(b) DETERMINE
WHO OR WHAT GROUP WILL CONSTITUTE YOUR APPEAL BODY.
Unless the negotiations are
being conducted at the very highest level, you would be wise to have a
mechanism for settling disputes which arise during the negotiations.
When there are persons above you who can overrule you or to whom the other
side may appeal, these persons should be known to you in advance so that
if and when a dispute cannot be settled in timely fashion at the table,
they can be called upon to step in and assist you.
Some people like to feel they can go over your head to get a higher
decision, even though the decision they get is not what they wanted.
Obviously, such appeals should be kept to a minimum, but when you see that
this procedure is either beneficial or necessary, do not hesitate to
suggest submitting the dispute to your known appeal body.
(c) DETERMINE
THE TIMING INVOLVED IN THE NEGOTIATION.
If, for example, you are
attempting to obligate procurement funds that have an expiration date, you
must conduct the negotiations accordingly. Your opposition would probably
know this also and they will negotiate accordingly.
If, on the other hand, you were not operating under any deadline, you
could protract your discussions and wait much longer to achieve your
desired positions.
This involves the question of who is awaiting the outcome of your
negotiations and how long they can wait. This you must know, but not the
other side, if possible.
(d) DETERMINE THE TYPE AND EXTENT OF THE AGREEMENT YOU ARE SEEKING.
Frequently, the so-called
back-stopping or policy people will draft an agreement, give it to a
negotiator and send him out to get
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approval as written. This
means the negotiator has had little or no part in any policy decisions
embodied in the draft he has been handed, nor has he had the opportunity
of suggesting what should be agreed to at the table and what might best be
left for the operating levels to work out later.
Generally speaking, the English and American theories on this point differ
greatly. The English believe in negotiating international agreements which
settle broad principles, with the necessary implementing arrangements left
to be worked out at the operating levels.
We, on the other hand, tend to go into much greater detail and insist upon
agreement being reached at the negotiating table on many details that
could best be left to those on the operating levels.
If, for example, the English were to agree that military installations
built by us in England had a residual value when we departed, they would
probably prefer merely to state this principle in a bilateral agreement
and then leave to the technical operating levels the working out of the
amount of the residual value. We would want both the principle and a
precise formula negotiated at the table and embodied in the bilateral
agreement.
I much prefer the English theory because no matter what terms are
negotiated at the table it will always devolve upon persons at the
operating levels to put into effect the terms of the agreement and I
believe that their system recognizes that these operating people are apt
to take a more practical view of implementing details that are required
and thus work them out with their counterparts both wisely and
expeditiously. In short, I think this is a more mature concept of
international negotiating. Moreover, this English theory has a built-in
flexibility which our system does not have and where the implementing of
an agreement involves people, this flexibility in carrying out the
negotiated and agreed upon principles is advantageous.
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Our military people understand and appreciate this more flexible method
because they know very well how to work out practical and expeditious
implementing arrangements with their opposite numbers on the operating
level. They would much prefer this flexibility than have every detail
wrapped up in a tight, diplomatic agreement and then be told to live with
it.
At the negotiating table words—every single word—are almost a separate
negotiation. Thus, when we insist upon many details being negotiated, we
have many more words to argue about. Words to the operating levels do not
mean so much—they are interested in getting the job done and not playing
hide and seek in a library.
Obviously, if the subject of the negotiation is a contract as
distinguished from an agreement, it is necessary to agree upon price,
terms, contract clauses, etc., and no basic terms can be left to the
operating level, because the contract has to be administered strictly in
accordance with what is contained within its four corners. But the type of
contract to be utilized, the pricing and payment provisions, the
penalties, if any, the subcontracting arrangements and many other elements
of the contract can be good, bad or indifferent depending upon the ability
of whoever negotiates the contract.
(e) MAKE A LIST OF EVERY SINGLE POINT TO BE NEGOTIATED.
Although most people feel
they can remember, a good negotiator will make a list of all points to be
negotiated. This is both training and helpful precaution and can later be
used as a checklist to make sure that nothing has been overlooked or
forgotten.
(f) MAKE A LIST OF ALL POINTS OR TOPICS WHICH SHOULD BE AVOIDED IN THE
NEGOTIATIONS.
On occasion you will find
that it is advantageous to your overall objectives to avoid mentioning
certain points. You cannot control what the other side will bring up, but
you can make sure that you do not raise such points.
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For example, if you were
negotiating for an American military base in a foreign country, you would
probably not wish to raise the question of whose flag would be flown nor
would you raise the question of conventional versus non-conventional
weapons on the base. The host country negotiators may raise these
questions, but if they do not, you may wish to leave these questions
unsettled at the table.
Similarly, if you were negotiating for a government contract you might
prefer the question of how much subcontracting you contemplate would not
be raised. Thus, you would not raise this subject.
Here, again, such a list is both training and precaution.
(g) DETERMINE, AND CLEARLY CATEGORIZE, WHICH OF THE POINTS TO BE NEGOTIATED
ARE MUST POINTS AND WHICH ARE GIVE POINTS.
In any genuine negotiation
where flexibility exists, there will always be—on both sides of the
table—certain points or objectives without which the contract or agreement
cannot be signed. These are referred to as 'must' positions. Additionally,
there will always be—on both sides of the table—other positions which are
sought but which will not be insisted upon in toto, in order to reach the
overall final agreement. These are referred to as 'give' points.
If the negotiator is fortunate enough to have been permitted to sit with
the policy level or backstopping people, he will have a much clearer idea
of what are 'must' and 'give' points, as well as what the maximum and minimum
positions are with respect to each point.
If he has not had this
opportunity, but is simply handed a draft agreement to negotiate, he must
take the time to break this draft down into every one of its various
elements, in order to determine which are "must" and "give" points and
what his maximum and minimum positions are for each point.
Obviously, what are 'must' and 'give' points, will depend upon the nature
of the subject matter to be negotiated, but it is most
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important for the negotiator
to clearly recognize and categorize his several positions.
For example, if the subject matter is a government contract, the delivery
date may well be a government 'must' point, while from the contractor's
point of view, progress payments during the life of the contract may be a
'must'. Generally speaking, in a government contract, price is usually a
'give' point on both sides of the table because both sides have
flexibility on this point.
Similarly, if you were negotiating with a foreign country for a military
base for American troops, it would be necessary to consider such points as
who will supply the land, who will draw the plans and specifications,
determine the lowest responsible bidder, award and sign the contract and
then inspect and supervise actual construction of the base, what, if any,
local taxes, import and export duties, port, landing and other fees should
be paid, what kind of money would be used, what the residual vale of the
installations would be when left, what the sharing of costs of the occupation
would be and many other questions involving not only rights and
privileges, but dollars and cents.
You might decide that your basic 'must' points were that the host country
supply the land free of charge, that no taxes, import or export fees would
be paid and that all steps in letting the construction contracts and
inspecting the work be retained by you. These points would have no
give in them and without agreement to them you could not successfully
conclude your negotiation.
On the other hand, you could
find considerable 'give' in sharing the costs of the occupation, the
residual value of the installations and conceivably you might agree to a
system of joint inspection of the construction work which would even permit some
flexibility in one of your 'must' points.
After you have analyzed and
categorized your several positions, you may find it desirable to add or
create additional 'give' points in
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order to provide yourself
with greater flexibility. To obtain your 'must' points, you should
be prepared to give on others, so quite naturally you ask for more than
you really want and will accept. The other side will do the same and
will assume you have done so and it is this knowledge which tests a
negotiator's ability to obtain concessions from originally stated
positions.
For example, the company that
had progress payments during the life of the contract on their 'must'
list, could add a request for an advance payment to start work. This
additional 'give' point could be dropped during the negotiation but made
to appear as a concession on the part of the contractor.
Perhaps the outstanding
example in recent times of creating additional negotiating points was when
the Russians resumed nuclear testing, built a wall in Berlin and set a
deadline for conclusion of a peace treaty with East Germany. They
did these things knowing full well that the Western powers would
immediately want the tests stopped, the wall taken down and the deadline
for the peace treaty waived or extended. Thus, to undo what they
deliberately did could be made to appear as concessions and evidence of
flexibility.
Actually, this philosophy is
applicable to areas other than conducting negotiations. When, for
example, you are drafting letters, speeches, documents, etc., that have to
be reviewed and approved by certain types of individuals, it should be
remembered to give the reviewer some opportunity to change or delete
something so you put in the document some statements or thoughts knowing
they can come out without affecting what you really want to remain in the
document.
(h) DETERMINE
AND REDUCE TO WRITING YOUR MAXIMUM AND MINIMUM POSITIONS WITH RESPECT TO
EACH POINT TO BE NEGOTIATED—BOTH
'MUST' AND 'GIVE' POINTS.
Now we are getting at the
heart of the negotiation, namely, the amount and degree of your flexibility on
each point. You must have
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reasons to substantiate your
maximum, fall back and minimum positions and to reduce to writing these
reasons is basic and necessary homework.
If you, as the negotiator,
have been handed a draft agreement to negotiate, you must obtain these
maximum, fall back and basic minimum positions from your backstopping
people. If they do not know them you must develop them yourself and
get their concurrence.
Each of your points—whether
'must' or 'give'—should be dressed up and presented in such a way that
some flexibility—either real or apparent—attaches. In other words,
you would never table a bare minimum position if it possible can be
avoided.
This may involve your tying
together certain of your 'give' points with a 'must' point for negotiating
purposes. We have discussed adding or creating additional 'give'
points to obtain greater flexibility, now we will tie some of these points
together for the same purpose. For example, in the case of the
military base, if the host country must agree to supply the needed land
and was reluctant to do so, you need not table that as a naked, separate
minimum position. Here you might tie that 'must' position to your
'give' position on sharing the costs of the occupation.
If the minimum position that
you could settle for on sharing the cost of operating was that you would
agree to pay all such costs, then you might table as one integrated
maximum position, that the host country agree to supply the land and pay
all the costs of occupation.
You could discuss the merits
of this 'package' for days, and depending somewhat upon how your other
positions would be affected, later appear to relent and agree to the host
country supplying the land and paying half the costs of occupation or to
get your land 'must' position finally settled, you would agree that they
would pay no part of the costs of occupation. Thus you would appear
to be flexible and to have made concessions in order to obtain your 'must'
position on land.
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This tying together of 'must'
and 'give' points to provided greater flexibility between maximums and
minimums is a fascinating exercise and it is this process which enables as
expert negotiator to squeeze every ounce of negotiating latitude from the
cumulative flexibility of his many individual points.
(i) DETERMINE
CLEARLY YOUR AUTHORITY — IF ANY — TO
SETTLE EACH POINT WITHIN THE MAXIMUMS AND MINIMUMS.
You must know your own
authority as a negotiator.
The degree of authority which
a negotiator takes to the table with him is of very great importance.
When, for example, a contracting officer sits down to negotiate a
contract—either at home or abroad—he has complete authority and
responsibility to evaluate, make decisions and conclude a negotiation that
in all respects will stand the acid test of 'best interest for the United
States'.
Conversely, a negotiation may
be entirely ad referendum—back to Washington or your headquarters.
Most negotiations abroad that involve our Embassies or the Department of
State are ad referendum to a degree which is quite unnecessary, in my
opinion. This means that the man on the firing line, at the
negotiating table, has little or no authority, can agree to very little,
if anything, so he doesn't have to make up his mind and make decisions—he
usually reports and waits, while layers of backstopping and policy people
at home try to agree on what to tell him to say and do next.
Undoubtedly, the reason for this is that the Department knows that they do
not have capable negotiators and thus want to make all decisions in
Washington. For example, in the Spanish base negotiations,
twenty-five people sat in Spain over eighteen months and they did not have
authority to agree to a word or a comma without Washington approval or
permission. For this type of negotiation, you obviously need a man
of infinite patience—or a glorified messenger boy.
This question of authority for
the negotiator is aptly analogous to the quarterback of a football team.
Some coaches believe that a quarterback does a better job in running the
team if he is permitted
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to call the plays on the field
as he sees fit. This is how procurement negotiators and private
industry operate. Other coaches, however, send in every play from
the sidelines for the quarterback to call throughout the game. This
is how our Department of State operates.
If a negotiator is not capable
of exercising the required judgment or making the necessary decisions,
then perhaps the latter system of sending in every single play is required
or that man should not be a negotiator in the first place.
The ideal situation is where
the thoroughly practical negotiator can meet with his backstopping people
on the policy levels and jointly work out areas or limits of authority
within which the negotiator is free to move around and make decisions.
This would place the responsibility for the outcome of the negotiation
where it belongs and minimize constant referral of all details to the
layers of backstopping people which results in a completely blurred
responsibility as well as intolerable delays.
(j) REALISTICALLY
EVALUATE YOUR BARGAINING POSITION BOTH WITH RESPECT TO INDIVIDUAL POINTS
AND OVERALL POSSIBILITIES OF SUCCESS.
If you, the negotiator, do not
know the full worth or merit of your own positions, you cannot extract the
best possible agreement. Conversely, if you have been oversold or
have oversold yourself on their real value, you are riding for an awful
letdown. You must be brutally realistic in this appraisal of your
case and make known your conclusions to your principals because what your
principals may want is one thing, but what your evaluation as the
negotiator is of obtaining it, is quite a different thing. This is
not to suggest that a negotiator should be pessimistic about achieving the
desired results, it means only that someone—and an expert negotiator is
the best one—should be called upon to critically appraise the possibility
of success.
Most of the backstopping,
policy or research people who have decided what they want from desks
thousands of miles removed, have little or no conception of how to go
about actually getting what they want as the negotiating table. Here
the expert should be consulted and directed to realistically evaluate the
bargaining positions.
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The ultimate purpose of this
critical evaluation is to make clear to you whether you are going to
negotiate from strength or weakness.
(k) WORK OUT A
PLAN OF THE ORDER IN WHICH YOU PROPOSE TO PRESENT THE VARIOUS POINTS ON
YOUR LIST. WITH A VIEW TO ACHIEVING MAXIMUM RESULTS ON THE IMPORTANT
POINTS.
In short, your must plan your
attack, point by point.
(l) TRY TO
ANTICIPATE OPPOSING VIEWS AND REACTIONS ON EACH POINT AND PREPARE TO
REFUTE OR REBUT THOSE VIEWS—IF THOUGHT NECESSARY.
Sometimes it is best to not
immediately dignify opposing arguments by a reply. You may confuse
your opposition by passing over that point and going on to another and
coming back to it at a time when someone on the other side may be absent
or tired or when they are unprepared.
(m) CONSIDER HOW
AND WHERE YOU WOULD LIKE TO SEE THE NEGOTIATION GET UNDERWAY AND PROCEED.
Obviously, you must
consider and agree where to hold the negotiations.
The first meetings of
negotiating teams can be very important. You may wish to have the
initial session more in the nature of a get acquainted session, in order
to size up your opposite numbers. You should expect the other side
to come to this first meeting with plans of their own on how they wish the
negotiations to proceed. Thus, there may be considerable jockeying
for the modus operandi on both sides.
Your negotiating abilities
will get their first workout at these initial sessions and you must be
prepared to fight for the procedures you feel will best suit the case you
have to present.
The complexity of the issues,
the number of points to be taken up and decided and the caliber of your
opposite numbers will influence the procedures you should agree to.
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There is one school of thought
that believes the initiative and advantage are always with the side that
tables the first draft of positions or even the agreement itself. I
feel that many times this reasoning is highly specious, because without a
proper foundation being laid and fully understood by all, this first draft
tabling may very well boomerang and cause misunderstandings that can take
weeks to explain away and get back to normal. This could put you on
the defensive at the outset—a position you should avoid, if at all
possible. Drafts of anything contain words, and these words can
easily be misunderstood when they hit people cold, with no foundation
having been laid.
If the negotiations are within
foreign countries, you must be double careful, because no two men—much
less countries—have the same sensitivities and words and phrases that we
can understand, can sometimes offend others reading a document for the
first time.
I would prefer, after a get
acquainted session, to plan on having general discussion sessions where
the overall objectives of the negotiation would be spelled out clearly.
This may then result in your being asked to submit a paper on either the
overall objectives or in further elaboration of specific points that may
have come up during the general discussions Then what you say in the
drafts can be more readily understood.
Occasionally, after you go
through these educational, explanatory sessions, you may be able to press
for an agreement in principle and then have it mutually agreed that you
would attempt to prepare a draft paper setting forth such agreement in
principle. This procedure will also give a color of authority, even
though it is necessary to refer this paper to your home base for approval
and concurrence. If you are properly prepared and if you have chosen
this procedure to try and sell the other side, you could just happen to
have a paper already prepared for submission at the next session.
Your overall negotiating
posture can be greatly influenced in your attempts to obtain the
procedures you desire. I recall an important negotiation with
government representatives of a foreign county that has had hundreds of
years experience in negotiations and I was
30
desirous of going through a 'feeling out' process at the first
session. I had a plan of action but wanted to get to know my counterparts
a little better before talking specifics or even procedures. Shortly
after the introductions and amenities, the negotiator for the other team
read a detailed plan of procedure and asked me point blank if I would
agree to its adoption. It was almost the exact opposite of the manner in
which I had hoped to proceed and I was facing a direct question on its
adoption.
For a brief moment I was on the defensive but I had to look this man in
the eye and quietly say, no, I could not agree to that procedure. He was
somewhat aghast. From that moment on, however, I had the initiative in
the entire negotiation and was careful to retain it. I had hoped for a
smoother beginning but the necessity to be almost brutally frank was
forced upon me by the other side.
(n) PUT YOURSELF THROUGH A 'DEVILS ADVOCATE' EXERCISE, WHEREBY YOU
TEST EACH ONE OF YOUR POINTS AND POSITIONS TO SEE IF THEY ARE FAIR AND
REASONABLE TO BOTH SIDES.
Inherent in this exercise is respect for your opponent's positions.
The existence of "good faith" on both sides, without which the negotiation
is futile, assumes respect, albeit not concurrence, for the positions of
both sides.
The best way to test your points and positions is to put yourself in
the other's position and ask yourself what would you do. Would you agree,
could you agree, etc., to what you are proposing?
I think the outstanding example of this sort of self-examination that I
recall was the desire of host countries abroad where we have military
bases, to have jurisdiction over United States forces in those countries,
for offenses committed off the base or not in the line of official
duties. This was the rather torrid Status of Forces issue and many
thinking people, both military and civilian, were insistent that no such
jurisdiction be given the foreign countries and that of our forces be
solely accountable to their own commands.
By asking myself what would the United States want if it were a host
country, with many thousands of foreign troops on our soil,
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I was able to respect and endorse the positions of our friends abroad
that they have this limited jurisdiction over off-duty and off-base
offenses. I was sure that the United States would take exactly the same
position if the situation were reversed.
If, as an intellectually honest man you conclude that a point, a
position, or indeed your overall objective is not fair and reasonable to
the other side, you would be well advised to make some adjustment, because
you can be made to look ridiculous later by a smart negotiator or the
other side, and you run the risk of doing irreparable harm to the overall
negotiation.
Moreover, anyone who deliberately negotiates an unfair or unreasonable
agreement or contract is only asking for trouble at a later date. You
cannot take advantage of other people in a contract or agreement and
expect amicable relationships thereafter. It will come back to haunt
you and
you will have done a great disservice to those you represented.
(o) THOROUGHLY RESEARCH YOUR OPPOSITION'S BACKGROUND, REPUTATION,
HISTORY, PERFORMANCE RECORD ON PREVIOUS AGREEMENTS OR CONTRACTS, ETC.
The information thus developed, should be filed away for use at the
table and a good negotiator will never go to the table without it. You
will be surprised at the extent to which this background information can
be used during the negotiations to secure and maintain the psychological
advantage so necessary from time to time.
Remember also that the other side will know chapter and verse
concerning your own history, background, performance, etc., and will use
this knowledge against you at the table.
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