What is Negotiation?

I know that this sounds like another one of my dumb questions.

 

But the meaning of negotiation is surprisingly opaque. People have very different ideas about this. And the definition you choose has important practical implications.

 

I stumbled onto this problem as I studied and taught negotiation in recent years. In a forthcoming article on negotiation theory, I analyzed nine books used as texts in law school negotiation courses.

 

One text makes the following broad statement, “Anytime you deal with someone else, seeking to reach agreement on some matter, you are involved in a negotiation.”

 

By contrast, some texts indicate that negotiation occurs in the context of actual or potential conflict. People often reach agreements when there is no manifest dispute. For example, criminal defendants often accept plea bargains offered by prosecutors without making counter-offers. Presumably, some of these defendants believe that they have good legal claims but accept the deals because of the risk of greater penalties, lack of emotional and financial resources to fight the prosecution, or advice from their attorneys, among other reasons. However, some defendants presumably recognize that they are guilty and accept the deals as the best possible outcome. Many divorcing couples reach agreement with little or no dispute and probably so do people in other types of “disputes.” Similarly, some parties in transactional negotiations reach agreement with little or no dispute. Aren’t these interactions negotiations?

 

Since people could have a potential conflict about any issue, having only a potential conflict also does not seem to exclude interactions that might be considered negotiations. What process of seeking agreement does not involve a potential conflict?

 

Conventional conceptions of negotiation often involve various elements that do not necessarily occur in the process of reaching agreement. For example, some people think of negotiation as involving (1) an exchange of offers occurring close in time to each other, (2) multiple options for handling an issue, (3) an explicit quid pro quo, and/or (4) something different from normal conversation or professional courtesy.

 

Although sometimes it may be helpful to focus on processes that involve explicit disagreements or the other factors I just mentioned, ignoring interactions without such factors leads people to overlook much of lawyers’ everyday work of seeking agreements. When we use overly narrow definitions, I think that our work isn’t as helpful for practitioners and students as it should be. So, as a general definition of negotiation, I think that it is appropriate to use the broad, unqualified concept of seeking agreement.

 

What do you think? Email me. You never write. You never call.

 

To be continued . . .

 

John

14 thoughts on “What is Negotiation?”

  1. I agree with the broad statement from the text book. While negotiations are common with disputes, they are not that narrow. The criminal accepting a plea deal is spot on, as well as a couple choosing what movie to see on a Friday night or a family deciding what to have for dinner are more examples of negotiations without (hopefully) disputes. The broad definition, while all encompassing, is more fitting.

  2. I agree with both you and Kelly that the broad definition of negotiation is the appropriate one. If you are seeking to reach an agreement (negotiate) with someone, you must expend some effort to do so. In the case of a criminal defendant accepting a plea deal without making a counter-offer, that effort comes through understanding the plea deal. I think that regardless of whether there is a “manifest dispute,” a negotiation takes place when individuals put forth effort to agree with one another.

  3. Kelly and Katrina, thanks to you both for your comments.

    I plan to write several more posts about this, so keep your eyes peeled for this.

    Best,
    John

  4. I prefer to keep definitions as simple as possible. I like the definition we used at Pepperdine: “a strategic communication process to get a deal done or resolve a problem”.

  5. Thanks for your comment, Gary.

    I prefer a simple definition in this situation.

    The definition you suggest includes the element that the communication process be “strategic.” In my view, this is a complication that is counterproductive.

    Consider the following conversation between two lawyers. Mike asks Serena for a one-week extension to file a response to her interrogatories and she immediately says, “Sure.”

    Is this a negotiation?

    Does it matter if Serena’s response is the result of (a) a professional courtesy that she takes for granted without much thought, or (b) a strategic calculation in which she agrees to the extension to prompt Mike to give her some favor in return?

    I think it is helpful to consider this to be a negotiation in either case. This broad definition includes a large number of agreement-seeking conversations that are a regular part of lawyers’ work (and other people’s experience as well). To exclude non-strategically motivated processes would miss a lot of lawyers’ work in reaching agreement. It would also require complex analysis of motivation since people often have multiple motivations in their communications.

    If one is particularly interested in strategic (or complex, contentious, or other types of) communications, I think it is better to consider those as subsets of negotiation than to exclude non-strategic communication from the category of negotiation.

    What do you think?

    Best,
    John

  6. I think the proper definition is “a situation in which both sides to a dispute are seeking resolution through bargaining.” I think this is the most concise definition that I can come up with that fulfills the question of finding a definition.

  7. I believe (a) above is a negotiation where Mike’s offer lands squarely in Serena’s ZOPA. I believe there is point where Mike’s offer would exceed her ZOPA notwithstanding “professional courtesy “. Both parties are being strategic with the offer and the acceptance or denial of the offer.

  8. Thanks Andy and Gary for your comments.

    I think that this discussion illustrates some of the problems with our terminology, which I generally described in my “Labels Suck” post – http://gb8.254.myftpupload.com/?p=6027.

    Andy, your definition of negotiation includes the requirement of “bargaining.” I think of that word as indicating an exchange of more than one offer. Is that what you mean? In that case, it seems that you would not consider the conversation between Mike and Serena to be negotiation because there was only one offer. Is that how you would see it?

    Gary, can you explain what you mean by “strategic”? I’m puzzled by your comment about the zone of possible agreement (ZOPA) because it suggests that negotiation occurs only when people make suggestions or offers that the other side might or does accept. I assume that’s not what you mean, however, as you would probably think that people are negotiating when they exchange offers that the other side does not find acceptable.

    The word “negotiation” is freighted with connotations such as involving bargaining or being strategic. Although I think that we would all agree that this describes some negotiations (assuming that we have a common understanding of what those words mean), I continue to believe that it isn’t helpful to limit our focus only to such interactions.

    As I describe in my post with the next installment in this series at http://gb8.254.myftpupload.com/?p=6051, lawyers’ work involves an ongoing series of conversations with lots of people to reach agreements. And people could argue whether those conversations involve bargaining or are strategic or satisfy other conditions. To avoid such arguments and confusion, I would prefer to use the phrase “process of seeking agreement.” Unfortunately, that’s awkward.

    Although I am focused primarily on lawyers’ work, this can be applied in non-legal contexts. If a group of people share dishes at a Chinese restaurant, is it a negotiation when they discuss what to order? To consider this negotiation, must it involve bargaining or must the diners be strategic?

    As far as I am concerned, it’s a process of seeking an agreement and that’s enough for me without considering any other conditions.

    It’s fine to analyze bargaining and strategic interactions (whatever we mean by that). But we miss a lot of important things if we ignore agreement-seeking interactions that do not involve bargaining or strategic tactics.

    What do you think?

    Best,
    John

  9. Yes, by “strategic”, I mean she will assess the offer in relation to her ZOPA (which could yield an accept or reject), not “professional courtesy ” (which will always yield an accept). So, yes a negotiation has occurred regardless lf whether the offer is accepted or rejected.

    Thanks!

  10. By the way, I do like “process of seeking agreement”. However, in the context of teaching negotiations, I like to stress to students that it’s a strategic process.

  11. Thanks again, Gary, for your comments.

    Probably more people in our field share your view than mine about the meaning of “negotiation.”

    Indeed, my purpose is to press people to reconsider their (often unconscious) assumptions and views, which often are embedded in terms that people generally assume to have clear, commonly understood meanings.

    Because many people confidently assume that there is only one correct meaning of such common terms – their interpretation – it is probably impossible to develop truly common understandings of some words. So it may be necessary to use other, hopefully clearer, terms.

    For example, to encompass the wide range of things that people do to reach agreements and to avoid confusion surrounding “negotiation,” people may need to use a more awkward phrase like “process of seeking agreement.”

    In future posts, I will discuss similar problems with other terms that people mistakenly assume to have clear, common understandings. So stay tuned.

    Best,
    John

  12. I completely agree with your sentiments John. The term definition can have a different meaning depending on the situation. A broad definition would allow the term to be articulated in the proper light. Ultimately, a definition for negotiation should include the following: (1) that it involves two or more parties, (2) there is a dispute, and (3) there is communication between the parties about the dispute. It is obvious that for any negotiation to exist, there has to be at least two parties. Negotiations also have to involve a matter in which both parties would like to remedy/make better/come to a conclusion/gain clairvoyance on, this is why there is always a dispute involved. Finally, there always has to be some sort of communication between the parties (whether written, verbal, and even non-verbal in some instances) which involve the discussion in one way or the other of the dispute at hand.

  13. “Negotiations also have to involve a matter in which both parties would like to remedy/make better/come to a conclusion/gain clairvoyance on, this is why there is always a dispute involved.”

    To further this conversation and comment on Mr. Walker’s quote above, I do not believe there needs to be a dispute to have a negotiation. An example that comes to mind is two parties who meet to accomplish a shared goal. Although the two parties might propose different methods to achieve that goal, I do not believe this situation is adversarial, which the term “dispute” infers. The two parties certainly still negotiate; either by piecing together different parts of their individual methods or by collaborating to come up with a new method altogether. The parties are still coming to a conclusion, as Mr. Walker suggests, but they are not pitted against each other in a dispute. This is why I agree with earlier comments listed above and disagree with Mr. Walker’s comment.

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