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M O D U L E

II NEgOTIATION

Negotiation may be defined as any interactions between two or more par-ties who are striving to deal with conflict. Negotiation includes formal negotiation, in which the conflicting parties get together explicitly for the purposes of bargaining or resolving a specific dispute. However, it also includes emergent negotiation, in which conflicting parties have not expressly declared their intentions to negotiate (R. Fisher & Brown, 1988; Pruitt & Carnevale, 1993). In emergent negotiation, conflict arises and negotiations emerge as infor- mal discussions or other casual interactions to deal with the conflict. Given the pervasiveness of conflict in social interaction, virtually all interactions between individuals or groups could be viewed from the perspective of negotiation. As people work through their differences, negotiation presents opportunities for fights, oppression, and violence but also opportuni- ties for creative problem solving, deeper understanding, social justice, reduced tensions, and enhanced relationships. Whereas helping professionals generally have time to prepare for for- mal negotiations, they may need to respond in the moment for emergent negotiations.

LEARNING OBJECTIVES

Upon successful completion of this chapter, you will be able to:

• Use negotiation strategies to develop treatment plans and service agreements with clients.

• Compare and contrast three approaches to negotiation— power, rights, and interests.

• Identify the role of culture and other forms of human diversity in negotiation processes.

• Implement a six- stage framework for negotiations.

In this module, we will focus on negotiation between parties who are directly involved in a conflict, such as negotiations between helping professionals and clients, between

Barsky, Allan. <i>Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice</i>, Oxford University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771. Created from liberty on 2019-10-29 04:46:44.

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coprofessionals, or between client systems (Shulman, 2016). Subsequent modules build on the theories and approaches described in this module, because each module demonstrates various methods that helping professionals can use to assist others involved in nego- tiation. Thus, mediation, facilitation, advocacy, coach- ing, and so on, can be viewed as different methods of helping people negotiate. As you work through this module, consider the challenges faced by people who are struggling to negotiate conflict on their own. In later

modules, you can use these insights to consider how helping professionals might be able to help negotiators overcome these challenges.

The following section describes various forms of contracting with clients, including mat- ters pertaining to the enforceability of implied, oral, and written agreements. The next sec- tion provides an overview of four primary approaches to negotiation: power, rights, interests, and transformation. A section on culture explores how negotiators need to take diversity issues into account, including language, beliefs, values, and expectations. The final sections of this chapter provide a general framework for negotiation processes, including preparation, engagement, discussion and exploration, bargaining, obtaining commitments, implementa- tion, evaluation, and follow- up. This general framework may be used regardless of which negotiation approach you adopt. In subsequent chapters, you will have an opportunity to implement this general framework with specific negotiation approaches and strategies.

CONTRACTING WITH CLIENTS

Most helping professionals are familiar with negotiating, though they generally use different terminology. For instance, helping professionals “contract” with clients in the early stages of a problem- solving process (Shulman, 2016). In the process of contracting1 or treatment planning, they negotiate an agreement about the problem(s) for work, treatment goals, the professional’s roles and obligations, and the client’s roles and obligations (Hepworth, Rooney, Rooney, & Strom- Gottfried, 2013). Although helping professionals ascribe to the principle of client self- determination, they often unwittingly impose terms on their clients. Consider the following example of a professional’s explanation of client confidentiality, its extents, and limitations.

Everything we discuss in our sessions remains confidential. In other words, I will respect your right to privacy. I will not tell anyone about what you say, unless I have your express written permission. There are some exceptions as required by the law, my code of ethics, or agency policy. For instance, if anything raises concerns that a child or other person may be put at risk of harm, I have a professional obligation to take steps to help that person avoid the harm …

1 In legal literature, contracting between individuals is called private ordering. This term suggests that the parties to the contract are free to negotiate or arrange their affairs as they see fit, without state intervention or limits. Capitalism and free markets are based on the principle of private ordering. Although the United States and most democratic countries support the right to private ordering, their governments do impose certain limits (e.g., making certain contracts illegal or unenforceable if they are designed to harm vulnerable populations, breach environmental laws, violate public safety laws, and so on). In socialist countries, there are greater limits on private ordering, as the government regulates more of the economy.

“Negotiation” is derived from

the Latin neg (not) and otium

(leisure or ease). Hence, the word

negotiation reflects the inherent

tension (not leisure) within the

activity. —Jonathan Cohen

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Here, the professional is telling the client what confidentiality means, rather than negotiat- ing it. The professional may ask the client to agree, but even then, the terms of the contract for confidentiality are all or nothing. Genuine negotiation with the client would allow the client and professional to discuss all terms of the contract and develop individualized provi- sions that meet the needs of this client. Consider a client who does not want confidential- ity. This client might negotiate an agreement where the professional is not bound to keep anything confidential— the client may even ask the professional to broadcast information about the client over the Internet. Alternatively, a client may ask a professional not to share certain information with a supervisor or with researchers conducting a program evalua- tion. If the client is not provided an opportunity to express these concerns, the worker is essentially imposing the terms of confidentiality. Free and informed negotiation enhances a client’s right to self- determination.

W hen working with involuntary clients, practitioners and clients often experience conflicting interests (Dolgoff et al., 2012). In child protection cases, for example, social workers are mandated to investigate allegations of child abuse and neglect. Parents sus- pected of abuse are interested in privacy and autonomy. The workers are interested in ensuring the safety of the child. To engage parents on a voluntary basis, the worker tries to negotiate terms of a working arrangement that satisfy the interests of the parents and the worker. Ideally, the parents and worker transform an involuntary relationship into a purely voluntary one in which both parties agree to a certain ways of behaving and interacting. If the worker is unable to secure the child’s welfare needs through voluntary interven- tions, the worker can impose the authority of the child protection system (e.g., by initiat- ing court proceedings). In between these extremes, the worker can use various levels of bargaining and persuasion to influence the parents and fulfill the child protection mandate (Rooney, 2009).

Contracting with clients serves a number of purposes, including clarifying the roles of the professional and client and ensuring that both are working toward the same goals. To the extent that clients truly agree with the terms of the contract, they will be more com- mitted to following through. When clients feign consent or defer to the authority of the professional, they may be less inclined to fulfill their commitments. Reaching agreement is just one phase of the negotiation process. To determine the success of negotiation, imple- mentation should also be considered.

APPROACHES TO NEGO TIATION

This section describes four basic approaches that people may use to negotiate con- flicts: power, rights, interests, and transformation (R . Fisher et al., 2011; Kinon, 2012; Institute for the Study of Conflict Transformation, n.d.).2 As Figure II.1 demonstrates, each approach can be applied separately, although there are often overlaps, for instance, when different parties are attempting to use different approaches.3 Further, some negotiators will use different strategies and approaches at different points in the negotiation process. This

2 Van Es (1996) uses four archetypes, attributing each to a particular era: (a) the “warrior” concept, dat- ing back to the Byzantine Empire; (b) the “mercantile” concept, dating to the Renaissance; (c) the “civil” concept, attributed to the Enlightenment; and (d) the constructive concept, attributed to the 20th century.

3 Some “purists” suggest that their preferred approach should not be mixed with other approaches because of mutually exclusive goals and strategies (Folger et al., 2010). “Pragmatists” may acknowledge that even if one strives for a purely transformative or interest- based approach, elements of power and rights need to be taken into account.

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introduction to Module II provides an overview of these approaches. Chapters 4, 5, and 6 describe each of these approaches in greater detail, including specific skills and strategies that may be used to implement them.4

Power Rights

TransformationInterests

FIGURE II.1. Negotiation Approaches

The power approach to negotiation views parties as competitors. Each party uses her power to influence the other and gain advantage. Conflicts are resolved by who is strongest— for instance, the party with the greatest physical strength, the best weapons, the most political clout, the highest intelligence, or the largest financial resources. In the most basic form of power- based negotiations, there are no rules of fair play.5 Parties can lie, cheat, bludgeon, or commit other savage acts on one another. Winning is the highest value. Although using power may include the use of violence and extreme coercion, people can use power in a nonviolent and ethical manner. As you will discover in upcoming materials and exercises, there are ways that people can use power with honesty, integrity, nonviolence, and good faith— particularly when there are overlaps between power and other approaches to con- flict. In many instances, a power- based negotiator is more likely to “win” what she wants if she uses power in a nonviolent and ethical manner.6

The rights approach is intended to be an “enlightened response” to the injustice and barbarism of a purely power- based approach by imposing rules of fair play. Rather than presume that “might is right,” the rights approach suggests that “right is right.” Under the rights approach, the legal system creates a set of procedures and rules designed to treat people fairly, regard- less of their position of power or powerlessness (Bossy, 2003). The rule of law suggests that laws rather than force govern people. Laws dictate who is entitled to what and under which circumstances. If parties are uncertain about who is right or what is right, they can go to

4 Note that Chapter 7 deals with transformation in the context of mediation rather than negotiation. The skills and strategies described in this chapter may be used by negotiators on their own, however, the inter- vention of a mediator or another helping professional may be necessary to help parties use this model when they are embroiled in conflict.

5 In many forms of power- based conflict, there are rules of fair play; for instance, the Geneva Convention describes fair treatment for prisoners of war. This example demonstrates how power- based and rights- based conflict approaches can overlap.

6 When a negotiator uses coercion, threats, or violence, the other negotiator may feel forced to respond in kind.

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court for a determination by an impartial judge.7 To the extent that the law is clear, parties need not go to court. They can negotiate based on their rights (Velasco, 2014). Rights- based conflict arises when people have conflicting rights or when one party believes that another has violated his or her rights but is not accepting responsibility. In either case, a judge can resolve matters for the parties by applying relevant laws. While the rights perspec- tive encourages greater civility, legal battles are still “civil wars” (i.e., the process is adversar- ial). As with power- based negotiations, rights- based negotiations are adversarial processes in which each negotiator fights for his position.

The interests approach,8 popularized in the 1980s by the Harvard Negotiation Project (R . Fisher et al., 2011), shifts the focus of negotiation from adversarial conflict resolution (CR) to joint problem solving based on trying to satisfy one another’s interests. Interests are the parties’ underlying concerns, hopes, needs, and priorities. Whereas power and rights approaches are distributive (focusing on how to divide resources), the interests approach is integrative, meaning that the parties work together to create value and develop solutions that meet the needs and interests of all parties (Follett, 1941). In its purest form, parties try to resolve conflicts by identifying mutual interests and ways of satisfying one another’s interests, regardless of their rights or power. Interest- based negotiation asks parties to focus on nego- tiating what is truly important to them, rather than trying to win by achieving a solution that fits with their original positions. When the interests approach is implemented effec- tively, collaboration replaces competition and win- win solutions are possible. The quality of the ongoing relationship between the parties is more important than determination of their legal rights. Interest- based negotiators reframe “opposing parties” into partners, allies, teammates, or joint problem- solvers.

The transformative approach suggests the primary purposes of negotiation and other forms of CR are to change the way people view conflict and improve how they interact in response to the conflict. According to Bush and Folger (2005), the basis of problematic conflict is not a difference of rights or contradictory interests, but rather the destabilizing effect that it has on the people involved in the conflict. Conflict tends to make each person feel more vulnerable and more self- absorbed, leading the interaction to become more destructive, alienating, and dehumanizing. Bush and Folger suggest that interpersonal conflict can be transformed through the processes of empowerment and recognition. Empowerment refers to restoring each party’s sense of his or her own value, strength, and capacity to handle life’s problems. Recognition refers to each person acknowledging and demonstrating empathy for the situation and problem of the other (Institute for the Study of Conflict Transformation, n.d.). While other approaches focus on how to resolve conflict, transformation focuses on the moral and personal growth of the parties. The actual conflict need not be resolved. Accordingly, transformative negotiation is oriented toward individual and relational pro- cesses, rather than producing specific outcomes. The exchange of communication between parties is more important than how resources are distributed between them.

Lederach (2005) defines conflict transformation as “envision[ing] and respond[ing] to the ebb and flow of social conflict as life- giving opportunities for creating constructive changes processes that reduce violence, increase justice in direct interaction and social structures, and respond to real- life problems in human relationships” (p. 14). This defini- tion emphasizes that conflict, peace, and social justice are ongoing processes. Conflict trans- formation refers to changing the way we view and respond to conflict in order to promote positive change: “From the transformational perspective, conflict is the tension between

7 They could also go to arbitration, which is a rights- based process similar to court, but with a private judge. 8 It is sometimes called “principled” negotiation because it operates on fairness and other general principles.

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what is and what could be. Conflict forces parties to deal with deeper issues and thus serves as a constructive social process” (Isenhart & Spangle, 2000, p. 9). Transformation fits with restorative justice (described further in Chapter 3), as both approaches promote justice through means that respect the dignity and worth of all people: acknowledging what has happened in a truthful and compassionate manner, empowering people to correct injus- tices, restoring relationships, and encouraging people to move on in a fair and constructive manner (Lederach, 2006).

To illustrate how these contrasting CR approaches relate to practice, consider a conflict involving sex discrimination in a for- profit agency. Assume you are a female employee who is earning 70 percent of what male employees earn for the same work at this agency. In plan- ning to negotiate with management for equal pay, you can approach this conflict from any of the four approaches.

From a power perspective, the cause of this conflict is based on the imbalance of power between men and women; for example, men hold the greatest number of managerial positions, where salary decisions are made. To address this imbalance, you might build a coalition of employees (male and female) to confront management and demand that pay inequities be redressed. You might also threaten to go to the media and disclose the agen- cy’s discriminatory practices. In other words, you will develop various sources of power to influence management, countering the power that it holds over you.

In contrast, a rights approach starts with the premise that men and women have equal rights under the law. This includes the right of women to equal pay for work of equal value. Because you are earning 30 percent less than men means that these rights have been vio- lated. Your strategy may begin with informing management about equality rights and nego- tiating ways to implement them. You may cite rights from relevant laws, agency policies, or international declarations of human rights. If management does not agree to abide by these rights, you may decide to go to court or a human rights tribunal for an adjudicated determi- nation and enforcement.

Using an interest- based approach, you need to engage management in a joint problem- solving process. You could start the process by assessing the underlying interests of the parties. As a female employee, you want equal pay for work of equal value. Your underly- ing concerns include fairness and respect. Management wants to minimize expenses and maximize profits. However, they can also agree that all employees should be treated with fairness and respect. As part of the problem- solving process, they may be interested in exploring research to determine whether equal pay and treatment of employees leads to enhanced work satisfaction, greater productivity, and less turnover. Perhaps there are cre- ative options for reallocating resources in the agency so that everybody gains (identifying wasteful expenses, creating a salary structure that rewards good work). As you and manage- ment consider options, your mutual goal is to find common ground and reach a win- win solution. Ultimately, this negotiation process will result in better working relationships and mutual benefits.

The transformative approach suggests that conflicting parties need to gain (a) a better understanding of one another’s situation, and (b) a stronger sense of control over their own destinies. For management, this means learning about how gender- based discrimi- nation affects you and acknowledging the validity of your feelings. For you, this means learning and acknowledging the pressures on management (e.g., keeping costs in check to be able to continue to provide services and survive during an economic downturn; satisfying the profit motive of the agency’s shareholders). Neither you nor management has to agree with the other. However, you can strive to take greater control over your roles in the conflict. Further, you can be transformed regardless of whether the specific con- flict about equal pay is resolved to both parties’ satisfaction. Even if you do not obtain

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full parity in salaries, your participation in a constructive CR process provides you with a greater sense of pride and purpose. You and management may also develop new and deeper understandings that may help you deal with the conflict more constructively in the future (Lederach, 2006).

Although the issues have been simplified for demonstration purposes, this scenario illustrates key differences in applying different negotiation approaches. As you work through the various approaches in more detail, consider the assumptions of each and how each approach views success.

CULTURAL DIVERSIT Y

As noted in Chapter 2, culture refers to shared beliefs, values, language, customs, and behav- ioral norms that occur among groups with common experiences (Shonk, 2014). Cultural groups can be defined by ethnic background, nationality, religion, gender, sexual orienta- tion, socioeconomic status, education, disability, or other aspects of human diversity and social affiliation (Kemp, 2009). Diversity issues are pervasive in negotiation. For helping professionals, diversity issues arise in a number of realms:

• Various agencies and professionals are reaching out to diverse communities to provide better, culturally informed services. Existing models of practice and system requirements may not meet their needs.

• As recent immigrants work their way through employment services, health services, wel- fare programs, schools, and other bureaucracies, they often come into conflict with help- ing professionals who are the gatekeepers and service providers in these systems.

• When disadvantaged and disenfranchised groups are organized and educated about their rights, they are better prepared to negotiate for social justice and confront discrimination in systems where helping professionals work.

• As diverse groups move into helping professions (including CR), older professional val- ues and cultural norms are being challenged.

• In many jurisdictions, courts and legislatures are recognizing freedom from discrimina- tion for people from diverse backgrounds; helping professionals are often responsible for implementing these rights (e.g., access to employment, school, social services, voting, marriage equality).

• Conflicts also arise within diversity groups. Although some cultures prefer to resolve intracultural conflict on their own, others welcome the assistance of helping profession- als from outside of the community (LeBaron Duryea & Grundison, 1992).

Cross- cultural conflicts arise at various levels: misunderstandings caused by differences in language or cultural interpretations, disputes over allocation of resources between majority and minority groups, conflicting values, and mistrust from previous experiences of oppres- sion or exploitation. Issues considered negotiable in one culture may be considered taboo within another culture. Consider a situation in which your son plans to marry a woman from another culture; how would you feel if her parents asked you for a certain sum of money for taking their daughter into your family? Be prepared to negotiate differently in different contexts; while you might haggle over the prices of a car with a used car dealer, the local coffee vendor would be quite surprised if you started to bargain for a cup of coffee. Although it is important to recognize cultural components to disputes, be careful about ste- reotyping or blaming a particular diversity group for causing conflict. If this is a two- party conflict, both cultures play a role in the development of the conflict as well as its resolution (Oetzel & Ting- Toomey, 2013).

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Each negotiation approach has different implications for conflict and culture issues. Consider a conflict between a client (Clarence) from a disadvantaged group and a therapist (Thelma) from an advantaged group in the community. During a session, Clarence yells:

You pretend like you care about me, Thelma, but that’s only for an hour. Then you go home to your nice house in your nice neighborhood with your nice family.

From a power perspective, Clarence perceives that Thelma comes from a position of greater power and influence. He is a client from a background of poverty, low education, and social discrimination. Thelma has a good job, educational background, and home. Clarence also sees her as a person with authority. As a helping professional, Thelma does not want to exploit Clarence with her power. If she wanted to use her power with good intentions, she might employ her authority and expertise to give Clarence advice on how to behave:

You are getting angry. Why don’t we try to calm down and talk to each other like civil adults?

The reason Clarence verbally attacked Thelma may be seen as a way for him to exert power. By asking him to calm down, Clarence thinks she is trying to diminish his power. He responds by becoming even angrier. Conflict will escalate unless Thelma can find a way to diffuse it. If Thelma uses a transformative approach, she will demonstrate empathy with his frustration. She will also try to understand his cultural background. Rather than becom- ing defensive, she will try to offer him support. Rather than quell his power, she will try to empower him.

You don’t think I truly care about you. This seems to be affecting our working relationship. Please tell me more about how you would like to see my role.

In addition, Thelma might explore Clarence’s cultural background by speaking with cultural interpreters or other helping professionals from his culture (Martín & Phelan, 2009). She may learn, for instance, that her sense of professional boundaries is perceived as a lack of caring within Clarence’s culture.

From an interest- based perspective, Thelma could encourage Clarence to engage in joint problem solving with her. Her strategies could include “separating the person from the problem” and “balancing reason with emotions” (R . Fisher & Shapiro, 2005). Within cer- tain cultures, these presumably positive suggestions could be detrimental. Separating the person from the problem could be seen as insensitive. For some groups, a positive relation- ship with the person is inseparable from being able to work together on problems (Barkai, 2008). Clarence has already indicated that Thelma is emotionally detached from him. He is more accustomed to sharing details of his private life with a person he knows more person- ally. Thus, Thelma might be able to bridge the cultural gap by allowing Clarence to get to know her better.

In terms of balancing reason with emotions, Thelma might run into trouble once again. Emotions are expressed differently among different cultures. The fact that Clarence raised his voice may be an expression of anger. However, his culture may have a different sense of which voice levels are appropriate in a given context. If Thelma responds in a calm, rational tone, Clarence might interpret this as further evidence that Thelma does not care about him. Accordingly, emotional expression must be construed within a cultural context (Barkai, 2008). Vivid display of emotions does not necessarily mean a lack of rationality. Conversely, some people demonstrate little emotion even though, underneath, their feel- ings are affecting their ability to make reasoned decisions.

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The forgoing examples just touch the surface of issues related to culture and conflict. When working with people from a particular culture, consider learning more about their culture by reading scholarly literature on that culture, as well as consulting with other help- ing professionals who have worked with this population (Lee et al., 2013).

FRAMEWORK FOR NEGO TIATION PROCESSES

The following framework provides a series of stages to guide negotiation processes. This framework fits best for formal negotiations where you will have time to reflect and prepare for the situation. For informal negotiations, you may not have time to go through the steps in a thorough manner. Still, you can apply various suggestions from this framework even if you do not have time to incorporate all the steps. The framework is not a fixed recipe but rather a general outline of stages, strategies, and questions that you may use to guide your negotiations. The framework is designed to help you analyze conflicts and frame them in a way that helps you decide how to respond. Apply the framework loosely; that is, feel free to use various parts of the tools without following all the suggestions. Different conflict sce- narios will call for emphasizing different parts of the framework. Return to the framework at various stages of negotiation to re- evaluate your strategies. Initially, for example, you might decide to use rights- based strategies. Later, you might choose to move from rights- based contention to interest- based cooperation.

The framework is comprised of six stages: preparation; engagement and planning; dis- cussion and exploration; bargaining; obtaining commitments; and implementation, evalu- ation, and follow- up. The following descriptions provide suggestions for strategies and skills to be used at each stage of negotiations. In the following chapters, you will have an oppor- tunity to learn how to employ power- based, rights- based, and interest- based approaches to negotiation in greater depth.

A. Preparation

According to the adage, “forewarned is forearmed,” there is clear advantage to being prepared for the possibility of upcoming conflict. Preparations for conflict, however, do not necessar- ily mean arming oneself as if to prepare for war. Preparations comprise a range of strategies for readying yourself to engage effectively in dialogue, problem solving, collaboration, or any other form of negotiation.9 Preparations include understanding the conflict situation and preparing yourself cognitively, emotionally, spiritually, and behaviorally so that you can par- ticipate effectively in upcoming interactions with the other parties involved in the conflict.

When originally faced with a conflict, you might be inclined to respond immediately. Rather than acting on instinct or automatic reaction, start by considering the nature of the conflict— what is the conflict about and how might you respond in a deliberate, effective manner? Box II.1 provides a series of questions designed to help you analyze the conflict. Initially, you might think a conflict is based on hateful or disrespectful attitudes of the other person. By working your way through this conflict analysis guide, you might discover the conflict is based on an innocent miscommunication. Make use of the theories described in Chapter 2 to help you conceptualize the nature of the conflict. Applying attribution theory, for instance, you might discover that both parties are making false assumptions about each other’s motives. Perhaps the other party sounded disrespectful, but meant no harm. Once

9 Preparation can include preparation for mediation and other forms of assisted negotiation, as described later modules.

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BOX II.1 CONFLICT ANALYSIS GUIDE

1. Define the issue under dispute. What circumstances led to the conflict? how did

each party become aware of the conflict? On the surface, what is the conflict about?

2. What is the nature of the difference underlying the conflict?

a. Difference of interests or needs? A difference of interests often comes down to the

problem of how to distribute limited resources (including tangibles, such as

money and property, or intangibles, such as time, emotional energy, and status).

Distribution can be based upon the parties’ relative power, rights, or joint inter-

ests. Can the pool of resources be expanded before distribution is made? Can

parties focus on mutual interests, rather than divisive ones? Sometimes, parties

can prioritize their interests and ensure that fundamental needs (e.g., food, shel-

ter, and security) are satisfied before trying to meet other needs or interests.

b. Difference of understandings? A difference in understandings can be based upon dif-

ferences in the parties’ thought processes, perceptions, memories, beliefs, and inter-

pretations, or differences in the information they are relying upon (e.g., different

research, rumors, assumptions, or personal observations). To resolve differences in

understandings, see the Communication Skills Inventory in Table 1.1 (see Chapter 1).

c. Differences of values, ideologies, or attitudes? Values, ideologies, and attitudes (VIAs)

form during childhood and generally remain stable throughout adulthood.

When a conflict is based on a difference in VIAs, trying to change the other

party’s VIAs is difficult, if not impossible.10 Rather than try to change some-

one’s VIAs, negotiation could focus on exploring differences and validating one

another’s perspectives (see the transformative approach). Another alternative

is to de- link VIAs from interests: Agree to disagree on VIAs and then negotiate

other issues based on one of the other approaches. A third alternative is to try

to identify a higher- order value that both parties can agree on (Menkel- Meadow,

Love, Schneider, & Sternlight, 2005). Conflicts are often multidimensional. If

the conflict is based on more than one type of difference, identify each of these

and assess which aspect is the primary cause of the conflict or which can be

addressed within a reasonable time frame and cost constraints.

d. Differences of social identify or status? Social status may include identities in relation

to culture, ethnicity, gender, religion, sexual orientation, and other aspects of

human diversity, as well as status within organizations (e.g., manager vs. frontline

worker). If a conflict is caused or exacerbated by stereotypes or bigotry, what types

of strategies can you use to diffuse these? If you feel your own social identity is

being attacked, what can you do to ensure that you do not act solely from defen-

siveness, anger, or fear? (See Chapter 9 for identity- based group facilitation.)

10 Short-term strategies may help people negotiate solutions to specific disputes, but it is unlikely they will have much impact on core values, ideologies, or attitudes. To help people modify their VIAs, one must consider long-term strategies.

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you have a clearer understanding about the nature of the conflict, you can start to think about what you want to achieve by engaging in negotiations with the other person. Do you want an apology? Do you want to clear the air through open and honest discussions? Do you want to pre- empt future miscommunications or build a more trusting relationship. Conflict analysis provides you with insight into the current conflict situation, as well as the goals or objectives for negotiation. Conflict analysis also helps you consider how to take cultural differences and similarities into account.

Under point 7 of the Conflict Analysis Guide (see Box II.1), you have identified an approach to negotiation that you believe fits best with the conflict situation: power, rights, interests, or transformation. In Chapters 4 through 7, you will learn about specific strate- gies and skills that may be used to implement each of these approaches. In Chapter 6, you

3. What additional theories of psychology or social systems help you to under-

stand the conflict between the parties (e.g., game theory, conflict styles, person-

ality theories, developmental theory, defense mechanisms, attribution theory, or

other theories from Chapter 2)? how do your chosen theories help you interpret

the situation?

4. What is your overall goal for negotiation? (win for me, win for all parties, trans-

form the conflict, build a better relationship, reconcile, develop a socially just

solution, etc.)

5. Based on your goal, what are your specific objectives? how will you know you are

successful? (Consider process objectives as well as outcome objectives.)

6. Which negotiation approach(es) have you and the other party tried in the past

to handle your conflict? What was helpful and unhelpful about these approaches?

What patterns of interaction from the past require change?

7. Which negotiation approach(es) are most likely to help you achieve your over-

all goals and objectives? Which approach(es) fit with your professional values?

(Consider both the means and ends of the negotiation process.)

8. How should cultural diversity be taken into account? What are your orienta-

tions regarding each of the following continuums:

• time flexibility versus time rigidity

• high- context communication versus low- context communication

• collectivism versus individualism

What are the other party’s orientations toward these continuums? given our

similarities and differences, what types of skills and strategies should I embrace,

strengthen, or avoid? (e.g., to be more flexible on time issues, to less assertive in

communication styles).

9. How is the social context of the conflict affecting the parties and their choices

for resolution? What other stakeholders are affected by the decisions? how might

family members, friends, coworkers, or other social systems contribute to the reso-

lution or continuation of the conflict?

10. Given your assessment of the conflict, what specific strategies, tactics, and

skills should you prepare to use?

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will also find a section on communication skills (see Box 6.4). Although these strategies are particularly helpful for conflicts involving misunderstandings, effective communication skills are vital regardless of which negotiation approach you are using.

Building on the discussion of mindfulness in Chapter 1, Box II.2 provides an Emotional Awareness Guide. This guide is designed to help you prepare for negotiations by identifying your emotions, assessing how they may be affecting your ability to negotiate, and deter- mining strategies to help you regulate your emotions in a more effective manner. Consider working with a teenager who has experienced horrible abuse by a stepparent. Upon reflec- tion of the teen’s situation, you might identify feelings of pity for the client. Beyond this pity, you might feel inadequate because you did not take appropriate actions to protect your client. If you are unaware of these feelings, you might have an unconscious inclination to accommodate the client, wanting to assuage the client and your feelings of inadequacy. By raising your awareness, you can make more deliberate choices. “I feel badly for this client and my inability to protect him. Still, my client does not need pity. He needs me to be hon- est and direct as we develop a contract for work.” Speaking with a supervisor or colleague may also help you label and process your emotions.

B. Engagement and Planning

During the engagement and planning stage of negotiation, consider how you want to con- nect with the other person in a discussion of the issues. For a low- level conflict, you may simply approach the person and say, “I’d like to talk to you about …” For higher- level con- flicts, you may need to be more strategic. First impressions can be important, especially when people feel defensive, angry, or sensitive about a particular topic. Ponder a student intern who tells her supervisor during their first meeting, “Because I am a mature student, I think I am ready for greater responsibility than you’ve given other students.” This informa- tion may be accurate and well intended; however, the supervisor may interpret the student’s request for more responsibility as a slight against her ability as a supervisor to determine appropriate intern responsibilities. If the student concentrated on engagement first, the supervisor might have responded more positively to her request.

BOX II.2 EMOTIONAL AWARENESS GUIDE

1. What are my primary emotional reactions to the conflict situation? The other per-

son? (e.g., angry, frustrated, afraid, exhilarated, happy, surprised, anguished, proud,

disgusted, cautious, enamored)

2. how might these emotional reactions make it more difficult for me to respond

effectively during negotiations?

3. What secondary emotions may underlie my primary emotions (e.g., guilt, shame,

sadness, disappointment, vulnerability)?

4. What strategies can I use to regulate my emotions and use them in a constructive

manner? (See Chapter 1 regarding mindfulness, meditation, deep breathing, reflec-

tion, supervision, focusing on the present, and channeling emotions.)

5. how can I foster feelings that will contribute to constructive CR (e.g., moderately

calm, confident, curious, and concerned)?

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Engagement strategies11 are designed to build trust and prepare for a more effective negotiating relationship. Engagement strategies include

• getting to know one another through introductions, sharing pertinent information, and demonstrating interest in the other person (“I’d like to hear more about your professional background,” and “Would you like to hear about my prior work experience?”);

• demonstrating empathic understanding12 (“I understand that, as a supervisor, you want to make sure that your student interns are adequately prepared before they meet clients.”);

• demonstrating unconditional positive regard or respect (“I appreciate all the time and expertise that you are willing to share with me.”);

• demonstrating genuineness or authenticity (“To be honest, as a mature student with con- siderable work experience, I have some concerns about the supervisory process.”); and

• offering reasonable hope or fostering expectations of positive outcomes (“I’m confident that we can resolve these concerns.”).

Planning includes determining the time and location of the negotiations, as well as the agenda, the people to be present, and how decisions will be made (see Box II.3). Each of these points may require negotiation— or what may be called prenegotiation. If you have the opportunity to initiate preparations for negotiation, you can develop specific proposals to structure the negotiation process in a constructive manner. Ideally, the terms for configuring the process are noncontroversial, allowing the parties to agree

BOX II.3 NEGOTIATION PLANNING GUIDE

1. Who will be present at the meeting? What will be the roles of each person present

(negotiator, expert input, advocate)?

2. What is the purpose of the meeting?

3. Where is the best location and means for negotiation (private office, public res-

taurant, telephone call, video conference, online negotiation or communication

program)?

4. When will we meet? (starting time, duration, breaks, scheduling subsequent

meetings)

5. Why is this meeting important? (purpose, intended goals, value of coming to agree-

ment, costs of nonagreement)

6. how will we engage in negotiations (ground rules for communication)? how will

decisions be made (consensus of all parties, majority vote, designated decision

makers)?

11 A strategy is a plan of action that the person intends to use during negotiation. A tactic is a more specific action that the person may use to implement or pursue a particular strategy.

12 Empathy, unconditional positive regard, and genuineness are the three core conditions that Rogers (1957) identified for establishing a positive working relationship with clients. Hope has been identified as a fourth factor in promoting a positive therapeutic alliance (Larsen, Stege, Edey, & Ewasiw, 2014).

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easily about the process and then, to focus on the main issues to be negotiated. In some instances, particularly in power- based conflicts, one or both parties may use prenegotia- tions to gain tactical advantages (e.g., having “home- court advantage” or delaying the process to put pressure on the other party). For a constructive negotiation process, con- sider identif ying a location that is private, comfortable, and viewed as fair to both sides. In terms of timing, ensure that everyone has sufficient time to prepare, as well as suf- ficient time during negotiations to exchange stories and information, and work through the issues in a thoughtful, creative manner. Also, make sure all the relevant decision makers are present at the meeting. If an advocate attends the meeting without the client she represents, for instance, the advocate may not have authority to make decisions on the client’s behalf.

At the beginning of negotiations, you may need to establish who will take the lead in guiding the process. W hen working with clients, helping professionals generally take responsibility for facilitating the process. Likewise, in a supervisor- supervisee situation, the supervisor is typically responsible for initiating and guiding the discussions. Be aware of situations in which it is appropriate for you to take the lead, as well as situations in which the other person expects to take the lead. Sometimes, you may take the lead because it fits with your official role. Other times, you may take the lead because you possess the requisite skills or because the other person needs your guidance (e.g., if the person is emo- tionally frail, anxious, or unsure about how to proceed). Finally, you may also agree to share the facilitation roles (e.g., who sets up meeting times, who takes notes, who initiates the agenda).

If you are planning on using a collaborative approach to negotiation, you could provide the other person with information about this approach: the nature of the approach, why it is useful, and what each person can do to help the process move forward. Developing guidelines for communication and sharing information may also help create positive expec- tations for the negotiation process.

C. Discussion and Exploration

Once you have established a positive working rapport and guidelines for the negotiation process, you are ready to discuss the substance of the conflict. During this stage, both par- ties have an opportunity to present their concerns, including background information and negotiation process goals. Some negotiators prefer to go first, presenting their concerns as a way to frame the negotiation (setting the tone, establishing the opening agenda, and focusing the other person’s attention on particular issues). Often, it is useful to allow the other person to present first, so you can gather information, assess the situation, demon- strate interest, and build further trust with the other person. Whether you present first, using active listening skills is beneficial. Paraphrasing, reflecting feelings, and summarizing provide you with an opportunity to verify what the other person wants and why they want it. Think about this phase of negotiations as a learning process. Each negotiator is learning about the other, including her style, strategies, and constraints. As you present informa- tion, remember that the other person is also assessing you. Accordingly, it is important to communicate your concerns and goals clearly and candidly. Although you may respond to the other person’s concerns, be prepared to share your concerns in a friendly and assertive manner.

As you will see in the following chapters, negotiators may use different strategies regard- ing opening offers or requests. For instance, some negotiators use extreme opening offers to provide them with room for negotiation, or more specifically, room for making conces- sions. Others identify their concerns rather than opening offers, hoping to engage the other

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party in a collaborative problem- solving process. In any case, know that although origi- nal offers or concerns expressed by the parties can shape the initial stages of negotiation, there are many ways to encourage all parties to re- evaluate their positions and concerns. At this point in the process, the main tasks are for each party to communicate their concerns, gather additional information, and begin to establish priorities. Specifically, it is important to determine the sequence of issues to be discussed. Sometimes, it is helpful to deal with the most important issues first. Often, it is helpful to focus initially on areas of easy agreement. By finding common ground and agreeing on easier issues, the parties build trust and set a positive tone for dealing with more challenging issues (Box II.4).

D. Bargaining

During the bargaining stage, each party works toward agreement through the use of vari- ous skills and tactics. Using a power- based approach, negotiators might try persuasion, using threats of punishment or promises of rewards to encourage the other person to agree to terms favorable to the first negotiator. Alternatively, power- based negotiators might exchange proposals, asking each other to make concessions and move toward a compro- mise solution. Using a rights- based approach, negotiators might debate which laws apply and whose rights are paramount (for instance, a client’s right to privacy vs. society’s right to protection from a potentially violent offender). Using an interest- based approach, negotia- tors might engage in joint problem solving, clarifying their differences, finding common interests, and identifying solutions that meet everyone’s major concerns. In some instances, the parties cannot resolve all issues, but they can narrow their differences and reach partial agreements. They may also seek out additional resources to help them meet their needs. Chapters 4 through 6 will go into greater depth about the skills and tactics that parties may use from the three approaches to negotiation.

In the midst of negotiations, continue to assess your goals and strategies, as well as those of the other party (Box II.5). For example, during a case conference, the clinical coordina- tor has been making a passionate case for admitting a client who does not meet the ordinary admissions requirements. She notices that everyone in the room has fallen silent, staring at her. Initially, she had decided to use her impassioned arguments to persuade every- one. Noting the reactions of her colleagues, she decides to tone down her arguments. She switches strategies, using insight- oriented questions to engage her colleagues in discussion

BOX II.4 SKILLS AND ACTIVITIES FOR THE DISCUSSION

AND EXPLORATION STAGE

1. Communicate your concerns clearly and frankly.

2. Listen and validate the other’s concerns.

3. Ask clarification questions to ensure mutual understanding.

4. Provide relevant background information and stories to provide greater insight

into each other’s views of the conflict.

5. Ask exploration questions to gather relevant information for problem solving.

6. Establish priorities for the negotiation process.

7. Develop an agenda or sequence for dealing with particular issues.

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rather than “talk at them.” Although it is useful to prepare for negotiations by having a clear sense of your goals and priorities, remain flexible throughout negotiations. Your priorities may change, your understandings of the other person may change, and your strategies may change.

E. Obtaining Commitments

Once the parties start moving toward agreement, it is important to ensure that both parties are prepared to make firm, genuine commitments. Otherwise, one or both parties will be less inclined to follow through on their promises, exacerbating the conflict. Box II.6 high- lights potential strategies for obtaining commitments.

One form of commitment is a legally binding contract. Contracts are essentially prom- ises that each party makes to the other. Written contracts formalize and memorialize the agreement; that is, they provide a document that helps people remember the terms of the agreement. Contracts can be enforceable even if they are not drafted by lawyers or signed and witnessed. Legally drafted agreements are easier to prove in court (Barsky, 2012). However, oral and implied contracts may also be enforceable.13 An oral contract is a verbal agreement. An implied contract exists where the parties do not explicitly say they are enter- ing an agreement; the agreement can be inferred from the pattern of behaviors that existed between the parties. For instance, even if you do not verbally promise confidentiality to a client, you may imply such a promise indirectly: You meet with the client in a private office, the certificate on your wall says you are a licensed professional, and you encourage the

13 Statutes of frauds may require contracts regarding real property (land and buildings) to be in writing, and family laws may require certain types of divorce or separation agreements to be in writing. Otherwise, the courts will not enforce them.

BOX II.5 ONGOING ASSESSMENT AND STRATEGIZING

DURING NEGOTIATIONS

1. What was my original understanding of the nature of the conflict? how is my inter-

action with the other person affecting my views of the conflict?

2. Do my strategies seem to be working? Are we moving toward my stated goals and

objectives? If not, why? Consider process objectives, relationship objectives, and

outcome objectives.

3. What are the strengths and limitations of the strategies I have been using? What

other strategies would be useful at this point?

4. What are the strategies of the other party? What are the strengths and limitations

of these strategies? how can I best respond to these strategies?

5. If difficulties exist, would it be useful to bring in help (e.g., a consultant, an advo-

cate, a mediator, a buffer, an arbitrator)?

6. What ethical dilemmas or values issues need to be considered as we negotiate

(e.g., honesty, confidentiality, safety, self- determination, respect, mental capacity,

informed consent)?

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client to trust you and share personal information. Although verbal and implied contracts are enforceable, written contracts entail a number of advantages:

• Both parties are clear about whether they have entered into a contract. • The terms can be articulated in detail, ensuring both parties have the same understandings. • Written contracts tend to solidify the commitment of both parties.14 • Before the contract is signed, lawyers, supervisors, or others can review it and provide

legal or other professional advice. • If disputes arise in the future, the document can serve as evidence of the parties’

agreement. • Terms of the written agreement can be modified with subsequent written agreements,

providing a paper trail for the sequence of events.

Oral agreements tend to be less formal and take less time to produce. People often use oral agreements when they assume there will be no problem with enforcement. Implied contracts are problematic because neither party can be sure if they have entered a contract and if so, what the precise terms of the contract are. As a helping professional, preferred practice suggests that you be deliberate about entering contracts and explicit about their terms, whether the contract is oral or written.

Written contracts are particularly important when the subject of the conflict has seri- ous legal ramifications (e.g., criminal behavior, child abuse or neglect, physical injuries,

BOX II.6 TASKS FOR OBTAINING COMMITMENTS

1. Articulate specific promises or commitments for each party.

2. Test the feasibility of the commitments and determine whether the agreements

need to be tweaked.

3. Offer support to other parties to help them implement their commitments.

4. Determine whether the agreement needs to be formalized as a legally binding

agreement or remain as informal commitments.

5. Determine whether the agreement will be formalized through an oral or written

contract.

6. Identify who will take notes and transcribe any agreements, including whether the

agreement needs to be drafted by an attorney.

7. Articulate the agreement in a manner that is clear, future focused, fair, and compre-

hensive of the terms agreed by the parties.

8. If you need the support or cooperation of outside parties to implement parts of the

agreement, contact them to request their help.

9. Identify concerns that have not been resolved and make plans for next steps (jointly

or individually).

14 The effect of written contracts on commitment may depend on the circumstances. For instance, research on the effectiveness of “no- suicide” contracts with suicidal patients has not substantiated whether written contracts decrease the incidence of suicide attempts (Puskar & Urda, 2011).

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significant monetary losses). Many agreements do not have legal ramifications and may not be intended to be legally enforceable. In family therapy, a counselor may help family members negotiate a “family contract.” The contract may specify the roles, privileges, and obligations of each parent and child in the family. The contract encourages each party to ful- fill a certain set of obligations. However, the family members do not intend it to be a legally enforceable contract. In other words, if one family member does not live up to the terms of the agreement, the others cannot go to court to make that person comply.

In most jurisdictions, drafting formal contracts is a function restricted to licensed law- yers. If a nonlawyer drafts a formal contract, that person may be subject to criminal charges for “unauthorized practice of law” (Applegate & Beck, 2013).15 The role of a helping pro- fessional in writing informal agreements with clients is to help them articulate their wishes and expectations for one another. When preparing informal agreements, helping profes- sionals should advise the clients that they are not providing legal advice and are not drafting legally binding contracts. They should also ensure that their informal agreements avoid the trappings of a legally binding contract:

• Use a title for the document, such as “Memorandum of Understanding,” “Unofficial Peace Treaty,” or “Nonbinding Family Agreement,” rather than “Contract” or “Agreement.”

• Do not have the clients or witnesses sign the document. • Use plain language, rather than technical, legal language. • Include a sentence that states the document is not intended to be a legally binding agreement.

These points will make it clear to clients that the agreement is, in fact, an informal one. In some situations, a helping professional will help clients come to a general understanding and then ask the clients’ lawyers to draft the general understanding into a legally binding contract. This guarantees that the clients have an opportunity to obtain independent legal advice16 before they sign the contract and make it enforceable (Applegate & Beck, 2013). If you are concerned about the legal ramifications of negotiations and contracting, ensure that you obtain your own legal advice. You may also have an ethical obligation to ensure that clients have an opportunity to consult with a lawyer to make certain that they are apprised of their legal rights. Ensuring clients have access to lawyers (in appropriate cases) may also guarantee the enforceability of the contract, as it will be harder for a client who has legal representation to argue she did not understand the nature of the contract.

As a helping professional, there are a number of advantages to being the person who takes notes during negotiations and prepares the initial drafts of the agreement. You are able to ensure that the notes provide an accurate summary of each person’s concerns, relevant facts, options for solution, and ongoing issues, as well as any agreements. You can also use respectful, plain language to promote trust and ongoing collaboration. Finally, by assuming the role the secretary or recorder, you are pre- empting the possibility that another recorder might develop notes or agreements that are dishonest, unfair, biased, or unclear. Honesty, fairness, balance, and clarity are key to ensuring that both sides not only reach agreement, and also implement the terms and remain committed.

When negotiations include complex issues, consider using a template or checklist. A template is a model contract containing standard terms for a particular situation (e.g.,

15 What constitutes unauthorized law varies across jurisdictions, so you should to refer to the laws and judg- ments in your own state or province.

16 Independent legal advice refers to separate legal advice for each party. One lawyer cannot advise all parties to an agreement because there may be a conflict of interest between the parties.

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client service agreement, release for confidential information form, employment contract, supervision agreement). Standard terms (or boilerplate clauses) may be useful in provid- ing language that has been vetted by other negotiators or attorneys. Be careful about sim- ply adopting standard contract clauses, as they may not apply to your situation or they may contain language that the parties do not understand. Standard clauses may also stifle creativity regarding possible solutions. Checklists identify topics that may be included in agreements: names of the parties, their intent for the agreement, what each party promises, time frames for completion of tasks, commitments of each party to act in good faith and to use best efforts, methods of CR to be used if further issues arise, contact methods and information, desired outcomes of the agreement, and how particular contingencies will be managed (Carrell & Heavrin, 2008). Having a checklist helps ensure that the negotiators address key issues in the contract. The checklist should be used as a general guide. If certain items do not apply, the parties can decide not to include them in their contract.

In general, contracts should be future focused, identifying what the parties agree to do from this stage forward. Going into the past (what the client should have done, how the professional messed up) serves no purpose at this stage of negotiations. Negotiators should test the feasibility and veracity of the agreement, considering what issues might arise and how the parties may deal with such contingencies. In an employment agreement, an agency might agree to annual cost- of- living adjustments to the professional’s salary. What standard will be used to determine the cost of living adjustment? What happens if the agency does not have funding to pay for higher salaries? Both parties have an interest in making sure the agreement is workable for both sides. If the professional can assist the agency in securing additional grants or fees, the agency will be in a better position to provide pay increases.

In some instances, negotiators think they have reached agreement, but the agreement seems to dissolve when they are composing the written agreement. They may have had a misunderstanding about what each side is offering. They may be ambivalent about cer- tain terms of the agreement, particularly when they are presented in black and white. An agreement is not an agreement until both sides have made a firm commitment. Avoid try- ing to finalize an agreement too quickly. This may aggravate conflict and stifle creativity. If you start to reach an agreement but the agreement starts to slip away, go back to earlier stages. Perhaps you need to build further trust with the other person. Alternatively, you may need to brainstorm further options or explore other approaches to dealing with the problem.

W hen negotiators are unable to reach agreement, they may proclaim an impasse. Although the impasse may mark the end of negotiations, it could be a temporary break in negotiations. Rather than declare negotiations a failure, consider taking a break so you may develop a new time frame and structure for negotiations. During the break, take steps to build trust, for instance, sharing additional information, offering support on unrelated matters, or showing empathy about the other’s difficult situation.17 An impasse may also be viewed as an opportunity to consider alternatives to negotiation (R . Fisher et al., 2011). If you are not able to reach agreement through negotiation, consider what other courses of action that you can pursue. Can you negotiate with others? Would it be useful to bring in a mediator or other CR professional? W hat other processes could be used to resolve the conflict? Conflict does not necessarily end when there is a negotiated agreement; con- versely, the absence of a negotiated agreement does not mean that there is no end to the conflict.

17 Module IV also provides a section on trust building.

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F. Implementation, Evaluation, and Follow- Up

Upon reaching agreement, it is important to put processes in place to ensure appropriate implementation, evaluation, and follow- up (Box II.7). To continue to build trust, each party should strive to fulfill their commitments as promised. Acting reliably encourages the other person to act in kind. If a teacher has promised to provide a student with extra tutoring but later says she has no time, the student may be inclined to abdicate his commit- ments (tit- for- tat). Whenever possible, avoid “excuses” or reasons not to fulfill agreements. New issues and conflicts may arise. This does not mean the negotiations were unsuccessful or that both parties are free to repudiate the agreement. Agreements can be renegotiated. Keep lines of communication open. You can enhance your relationship with the other party by working through rough patches and dealing with new conflicts as they arise (Carrell & Heavrin, 2008).

Evaluation refers to the process of reviewing the process and outcomes of the negotia- tion process: Which strategies and skills contributed to the effectiveness of the process? Which strategies or skills impeded success? To what extent did the negotiations lead to a successful outcome? Negotiators may use different criteria to measure success, for instance, achieving an agreement that is fair and balanced, achieving an agreement that both parties fully implement, reducing the level of ongoing conflict, meeting the most important needs and interests of the parties, improving the relationship between the parties, or empowering the parties by giving them a greater sense of control over their destinies.

In terms of evaluating the process, making a video or audio recording of your sessions provides an excellent means of evaluating your use of skills and strategies. You can review your performance on your own or with the help of a peer, supervisor, or teacher. Compare how you planned to proceed with what actually took place. Look for crisis points, criti- cal incidents, attitudinal shifts, and factors that moved the negotiations forward. Formal research into your negotiations can make use of various methods: single- system design, quantitative evaluation, naturalistic inquiry, and action research. Although this book is not a research text, the value of various types of research requires at least some mention. Single- system design can help you monitor the effectiveness of your negotiation interven- tions on a case- by- case basis. Quantitative program evaluations are useful for determining

BOX II.7 TASKS FOR IMPLEMENTATION, EVALUATION, AND FOLLOW- UP

1. Identify and implement commitments of each party.

2. Monitor implementation of agreement and identify need for further negotiations

to pre- empt problems or to enhance the agreement.

3. Reinforce positive steps taken to implement the agreement and to improve the

working relationship between the parties.

4. Reflect on the negotiation process, strategies, and skills used to determine effective

ones to continue and ineffective ones to avoid.

5. Refer back to goals for negotiation to determine the relative effectiveness of the

process.

6. Monitor and identify ongoing conflicts that may need to be addressed.

7. Revert back to earlier stages of the negotiation process as needed.

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the effectiveness of a program that uses a particular model of negotiation on a regular basis (Grinnell & Unrau, 2013). Naturalistic inquiry is particularly useful for gaining an under- standing of the negotiation process and outcomes from the parties’ perspectives (Denzin & Lincoln, 2011). Action research is similar to program evaluation, although it combines simultaneous research, evaluation, and program development (Stringer, 2014). Often, evaluation is conducted by practitioners themselves rather than outside research consul- tants. This allows practitioners greater control over how research is conducted and provides them with ongoing research results rather than one report at the end of the evaluation pro- cess (Lewin, 1997). Informal evaluation may be sufficient for your individual purposes. Although formal evaluation is more expensive, the results of formal evaluation can be pub- lished so that others can learn from your negotiation experiences.

Follow- up is an oft- forgotten or undervalued part of the negotiation process. As parties implement and evaluate their negotiations, they should also consider what further steps they can take to manage or pre- empt further conflicts. Consider an agreement negotiated between a nursing home and residents who had complained of poor living conditions and disrespectful treatment by agency staff. To identify and address ongoing issues, the agency could appoint a monitor or ombudsperson to receive complaints and conduct any nec- essary investigations. The agency and residents could also institute monthly consultation meetings to identify and resolve any new concerns that arise. Although some negotiations are one- time CR processes, parties involved in ongoing relationships should approach negotiations as natural, continual, and desirable. The goal may be to develop a relationship that deals well with differences rather than a relationship that never experiences conflict (R . Fisher & Brown, 1988).

KEY POINTS

• Helping professionals can approach negotiation from one of four approaches, separately or in combination: power, rights, interests, and transformation.

• According to the power approach, each party exerts its influence on the other in order to maximize its personal gain, often to the detriment of the relationship between the parties.

• The rights approach suggests that conflicts be resolved in accordance with rights as estab- lished by public laws, organizational rules, community norms, or contractual obligations.

• Interest- based negotiation is a joint problem- solving process in which parties strive to satisfy their mutual interests, including the opportunity to build a more positive relationship.

• Transformative negotiation is a process designed to provide parties with empower- ment and recognition. Empowerment occurs when parties gain a greater sense of self- determination, choice, and autonomy. Recognition occurs when a party gains a better understanding of the other’s situation and demonstrates this newfound empathy to the other through words or deeds.

• When negotiating with people from diverse cultures, helping professionals must decon- struct the assumptions underlying various theories and strategies in order to assure that their interventions are culturally appropriate.

• Preparation for negotiation is an iterative process in which helping professionals reflect on negotiation theory, assessment, strategies, and skills at various points throughout the negotiation process.

• During engagement and planning, negotiators strive to build a trusting relationship and a positive structure for negotiations, setting the tone for constructive CR .

• During the discussion and exploration stage, negotiators share concerns, opinions, beliefs, and hopes for the negotiation process.

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• During the bargaining stage, negotiators select strategies and skills that fit with their assessment of the conflict and their preferred negotiation approach. They continuously assess the situation, modifying their strategies and skills to address new understandings of the conflict, the other party, and opportunities for resolving the conflict in a construc- tive manner.

• As negotiators move toward agreement, they can ensure that both parties are commit- ted to the agreement by testing the feasibility of the agreement, clarifying the terms of the agreement, and determining whether to memorialize the agreement with a written contract.

• The negotiation process continues beyond reaching agreement. During implementa- tion, it is important for both parties to use good faith and best efforts to fulfill their agreements.

• Negotiators can evaluate the process and outcomes of mediation, identifying ways to improve future negotiations as well as identifying any needs for follow- up.

DISCUSSION QUESTIONS AND EXERCISES

1. CONTRACTING: You are working with a psychiatric patient, Pat, who is at risk of committing suicide. Your suicide prevention model suggests that you negotiate a “safety plan” with the client (e.g., Pat will stay with a friend overnight; you will contact the friend by phone to provide the friend with instruction about what to do in case of emergency, Pat will call the 24- hour crisis line if Pat starts to think about committing suicide; Pat will meet with you tomorrow to make further plans). Should this agreement be implicit, explicit and oral, or written? What are the advantages and disadvantages of each type of agreement? Do you or Pat require legal advice before finalizing this agreement? Why or why not? Is this agreement a legally binding agreement? What are the consequences if either one of you breaks the agreement?

2. NEGOTIATION SUCCESS: Select one of the four negotiation approaches described in this chapter: power, rights, interests, transformation. Which of the following mea- sures of success fit best for a negotiator using this approach (you may select more than one measure of success for each approach)? I believe that negotiation is successful if: • I win (maximize gain for me). • Both of us win (maximize joint gain). • We satisfy our underlying interests. • The process is efficient (save money and other resources). • The process is fair (equal bargaining power, neutrality, or impartiality in the process). • We achieve a fair outcome (e.g., equitable distribution of resources— consider, who

decides what is fair?). • I showed compassion, kindness, honesty, and respect. • We develop a better relationship (harmonious, amicable, able to deal with

differences). • The process leads to retributive justice (consequences that hold people accountable

for their misdeeds). • The process leads to restorative justice (restitution or compensation). • We avoid court (e.g., conflicts are settled informally, in negotiation or mediation).

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• We achieve durable solutions (solutions that last, without new conflict arising). • We develop more effective CR skills. • We become more empowered. • We give and receive recognition (through words and actions to each other). • We achieve better decisions (how do you judge what is “ better?”). • We enhance the community (improved due to the intervention). • We promote diversity. • We promote social control (enforcement of societal norms). • We diffuse anger. • Other: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ If you were to design a research project to evaluate success of a CR program, how would you measure success? How would you decide what to measure?

3. DECONSTRUCTING NEGOTIATIONS: Read through the following dialogue between Theodore, a therapist, and Clarabelle, his client (an elderly woman of German descent with a history of trauma). What is the nature of the conflict? What are Theodore’s goals for this negotiation? What strategies has Theodore used to try deal with the con- flict? Why have these strategies been ineffective? Which approach to CR might be more appropriate in this situation? Why?

THEODOR E: After last week’s session, I started to think that there’s a problem we have to discuss.

CLARA BELLE: I don’ t know what you mean. Let ’s just forget it. THEODOR E: No, I really think that we have to talk about it. What do you think the

problem is? CLARA BELLE: What do you think the problem is? THEODOR E: This therapy is about you. It ’s important to explore your feelings. CLARA BELLE: I’m afraid to talk about it. You might start to judge me. THEODOR E: I’ d never do that. I respect you, just as I respect all my clients. CLARA BELLE: Really, Mr. T., I’m too embarrassed to talk about it. THEODOR E: I’m your therapist. You should trust me. CLARA BELLE: I’m your client. You should trust me. THEODOR E: We’re getting nowhere. Maybe we should just terminate our relationship. CLARA BELLE: You said I should trust you. THEODOR E: Exactly. So please tell me what you’ve been afraid to discuss.

4. NEGOTIATING CONCEPTS OF TIME: You are working with a Native American community. In your culture, as well as that of your agency, people set appointments for meetings and conduct meetings in offices. The beginning and end times are fixed, with about 5 minutes of flexibility for lateness or running overtime. Most people from the community you are working with have a different sense of time. People meet when needed and when the time is appropriate, rather than at an artificially predetermined time. Meetings are often held out in the community or in someone’s home rather than in an office building. Meetings seem informal to you, with no clear boundary between when the meeting begins and ends. What are the implications of these cultural dif- ferences for negotiations between you and members of the community? How do you negotiate a set of norms for meetings that are acceptable to both you and members of the community (Macduff, 2006)?

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5. PRESSURE TO AGREE: You have been looking for a job for 3 months and have just received your first offer. You like the agency and the type of work that the agency offers. Unfortunately, the salary is substantially below your expectations. The agen- cy’s position regarding salary is “take it or leave it.” You politely ask the director to consider negotiating the salary and benefits, suggesting there may be more options than take it or leave it. The director says there is simply no additional funding or wiggle room. Use the Conflict Analysis Guide (see Box II.1) to analyze this conflict and to strategize how to approach negotiations. W hat type of conflict is this? W hat is your preferred approach? How will you know whether your negotiations are success- ful? Can negotiations be “successful” even if you do not reach an agreement with the agency?

6. NEGOTIATING UNDER THREAT: You are working with Camille, a crack- using cli- ent who is desperate to be admitted to an addiction treatment program. You tell her there is a 3- week waiting list. Camille threatens to bomb your agency if you cannot get her admitted within 2 days. You believe her threats are real and that Camille has the ability to follow through. Camille is a self- proclaimed white supremacist and member of the Ku Klux Klan. Assume you are African American and Camille views you as sub- human and incompetent at your job. You have tried to reason with Camille, explain- ing that she needs to be patient. Your rational explanations seem to make her angrier. Use the Conflict Analysis Guide (see Box II.1) to assess the nature of the conflict and which negotiation approach you would plan to use with Camille. In this situation, what emotions might you be experiencing? What strategies could you use to manage these emotions?

7. DEVIANT CONFLICT: You work for a lesbian, gay, bisexual, and transgender (LGBT) community center. The municipal government issues a call for proposals for programs for street youth. You submit a proposal on behalf of your agency, requesting $120,000 to hire outreach workers for LGBT street youth. Garth, a government offi- cial responsible for reviewing proposals, says his agency cannot accept your proposal because they do not want to promote sexual deviance among street youth. You argue that this decision goes against the principles of equal protection of the law, but to no avail. Garth says deviants have no rights. You believe that Garth is conflating sexual orientation with sexual deviance, making it hard to find common ground. Using the Conflict Analysis Guide (see Box II.1), assess the nature of the conflict and which negotiation approach fits best for this type of conflict.

8. TWO INTERESTING: You are taking a course where each student is required to par- ticipate in one of eight small- group presentations. Each group is to select a topic from a list provided by the professor. You fear the groups will fight over the topics, as only two topics are interesting. The other six topics are boring, trivial, or too complicated. You are concerned that your group will suffer it if does not get one of the top two top- ics. Some students suggest the only fair way to deal with this conflict is to have each group draw a topic from a hat. You think it’s “stupid” for your learning and grade to be based on a random draw. Using the Conflict Analysis Guide (see Box II.1), assess the nature of the conflict and which negotiation approach fits best for this type of conflict.

9. PLANNING: You are planning to engage your classmates in a discussion of the group presentation topics from the preceding situation. Using the Negotiation Planning Guide (see Box II.3), develop plans for your meeting, including who will be pres- ent, where you will meet, and the proposed structure for your discussions. Provide rationale for each of your choices about the negotiation process.

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10. EMOTIONAL RESPONSE: Identify a conflict in which you had a strong emotional reaction that made it difficult to negotiate rationally. Using the Emotional Awareness Guide (see Box II.2), identify your specific emotions and identify strategies that you could have used to manage your emotions more effectively.

11. TRANSFORMATIVE VERSUS INTEREST- BASED NEGOTIATION: You are a child protection worker with Celeste, a mother who has been mandated by the court to work with you because she uses extreme forms of corporal punishment to discipline her children. Assume that you reject any form of corporal punishment. You want to use a transformative approach to negotiate with Celeste. Assume further that Celeste wants to use an interest- based approach to negotiation. How are your negotiation approaches at cross- purposes? In negotiating with this client, whose approach should prevail? Why?

12. POLITICAL CORRECTNESS: You work in an agency that advances the rights of people with disabilities. During a Congressional hearing, Representative Conrad refers to people with disabilities as “gimps.” The representative thinks it is just a joke, but you find the term offensive. When you raise your concern, Rep. Conrad asks sarcasti- cally, “What are you, the political correctness police?” What is the nature of this con- flict? What are your primary goals in negotiating with Rep. Conrad? How can you best achieve them?

13. STEREOTYPES: Juyoung is a Korean American psychiatrist. She is negotiating with Marcos, a Latin American psychologist who works in the same hospital department. Juyoung views Latin men as macho, impractical, disorganized, and stubborn. How will these stereotypes affect how Juyoung negotiates with Marcos? What can Carlos do to respond to these stereotypes (Menkel- Meadow et al., 2005)?

14. FOLLOW- UP: Vega, a vocational counselor, was asked to work with Mahmoud, but has a conflict of interest because of a dual relationship. Vega’s daughter and Mahmoud’s son go to school together and are close friends. Vega is the only Arab- speaking voca- tional counselor in the area and Mahmoud speaks only Arabic. Vega negotiates the following agreement with her supervisor (Sandy) and Mahmoud: Vega may work with Mahmoud provided that counseling focuses on vocational issues and does not address family issues; Vega and Mahmoud will not discuss their counseling relation- ship with the children; if any problems arise, counseling may be terminated by Vega or Mahmoud. What problems may arise when this agreement is implemented? What follow- up plans should the parties implement to monitor, pre- empt, or respond to such problems? (See Box II.7 for questions that may guide your analysis.)

ROLE- PL AY MII.1: “CONTRACTING WITH CLEM”

This is a role- play between a psychotherapist, Sylvie, and a client, Clem. Sylvie works for Conflictia Family Services, specializing in work with men who have been physically abusive with their intimate partners. Clem was referred by his probation officer following charges of assault against his partner. Clem’s probation officer wants to know whether Clem is cooper- ating with the psychotherapist, one of the conditions of his probation.

The purpose of this role- play is to practice contracting with clients. Because this is the first session between Sylvie and Clem, they need to negotiate the terms of confidentiality and exceptions to it. To prepare for this role- play, Sylvie should jot down notes for herself about what issues are negotiable and what issues are not negotiable. Clem should consider, from a client’s perspective, what terms might be agreeable to him. He is not familiar with the concept of confidentiality, so Sylvie will need to be able to explain what it means, including different options.

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Conduct the role- play in three segments, with breaks and debriefing between the following:

• Engagement— Sylvie will begin by introducing herself and her role. She will demon- strate empathy, genuineness, unconditional positive regard, and fostering hope (positive expectations) to foster a positive working alliance.

• Discussion and Exploration— Sylvie will explain the need for an agreement about con- fidentiality and its exceptions. Sylvie will explore Clem’s concerns about confidentiality, for instance, wanting a safe place to talk and not wanting information shared with his probation officer, his partner, the police, Sylvie’s supervisor, or anyone else. Sylvie will explain situations in which she believes she needs to share information with others. (For further skills and activities for this stage, see Box II.4.)

• Bargaining— Given the issues as framed earlier, Sylvie and Clem will negotiate the terms of a confidentiality contract. Ideally, the contract will address both of their concerns so that both feel good about entering the agreement, without a sense of coercion or compromise.

• Obtaining Commitments— Once the parties reach a tentative oral agreement, Sylvie will explore the feasibility of the agreement with Clem, ensuring that both can follow through on their commitments and adjusting the agreement as necessary. Sylvie will write the agreement, ensuring Clem is agreeable to the terms she is writing. (See Box II.6 for Tasks for Obtaining Commitments.)

Each segment of this role- play will take 10 to 15 minutes. Debriefing : What unexpected issues arose in the role- play? What did Sylvie do that helped

make contracting more effective? If Sylvie could do the role- play over again, what would she do dif- ferently? Does the confidentiality contract between Sylvie and Clem satisfy the needs and expecta- tions of third parties (e.g., the agency, probation, Sylvie’s profession, Clem’s partner)? If not, what else should be considered? Does either party in this scenario require legal advice before signing the contract? Is this contract a legally binding agreement? If either party breaks the agreement, what are the legal consequences, if any? (See Box II.5 for additional questions to help you assess the effectiveness of the strategies used in this role- play.)

ROLE- PL AY MII.2: “ TRIAGE TRIBUL ATIONS”

Trouble is brewing in the emergency room at Conflictia Hope Hospital. The head physi- cian, Dr. Phelan, and the head nurse, Ms. Nascent, have been arguing about priorities for triaging patients. On a particularly busy Friday night, Dr. Phelan scolds Ms. Nascent for advocating priority for a man recovered from a serious car accident. Dr. Phelan suggests any medical intervention would be “futile.” Ms. Nascent feels deeply embarrassed by this public admonition. She understood the patient suffered from a very serious head injury, but believed there was a reasonable chance for survival. Various emergency room staff members have taken sides, some with Dr. Phelan and some with Ms. Nacent. Ms. Nascent decides to meet with Dr. Phelan to negotiate some sort of truce to ensure that such an incident never occurs again.

Ms. Nacent understands that Dr. Phelan has high expectations of himself and his staff, having learned to cope with conflict through self- reliance, distrust of others, and pride in his own work. She finds him controlling, condescending, and negative. Ms. Nascent wishes Dr. Phelan would be less autocratic and more collaborative in his approach to working with other professionals. Given these differences, Ms. Nascent needs to find an effective way to work with Dr. Phelan if she is wants to continue her current job.

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• To analyze the nature of the conflict, both parties should use the Conflict Analysis Guide (see Box II.1).

• To prepare for this role- play, Ms. Nascent should use the Negotiation Planning Guide (see Box II.3), determining an appropriate location and structure for her negotiations with Dr. Phelan.

• During the role- play, Ms. Nascent should begin by using trust- building skills and then open the discussions so that she and Dr. Phelan can express their concerns. Ms. Nascent should make use of the skills described in Box II.4.

This role- play (including preparation, role- playing, and debriefing) requires at least 45 minutes.

Debriefing : What was the nature of the primary conflict in this situation? Which negotiation strategies and skills did Ms. Nascent employ effectively? What other strategies and skills might have been useful? Given what the parties resolved— and left unresolved— what type of follow- up should the parties use?

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Conflict_Resolution_for_the_Helping_Professions_Ne..._----_(Module_II_ Negotiation)