they want in the negotiation, the substance of the negotiation and forget how critical process is to one's ability to achieve substantive goals.
2. The tendency is to accept what ever process is given or what's been traditionally done in the past, rather than asking what process will maximize our ability to achieve our goals?

This article assumes that when facing complex negotiations the individual or organization leading the negotiations will assemble a team.  The first step in process design is to be clear about the goals for this negotiation, goals for the outcomes of the negotiation and goals for the relationships with the parties at the table.  The process one designs flows from ones goals for the negotiation.

From Selection

Selecting the right team is critical and is often fraught with politics inside large organizations.  Before selecting a team, identify the criteria by which you will choose team members.  Ask, given our goals for this negotiation, what criteria should we use to select team members? 

Establishing criteria for the selection of team members before focusing on individuals increases the possibility of selecting the right individuals for the right reasons.  It also allows you to explain to others the choices that have been made. Some examples of questions are:

1. What expertise will we need? 
2. What experience do we need? 
3. What relationships and history do we need? 
4. What data and research will be needed? 
5. What message will the other parties be likely to draw from the composition of our team? 
6. What authority and clout do we need to bring to the negotiating table in order to be credible? 
7. Who is available?
8. Do we need all of these people at the table all of the time, or only at certain critical points in the negotiation? 

It is critically important that one of the criteria you use in selecting your team is their adaptive skills.  Adaptive skills are people skills needed when the problem is complex, the solution is not clear and one must engage the people with the problem, in order to solve the problem.  Adaptive skills come from emotional intelligence, the ability to manage our relationships with others and with ourselves.

Team Development

Once you've assembled your team, establish team roles, responsibilities, decision-making protocols and communication channels.  Make sure your team understands the goals for the negotiations and who the decision-makers are and what the internal chain of command is.  Establish norms and ground rules for the team's behavior at and away from the negotiating table. 

Other critical process issues to clarify with your team include, who and how do we inform critical decision-makers and constituents who aren't at the table on the status of the negotiations.  What information gets shared with whom, how often and what should be kept confidential?   

How will we as a team deal with the media or questions asked by others who aren't at the table.  Answering these process questions before the team starts negotiating, maximizes your chances for a successful team and successful results.

The next step in process design is developing and gaining internal alignment on both the process and the strategy for the upcoming negotiations.  Begin by mapping with your team, all of the key parties to the negotiations, those at the table and those who are not at the table but will influence the outcome of the negotiations. 

The map should include key internal parties and key external parties.  It is important to include parties who aren't formally part of the negotiations who can impact your outcomes, parties like the media, the courts, public opinion shapers, etc. 

Once those individuals and groups have been mapped out, the team must ask and answer questions.  Some examples are:

1. Who should be at the table, when?
2. Who should not be at the table and why?
3. Who can help or hurt our goals at the negotiation table?
4. What if any relationships and history do we have with the other parties to this negotiation?
5. What key issues must be resolved in order to get an agreement?
6. In what sequence should we consider these issues?
7. What ground rules should govern these negotiations?

Sometimes, depending on the nature of the negotiations, you might not want decision-makers at the table.  In other circumstances it will be imperative that those with the most technical expertise be at the negotiating table at key points in the negotiations.  Deciding who should be at the table when is a critical part of managing complex negotiations.  The negotiation process manager needs to ask his/her team, who will not and who should not be at the table and why.

One other key party the negotiation process manager must identify is his/her counterpart on the other team.  Designing the negotiation process is not a unilateral process. 

The process manager on your team must actually negotiate about the process, the agenda, who's at the table, what ground rules govern these negotiations, where we should meet, the issues that will need to be discussed, in what sequence, etc. prior to the parties coming to the table, or as a first order of business once everyone is at the table.  Consulting with other parties on these matters before one gets to the table insures that the negotiations get off to a smooth, productive, efficient start.

Setting the Goals for the Negotiation

Once you've get all the parties to the table one should begin by affirming and/or developing joint answers to key process questions like:

1. What are our goals for this negotiation, goals for the relationship, and goals for the substance?
2. What ground rules do we want to govern these negotiations?
3. If we had a good outcome to these negotiations, how would we know it?
4. What key elements must our written agreement address?

These plus other key process questions such as those listed above should be addressed before tackling the content of the negotiations.

If there is bad history or poor working relationships with or among key parties at the negotiating table, don't begin by trying to negotiate the substance.  Acknowledge the problem without assigning blame and propose that the group or the individuals look back, not to blame, but to learn so that the same problems don't plague the current negotiations. 

These conversations need to be facilitated by a neutral facilitator with clear ground rules that are strongly enforced.  It is critical to create a safe space for the parties to be able to raise and discuss issues that can derail or unnecessarily prolong negotiations. 

Ki ThoughtBridge was invited to facilitate negotiations with a group that had been negotiating for two and a half years and had been unable to reach agreement.  In the course of conducting confidential diagnostic interviews with the parties, we discovered that they had major issues that had not been addressed and were hindrances to a successful negotiation. 

We told them that they should not begin negotiating until they had dealt with these “elephants.”  We spent a day unpacking elephants and unfinished business.  Once this was done the parties reached agreement within a week.

In another instance, we were asked to facilitate complex negotiations between a city government, a corporation and numerous community groups.  Ki ThoughtBridge discovered that one party to the negotiations was stuck in internal conflict. 

Their inability to agree with each other meant they were unlikely to agree with the other parties.  We advised the other parties that this team needed to work through its own issues before it could negotiate with them.  After helping that one party gain internal team alignment, the parties were able to come together and negotiate successfully.

Once the parties have cleared away the process issues, then you are ready to focus on the substance, i.e., what you want out of the negotiation.  When the complex negotiation has a massive number of parties who don't like or trust each other, have very different views on what the outcomes should be and yet need to reach agreement, we recommend you begin the negotiations with joint training in negotiation.  This training allows all parties to develop a common language and understanding of the negotiation process and gives them skills and tools they can use to insure their success at the negotiating table. 

The joint training negotiation workshop deals with generic negotiation problems and gives the parties tools and practice in learning how to negotiate those issues.  Then it asks the parties to take the lessons and tools from the workshop into their own upcoming negotiations.  Critical tools they learn that can help them be successful in negotiating the substance of the negotiations are:

1. The Ladder of Inference©, a tool for improving communication around difficult issues.
2. The One-Text Process©, a tool for building consensus and reaching agreement without making concessions among multiple parties who see the world very differently.
3. The Four Quadrant Tool©, a tool for joint problem solving.   

Once people have developed a common vocabulary, skills and tools then they are ready to tackle the substantive issues of the negotiation.  In complex negotiations, give as much attention to the process how you negotiate as you do to the substance what you want to achieve in the negotiations.