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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. Conflict Resolution for the Helping Professions : Negotiation, Mediation, Advocacy, Facilitation, and Restorative Justice, Oxford University Press, Incorporated, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/liberty/detail.action?docID=4792771. Created from liberty on 2020-01-27 16:30:02.

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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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C h a p t e r f o u r

Power- Based Negotiation

T o understand power- based negotiation, it is important to appreciate the nature of interpersonal power. Interpersonal power refers to the capacity of indi- viduals or groups to influence each other’s attitudes and behaviors (Murdach, 2008). Power is a dynamic phenomenon as it occurs through interactions between people. One person may have more power or influence over another in some situations, but less power over the other in different situations. Consider a clinical supervisor’s power in relation to a clinician. The supervisor has the authority of the agency to direct the clinician about how to intervene with particular clients. The clinician is likely to heed the supervisor’s advice even if the clinician disagrees, provided the advice is about professional matters within the agency’s mandate. The clinician is less likely to heed the supervisor’s directives about matters that the clinician believes are personal or beyond the agency’s mandate. Furthermore, the clinician is more likely to rebel if the supervisor uses power to dictate on repeated occasions. After a person exercises power over another, that person tends to have less power to influence the other in the future.

LEARNING OBJECTIVES

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

• Evaluate the advantages and disadvantages of using power- based negotiation. • Recognize when others are using positional bargaining and power- based negotia-

tion strategies. • Respond effectively and ethically when others are using power- based strategies. • Analyze the ethics of using specific power- based conflict resolution (CR) strategies.

Power- based negotiation is an adversarial process in which each party tries to exert influ- ence on the other in order to achieve a solution that meets his or her preferred outcomes

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or self- interests. This approach is sometimes called dis- tributive negotiation,1 because it focuses on dividing existing resources rather than creating new resources or seeking mutually acceptable solutions (Wilmot & Hocker, 2014). Power- based negotiations are essen- tially competitive interactions. Each party views nego- tiation as a zero- sum game; that is, each party perceives

the conflict as if their goals are mutually exclusive and as if they are fighting over a fixed set of resources (Oetzel & Ting- Toomey, 2013). Any gain by one party is tantamount to an equal loss by the other party. Consider a school conflict in which an additional $100,000 has been allocated to fund the art and music departments. The art department wants the full $100,000, as does the music department. Each department perceives the other as a competitor. Any money that the other department gains is viewed as a loss. Even if the music department receives $90,000, it views the $10,000 allocated to the art department as a loss. Because the primary goal of the interaction is to maximize personal gain, the parties are not interested in cooperating for mutual gain (Mayer, 2015).

Power- based negotiators use a range of competitive strategies including positional negotiating, persuasion, intransigence, secretiveness, bluffing, threats, and use of force. In this chapter, we will explore a range of power- based strategies and tactics that clients, help- ing professionals, and others may use to try to influence each other. We will also explore responses to power- based strategies and tactics. Just because one person initiates a power- based approach does not mean that the other party has to use the same approach. Although this chapter provides some alternatives to power- based strategies, note that Chapters 5 and 6 will go into greater depth on how to implement right- based and interest- based approaches. Before we get into power- based strategies, however, it is important to consider the rationale behind the power- based approach.

RATIONALE: ADVANTAGES AND DISADVANTAGES

When developing this textbook, I experienced internal conflict about whether to devote an entire chapter to power- based negotiation. My ideals and values tell me that I should be pro- moting collaborative processes that foster respect, integrity, civility, and peace. By includ- ing substantial content on power- based negotiations, am I endorsing the use of strategies and tactics that can be used to disrespect, deceive, attack, and oppress others? In contrast, my pragmatic sensibilities suggest that helping professionals will experience situations in which clients, colleagues, and others will be using power- based approaches. Research sug- gests that negotiators often move between power, rights, and interest- based approaches (S. Goldberg, Sander, Rogers, & Cole, 2012). Including power- based content will prepare professionals for responding to power- based strategies. If I do not present power- based content, how will professionals know how to recognize, assess, and constructively respond to uses of power? Furthermore, is it not better to teach ethical uses of power rather than ignore power issues and assume people will know how to use power ethically? I ultimately decided to include this power- based chapter, but with a proviso: “Handle with care.” While it may seem expedient to use power to influence others for your benefit, joining with oth- ers in civil communication and joint problem solving can often lead to much greater ben- efit. Using power to achieve self- interested gains may allow you win the battle (in the short

1 In metaphoric terms, a distributive approach is dividing a pie that is coveted various parties. In contrast, parties using a creative approach will strive to expand the pie or find a completely new pie. They do not limit themselves to seeing just one pie and not enough to satisfy everyone.

Power is not only what you have,

but what the enemy thinks you

have. —Saul Alinsky

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term) but still result in losing the war (in the longer term). If you “win” at collaboration, then you and the other party win in both the short and long terms. The power- based strate- gies in this chapter will help you with role- plays throughout the textbook. Even when you are learning about nonpower- based CR approaches, one or more role- play parties will be asked to use power. For instance, when you are learning transformative mediation, it will be helpful for the parties initially to use power- based or other nontransformative strategies.

So what is the allure of power- based negotiations? How do theories explain the use of power in conflict situations? Personality theories suggest that some people have a deeply engrained predisposition toward self- interest or low concern for others (Thomas & Kilmann, 1974; Oetzel & Ting- Toomey, 2013). People with a Machiavellian personality not only act in self- interest, but view others as exploitable. They are willing to use power to deceive and take advantage of others in pursuit of personal gain (Bereczkei & Czibor, 2014; Machiavelli, 1515/ 1908). Sociocultural theories suggest that predispositions to use power have a cultural component, with people from individualistic cultures tending to use power for self- interest more than people from collectivist cultures (Lim, 2009). In mainstream American culture, where assertiveness is valued, starting negotiations by stating a firm position may be cultur- ally appropriate.2 Rational decision- making and game theories suggest that it is logical for people to act from self- interest, making reasoned choices based on which course of action will maximize their benefits and minimize their costs (Coleman et al., 2014). Similarly, social exchange theory posits that people will trade resources in order to maximize personal gain (Corcoran, 2013). In distributive conflict situations, parties engage in conflict to deter- mine how to divide a fixed pool of resources. Power, the capacity to influence others, is a means through which people can pursue self- interest and claim value for themselves. From this perspective, the use of power can be seen as a method of asserting one’s wishes, needs, and interests (Mayer, 2015). Remember, using power does not necessarily mean the use of violence or undue force. Using power could mean respectful or friendly competition.

Although some people may be motivated to use power- based negotiation to maximize personal gain, the downsides of power should also be considered. A critical risk of exerting power is its impact on relationships (R . Fisher et al., 2011). Power- based negotiation tends to foster mistrust, frustration, and anger. Consider a child protection worker who informs a parent that she must deal with her alcoholism or she will never be allowed to see her chil- dren. The worker is using the authority of his position and legal mandate to pressure the client into treatment (Murdach, 2008). The worker also threatens to withhold the parent’s access to her children. These pressures may lead the client into treatment, but at what costs? Given the power- based means used by the worker, the client is likely to feel disempowered and disrespected. The client will view the worker as an adversary rather than a source of support. The worker’s relationship with the particular client is not the only relationship that may suffer. The worker may gain a reputation for being disrespectful, uncaring, or ruthless in his dealings with clients. The harm to the worker’s reputation may extend far beyond the immediate negotiation.

One might argue that the means justify the ends (Machiavelli, 1515/ 1908), so that using power is justified if it leads to a positive result (e.g., the client goes for addiction treat- ment). From a deontological perspective, however, one should judge the act not just the consequences of the act; acting ethically is more important than the consequences of the act (Kant, 1964). To persuade a colleague to help a client, for instance, I might exaggerate that client’s need (using persuasion power). However, my act is not fully honest. I have acted unethically even if the client gets the needed assistance.

2 In traditional Asian cultures that value harmony, however, asking directly for what you want could be cultur- ally inappropriate.

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Another risk of using power is its negative effect on communication. When people view each other as adversaries, the incentive is to withhold information rather than share. If an agency’s executive director wants to maintain control over the budget, the director may refuse to share budget information or may distort the information she provides. Others at the agency cannot engage in constructive discussions about the budget because they do not have full or accurate information. Although the executive director has maintained power, she and the agency suffer the consequences of poor communication.

From an economic or utilitarian perspective, one of the primary downsides of power- based negotiation is that one or both parties may lose value through this process (R . Fisher et al., 2011). In the midst of trying to claim as much value as possible, each party may use tactics that hurt the other side, for instance, lying, condemning, and waging war. Even when a party “wins” a negotiation, the victory may be hollow given all the costs the winning party has endured in the power struggle. Further, by engaging in adversarial strategies, the par- ties miss opportunities for creative problem solving, including possibilities for fostering greater happiness for both parties. Consider a conflict between divorcing parents. Each par- ent wants to maximize time with Dina, their daughter. Each also wants to deny the other spouse access. Each parent hires an expensive attorney with a reputation for winning hard cases. Each parent tells Dina how awful the other parent is, trying to convince Dina to say she does not want to spend time with the other parent. Mom makes false allegations about Dad committing child sexual abuse. These power- based tactics take their toll on Dina, who suffers emotionally and becomes depressed. Eventually, Mom wins custody. Neither par- ent is happy. Both have spent tens of thousands of dollars on legal fees. Both hate each other. And both are worried about Dina’s mental health. Surely, there must have been a more collaborative process and a more creative solution that could have benefited all family members. Although people using power- based negotiations may view them as a means to maximizing benefits, they should also consider the costs in time, money, stress, and impact on their ongoing relationship.

Power does exist in relationships, so, at the very least, it must be acknowledged. Certainly, there are times when use of power is justifiable, even necessary. The most com- mon example cited is self- defense, when a person is being attacked. This appears to be a zero- sum game: Either the attacker suffers, or the person attacked suffers. Too often, how- ever, people assume use of power is required when there are other alternatives. If you are being attacked, use of force may incite the other to use even greater force. In aikido and other martial arts, for instance, people learn to move with force rather than against it. If someone charges at you and you ready yourself by planting your feet, force will meet force. Both of you will suffer from the collision. Alternatively, you could use the momentum of your charging opponent to your advantage; that is, move with the force rather than against it (Edelman & Crain, 1993). The interest- based approach, described in Chapter 6, demon- strates how helping professionals can apply this strategy in various social conflicts.

Helping professionals frequently work on behalf of disadvantaged individuals or groups. “Disadvantage” is related to negotiation power (lack of knowledge, lack of resources, etc.). Helping professionals can help disadvantaged people gain negotiation power through advo- cacy techniques, described in Chapter 10. Power, however, may not be a critical problem if the helping professional can engage the parties in one of the nonpower- based approaches to negotiation. Rather than having one party try to use its power over the other party, for instance, parties can join forces to work toward mutually acceptable goals (Wilmot & Hocker, 2014). Using power with another person rather than power over another person fits with the interest- based and transformative approaches to negotiation.

As you work through this chapter, consider when the use of power might be justified, even necessary. Consider carefully whether you need to respond to power with power.

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Consider also whether there are ways to use power ethically, or whether any use of power raises ethical concerns. Would it be ethical for you to use power to defend yourself from a violent, verbal attack, so long as you followed up with a more conciliatory approach? Aristotle suggests that an ethical life is a life filled with virtues, for instance, honesty, respect, courage, moderation, and patience (Barsky, 2010). Reflect on how the use of power fits with your spirituality, your professional identity, and your professional values. If exerting power means coercing, deceiving, imposing your will, or exploiting weak- nesses, what is the impact of these strategies on who you are and what gives your life meaning?

The following section explores positional bargaining, a power- based framework that is commonly used in commercial transactions. Although helping professionals may experi- ence such strategies in their work with clients and colleagues, the limitations of positional bargaining become readily apparent when the focus of negotiations encompasses physical health, psychological well- being, social functioning, education, or social justice.

POSITIONAL BARGAINING

Positional bargaining refers to a negotiation process in which each party takes a stance and argues in favor of that stance. Rather than start with problem definition, each party starts by offering a solution.

PHYSICI A N: This patient needs to go on a diet to lose weight. FEMINIST THERA PIST: This patient needs an opportunity to explore her body image

and the unrealistic expectations society places on women.

Once a party offers a solution, backing down becomes difficult. Neither party wants to look weak or lose face. Because both parties are reluctant to move from their original positions, deadlocks are not uncommon. The question becomes “Who is right, the physician or the feminist therapist?” In power negotiations, might is right. If the physician has greater status in the agency, the position of the physician may prevail. Alternatively, the therapist might find allies in the agency to support her stance and win the debate. Regardless, positional negotiations set up one party to be the “loser.”

When positional negotiations are headed toward impasse, parties often agree to com- promise. In other words, both parties give in, at least partially. Each saves face, knowing that the other side is also reducing its demands. Still, both parties are generally reluctant to make concessions, because one party’s loss is the other’s gain (i.e., the parties are playing a zero- sum game). The need to appear tough leads to further intransigence on both sides.

As the following discussion demonstrates, positional negotiators tend to be very strate- gic about how they make and respond to offers.

Opening Offers and Anchoring

An opening offer refers to the initial solution proposed by a party. If your agency’s adminis- trator were negotiating rent for additional office space, for instance, she might offer $2,000 per month. The opening offer tends to act as an anchor, focusing the parties on this piece of information as the starting point for negotiations. Anchoring is a cognitive bias in which individuals tend to rely on the first information that they receive (Rosette, Kopelman, & Abbott, 2014). Whether or not the $2,000 reflects the true market value, it affects the land- lord’s thinking about what a reasonable rent might be.

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Consider a situation more common to helping professionals, negotiating a treatment plan with a client. Assume the client has an alcohol use disorder. He has been minimizing the problem and saying he can control his use if he wants. If you ask the client about his alcohol treatment goal, he is likely to say moderate use. If you refrain from asking and edu- cate him about the advantages of an abstinence goal, then you have anchored the client’s thoughts. The client may be more likely to agree to abstinence because you made the first offer— and made it sound reasonable. Conversely, as a helping professional, you may want to enhance the client’s self- determination by asking the client for his goals first. Deliberately anchoring the client’s thoughts on your preferred goals acts detracts from free choice and self- determination.

When determining what the opening offer should be, some negotiators make as extreme an offer as is tenable. If both parties know they will need to compromise, their initial posi- tions will not reflect what they really want or what they view as a reasonable solution. By inflating initial offers to settle, there is “room to negotiate.” Neither party wants to make too extreme an offer, hoping they do not put off the other. The first offer must be sufficiently reasonable to demonstrate seriousness about the negotiations. You may ask for more than what you want, but your offer should be stated as a reasonable solution so the other person will be willing to engage in further negotiations with you (Hoefer, 2016). Ponder a request to your boss for additional vacation days to allow you to extend your honeymoon abroad. You might ask for 3 extra days, hoping the boss will provide at least 2. If you ask for 14 extra days, the boss might think you are completely unreasonable, becoming annoyed and refus- ing to take your request seriously.

Although some positional negotiators prefer to make the first offer in order to anchor the negotiations, some encourage the other party to make the first offer to assess his nego- tiation strength and position. If you make a first offer without knowing how the second party will respond, you do not know how extreme an offer to make. If your offer is close to your bottom line and the counteroffer is extreme, you leave little room to maneuver in negotiations. If your offer is too extreme, the other party will refuse to negotiate with you. To evoke a first offer, you can ask the other person, “What do you think a reasonable solution would be?” If the other person asks you to make the first offer, you could sim- ply remain silent, encouraging the other person to make an offer or share further informa- tion (S. Goldberg et al., 2012). When the other person provides an offer, you can use this information to gauge her knowledge, competitiveness, and perceptions about a reasonable solution. Although research on business negotiations suggests that making the first offer leads to financial benefits, research also suggests that making the first offer is associated with higher levels of anxiety and lower levels of satisfaction with the negotiation process (Rosette et al., 2014).

If you decide to make a first offer, consider

• the message you want to send the other person regarding how cooperative, reasonable, competitive, or firm you will be in negotiations;

• how much room you need to leave for making concessions; and • the other person’s cultural expectations and norms regarding the bargaining process.

If you go to an U.S. grocery store and a watermelon is marked at $5, this is not just the opening offer, but also the final offer. Within grocery store culture, store clerks would think it quite odd if you made a counteroffer of $3 hoping to settle for $4. If you go to an open market (souk) in the Middle East, however, haggling over the price of a watermelon might be expected. Similarly, consider an interprofessional team meeting where you are presenting your recommendations for a particular client: Would you inflate your treatment

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recommendations so there is room for bargaining, or would you present a plan that you actually think is best for the client? How would your colleagues react if you went against their norms for discussing recommendations for clients?

Making Counteroffers and Concessions

A counteroffer is a response to the first offer. The first offer and counteroffer bracket the zone for negotiation, as the rest of positional bargaining tends to fall between these first two offers. The target is your desired outcome or solution that you ultimately hope both parties will reach as the negotiated agreement. When you make a counteroffer, make sure that you leave enough room to make concessions and still reach your target. A reservation point or bottom line is the final position that a party will consider before terminating or walking away from negotiations. Remember that your target is your preferred solution, but not neces- sarily your bottom line. You may be willing to accept less than your target rather than walk away from negotiations (L. Thompson, 2015). In positional negotiations, negotiators often conceal their true bottom lines (or even exaggerate their bottom lines) to gain strategic advantages.

During positional negotiations, parties may go through a series of offers and counterof- fers, eventually communicating more realistic goals and expectations. Exchanging offers can be used to demonstrate good faith and build trust. As systems theory suggests, the behaviors of one person in a system affects the behaviors all others in the system. In negoti- ations, the parties mutually adjust their reactions to each other. Reciprocity refers to the pro- cess of exchanging concessions, similar to a game of tit- for- tat. In the rental situation, after the administrator offers to pay $2,000 per month, the landlord may respond with $2,600 creating a negotiation bracket of $2,000 to $2,600. If the administrator compromises by offering $2,100, the landlord may reciprocate with a similar $100 concession, asking for $2,500. Sometimes, the parties will continue to make equal increments, but the increments often decrease in size as the parties move toward final agreement. Although the parties may eventually split the difference between $2,000 and $2,600, this result is not certain. Either party could walk away from negotiations. Alternatively, one party may make more conces- sions than the other party, depending on each party’s bargaining power and other alterna- tives (e.g., other places to rent, other renters).

The tit- for- tat strategy suggests that you should respond to an opposing party in the same manner that the party treats you. If the other party is cooperative, you will recipro- cate by being cooperative. If the other party becomes competitive, you will become com- petitive (Rapoport, 1974). Ideally, this approach encourages both parties to cooperate. Unfortunately, tit- for- tat often turns into a game of chicken. One party makes a threat and the other party responds in kind. The threats escalate and it becomes difficult for either party to back down.

According to positional negotiations, it is important to pace the timing and size of con- cessions to match those of the other party (S. Goldberg et al., 2012). Be patient. If you look anxious to settle quickly, you weaken your bargaining position. The other side knows you are more likely to make compromises. When you make slow, gradual concessions, you increase the perceived value of each concession (Lewicki et al., 2010). “My boss will not be happy with me, but I need to make this tough concession in order to close the deal with you.” Accordingly, the incentive in positional bargaining is to draw things out, to show that you can withstand conflict over a long duration. Delay tactics may also be a sign that the other party has no real interest in resolving the conflict. If the status quo gives one party an advantageous position, that party has no incentive to bargain in good faith (Pruitt & Carnevale, 1993).

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W hen using a power- based approach, if you make compromises, make small conces- sions. Neither party wants to give up more than they have to, so concessions tend to be small. Identify patterns for making concessions, including the increments of the conces- sions and the relative ease or difficulty in evoking concessions from the other party. If the other party is flexible and reasonable, you may respond in kind. If the other person is rigid and unreasonable, you may need to respond in kind— at least temporarily. If both parties are rigid and impasse seems likely, take a step back from the brink. Invite the other party to engage in a more cooperative “negotiation dance” (as Chapter 6 will illustrate). W hen the other party says she has presented a final offer, you will need to assess whether this is truly the final offer, or perhaps a bluff. Negotiations often continue after someone has stated their so- called final offer. Allow the other person to save face and revise the most recent offer.

As you make counteroffers, gauge reactions of the other party, including whether the reactions are genuine or whether the other party is exaggerating his or her displeasure with your counteroffer or using other forms of deception to persuade you. Also, gauge your own tolerance for risk. It may be in your best interests to accept a less- than- perfect offer rather than risk no agreement at all.

During positional bargaining, concede on points that are less important to you and stand firm on matters that are more important. Use concessions to encourage the other person to make a trade- off. Consider two coworkers negotiating their vacation times: “If you cover for me at Christmas, I’ll cover for you over New Year’s.”

Silence may be used to show that you are contemplating an offer and you are not overly eager. When you receive an offer, remain silent for about 30 seconds. Silence gives the other person an opportunity to further explain the offer and perhaps enhance the offer (Lewicki et al., 2010).

Resist the temptation to treat the other’s opening offer as “the best starting point” for negotiations. Rather, determine whether it is a reasonable starting point using objective criteria. If the first offer is not reasonable, you could refuse to negotiate or indicate that you will negotiate upon receiving a more reasonable offer (S. Goldberg et al., 2012). “I under- stand that you want to keep the costs of rent as low as possible. Unfortunately, $2,000 is far below market value. Perhaps you can do some research on what a reasonable rent might be and then we can talk further.” Alternatively, you could take a break in negotiations and then present an offer as if it is the first offer, anchoring the negotiations using a more reasonable starting point.

Nibbling refers to asking for additional concessions when agreement is near. “We’re so close to agreement. There’s just one little thing that I need to seal the deal.” Given the time and energy invested by both parties, the new request may seem relatively small. So, you may make the concession to avoid losing the whole agreement. The problem with accommodat- ing nibbles is that the other person may continue to nibble. Further, asking for “one last concession”— however small— may become the straw that breaks the camel’s back. One way to respond to nibbles is to have your own nibbles ready to request (tit- for- tat). The nibbler may back down rather than risk losing the momentum gained toward agreement. To pre- empt nibbling, ensure that all issues are put on the table early in negotiations and agree that the parties will not raise new issues as the negotiations progress. Focus on the importance of negotiating in good faith (Lewicki et al., 2010).

As you move toward agreement, make your commitments graciously. Although both parties have acted as competitors during negotiation, agreement marks the end of the power struggle. Good will and cooperation may be needed to implement the agreement.

Box 4.1 provides a list of questions to help you prepare for positional bargaining. The questions help you identify your original offer, your target, and your bottom line. They also

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help you prioritize by identifying what is essential and important, versus what is merely desirable (Carrell & Heavrin, 2008). The questions also help you identify items that are of less importance, ones that you are willing to compromise or trade in exchange for items of more importance to you. In positional bargaining, you want to have a clear sense of your priorities as well as those of the other party. The challenge (and for some, the fun) is that both parties may resist sharing their true priorities to gain tactical advantage over the other.

As the forgoing examples suggest, positional bargaining presents many challenges, par- ticularly for helping professionals. Positional bargaining tends to be a protracted, adversar- ial process, leading to compromises rather than greater insight and more creative solutions (Oetzel & Ting- Toomey, 2013). While positional bargaining and compromising may be appropriate for financial issues and commercial dealings, it may be more problematic for conflict between helping professionals and clients, conflict within families, and conflict over the biopsychosocial- spiritual well- being of the people we serve. Still, it is impor- tant to understand the nature of positional bargaining in order to learn how to respond to others who approach negotiation from this perspective. You can either play the game with them or encourage them to play a different type of game, based on one of the other approaches to CR .

POWER- BASED STRATEGIES AND TACTICS

Negotiation power is not simply a capacity that we are granted from birth, but rather a capacity that we can nurture and develop. Power is related to how we think, feel, behave, socialize, and orient ourselves (Walch, 2012). In terms of mastering how we think, we can prepare for negotiations by reflecting on our wishes and needs, by prioritizing our goals, and by thinking about which strategies are most likely to lead to fulfillment of our goals: What have I learned from past experience; what can I learn from the research on negotiation

BOX 4.1 PREPARATION FOR POSITIONAL BARGAINING

1. What is your original position? have you already disclosed this? If not, how will you

disclose it?

2. What is the other party’s original position?

3. What are your top priorities for negotiation (essential items)? Which items are

important, though not essential? Which items are desirable but could be easily

exchanged for more important items?

4. What concessions are you willing to make? Under what circumstances will you

compromise?

5. What is your bottom line (or reservation point) for negotiation? Under what cir-

cumstances might you disclose your bottom line?

6. What is your target for a negotiated agreement?

7. What is your best estimate about the other party’s bottom line?

8. What information will you share with the other party?

9. What information will you keep to yourself ?

10. What information do you hope to obtain from the other party?

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effectiveness? In terms of mastering how we feel, Chapter 1 has identified mindfulness and other strategies to help us manage emotions such as anxiety, resentment, hurt, and anger. To pursue our goals, we need to balance our emotions with reason. Mastering how we socialized includes strategies for connecting with others and building relationships. If we use trickery to win a negotiation, the long- term consequences can be ruinous; you may gain a reputation for dishonesty that will not only hurt your relationship with the other party in the current negotiation, but also make it difficult for others to trust you and want to work with you. Mastering our negotiation behaviors includes learning and practicing specific skills and strategies, including communication skills. Mastering how we orient our- selves refers to making deliberate choices about whose concerns we focus on: our own, our negotiating partner’s, our communities,’ or society’s at large? (Walch, 2012). The following sections focus on behaviors (strategies and tactics) that you may develop and use to incor- porate power- based negotiation.

Tilting the Process in Your Favor

If you want to gain power over the outcome of negotiations, controlling the process can be crucial. Power- based negotiators can tilt negotiations to their favor by maneuvering process issues such as the location, timing, participants, and ground rules for negotiation. Consider a Veterans Administration (VA) hospital that is negotiating with the government for greater funding for mental health services. The VA can gain a competitive advantage by hosting negotiations at the hospital, a setting where the government officials may have a psychological or tactical disadvantage. The hospital controls access to facilities such as rest- rooms, kitchens, and photocopiers. If negotiations go past suppertime, the hospital nego- tiators might enjoy a delicious meal in private quarters while entertaining the government negotiators with substandard cafeteria food. The hospital can also use the location to show government officials how insufficient funding affects its patients and staff.

Other ways to slant the process include outnumbering the other side at the nego- tiation table, scheduling negotiation times that are disadvantageous to the other side, or designating some of your demands as preconditions to negotiating (Menkel- Meadow & Wheeler, 2004). Government officials, for instance, might lock themselves into a position prior to meeting with the hospital by passing an annual budget. The budget may limit the government’s flexibility in negotiations, giving the government greater negotiation power (S. Goldberg et al., 2012).

In addition to having more negotiators at the table, you can also strengthen your posi- tion by including negotiators who will play particular roles. In a classic good cop/ bad cop scenario, one person plays a tough, intransigent negotiator while the other plays a friendly, reasonable negotiator (S. Goldberg et al., 2012). Consider a group home sce- nario in which the home director and home social worker meet with a youth who has been acting up. The director states in an angry tone, “You better clean up your act or you will be grounded for 6 months!” The director leaves the room, allowing the social worker to engage the youth in a friendly manner. “ Wow, is he upset with you! Let’s sit down and figure out what’s going on so that you won’t need to be grounded.” The youth may be more likely to cooperate with the social worker, fearing that she will be in a worse situa- tion if she has to deal with the director. Although this approach can provide leverage to the social worker, consider the ethics behind how the youth has been manipulated into submission.

A final method of tilting a negotiation process in your favor is to assume certain roles for the negotiation process. Offering to take minutes or write down the terms of agreement, for instance, provides you with the opportunity to frame the minutes or agreements in a

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manner that you believe is appropriate. To maintain the trust of the other party, you will need to write the minutes or agreements in a fair and reasonable manner. Still, you con- trol the initial wording of these documents. Your writings will anchor the other’s thoughts about what was agreed.

Knowing and Strengthening Your Alternatives

BATNA refers to the Best Alternative to a Negotiated Agreement. When assessing your BATNA, you may ask, “If we do not achieve an agreement through negotiation (e.g., direct discussions), what other course of action will lead to the best outcome?” Knowing your BATNA helps you evaluate your bottom line or walkaway point. Assume a client claims you have committed malpractice by providing an inappropriate mental health diagnosis and referral for treatment. This issue could be resolved in several venues, for instance, a private discussion between you and the client (i.e., direct negotiation), a discussion mediated by your supervisor, a court trial, or arbitration. Prior to negotiating with the client, you could assess what type of result you would expect in each of these forums. If you believe that a mediated discussion would result in an apology and no compensation for the client, but a judge or arbitrator would likely award the client $10,000, then the client’s BATNA may be either going to court or arbitration. Because arbitration is generally less expensive and faster than court, the client may identify arbitration as his BATNA. If, during negotiation, the client says he wants $20,000 for pain and suffering, you may be unwilling to agree because the BATNA is much lower. Conversely, if the client asks you for $5,000, you may be more willing to settle because it is less than your BATNA. This analysis is simplified, as specific outcomes have been assigned to each alternative. In real life, the expected outcome of court, arbitration, mediation, or any other process may be more uncertain (see Appendix 1 for further discussion of assessing alternatives through the use of decision trees). Note that the client’s BATNA and your BATNA can be different. In the forgoing case, the client may be view arbitration as his BATNA; your BATNA may be having your supervisor mediate the dispute.

The stronger your BATNA, the stronger your bargaining power. If your agency fires you for breaching client confidentiality, your alternatives include negotiating, walking away, looking for another job, and suing for damages. If you have a strong case based on your legal rights, your BATNA may be going to court. Because your BATNA is strong, the agency should be willing to negotiate a favorable severance package. The agency will want to avoid court.

In contrast, consider a situation in which you are in a less powerful position: The gov- ernment decides to deregulate your profession, believing that money can be saved by hiring nonprofessionals and by closing down your regulatory body. Assume that government has support of the general electorate. What are your alternatives to negotiation with govern- ment? Your profession could initiate a strike, but public support would not be with you. You could go to court, but there is no basis in law to reinstate your professional status if the government decides to deregulate. You could mediate, but government has shown no willingness to cooperate. Because your BATNA is weak, the government can take unilateral action, with little concern for your interests.

Using a power approach, you could take steps to strengthen your BATNA. For example, create a public awareness campaign to educate the electorate about the advan- tages of licensing in your profession. With public support, the potential effectiveness of a strike improves. By gaining relative power, you may be able to bring the government to an interest- based negotiating table. Alternatively, you could take steps to weaken the gov- ernment’s BATNA. The government’s BATNA is taking unilateral action to deregulate the

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profession. Governments obtain their legitimacy through democratic processes. Although the government was elected and has the legislative authority to pass such laws, changing laws without consultation puts their legitimacy into question. By questioning the morality of the government’s process, you weaken its BATNA and encourage it to engage in public consultation (a form of negotiation).

Within power- based negotiations, parties may use posturing, suggesting they are ready to walk away from negotiations because they could achieve more of what they want outside negotiation. Note that BATNAs are based on perceptions, and these per- ceptions can be manipulated. By convincing the other person of the strength of your BATNA, you may entice the other person make concessions. Alternatively, you could highlight the weakness of the other person’s BATNA. For instance, if the client claiming malpractice has little money, you could remind the client about the high costs of hiring an attorney. Conversely, the client might remind you that he can hire an attorney on a contingency basis (i.e., the attorney only charges the client if the client wins the mal- practice lawsuit).

Ripeness refers to choosing the best time to negotiate (Mnookin, 2010). W hen con- sidering BATNAs, one alternative is to delay negotiations rather than negotiate now. By delaying negotiations, you may create a situation in which the other party is more likely to make concessions or agree to your terms. Consider a hospital discharge plan- ner who meets a patient to discuss her upcoming hip replacement surgery. By meeting the patient upon admission, the discharge planner hopes to have effective plans in place by the time the patient is ready for discharge. Assume the patient says she will not need help upon discharge, as she can care for herself. The discharge planner may decide to delay further discussions until after surgery. Once the patient has surgery, she may have greater insight about her needs for discharge, making it easier for them to negotiate a discharge plan.

Although knowing and using BATNAs has been presented in this chapter as a power- based strategy, we will revisit the use of BATNAs in the context of interest- based negotia- tion in Chapter 6. Regardless of your approach to negotiation, it is helpful to assess what you and the other party can do (individually or separately) if you are not able to come to agreement in negotiation.

Gathering and Managing Information

Access to and control over information is an important source of power. Consider a life coach who confidently informs a client, “I charge $700 per hour, which is the going rate and well worth it for the services you will receive.” If the client has no other information about “the going rate” for life coaches, the client may be more likely to accept the life coach’s fee structure. If the client has access to information about lower fees charged by comparable life coaches, then the client is in a better position to negotiate.

In power- based negotiation, each party has an incentive to be secretive. Because the object of power- based negotiation is to win, information becomes a valued commodity. Neither party wants to share information— particularly their bottom lines, weaknesses, or pressure points. However, each party wants to learn as much about the other to strengthen its own bargaining power. Sometimes, conflicts are exacerbated because parties are sup- pressing relevant information. In a child protection case, a parent may be reluctant to share information about his AIDS status, not wanting to the child protection worker to think that he is too sick to care for the child. If the parent is withholding relevant information, then how can the child protection worker make an informed decision about the welfare of the child?

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Given the importance of information for decision making, gathering information is a vital negotiation strategy. Prior to meeting the other party, you may want to gather as much information as possible about the other party:

• What does the other party want to achieve through negotiations (i.e., motivations)? • What is the other party’s bottom line? • What is the other party’s timeline for concluding negotiations? • What sources of power does the other party command? • What options for solution might the other party consider? • What is the other party’s negotiation style and reputation? (Lewicki et al., 2010) • What are the other party’s negotiation strengths and weaknesses?

Although you may be able to gather information prior to meeting with the other party, you may need to gather additional information during direct negotiations. During conflicts, some people want to make their points strongly, firmly, and right away. Tactically, it may be advantageous to learn about the other party first. Show you are interested in what they have to say. Ask a lot of questions (Hoefer, 2016). Pay attention to the other party’s verbal and nonverbal behavior. If a client is upset with me, I do not want to start by defending myself. I want to know what specifically has caused the client to be upset, how upset the client is, and what the client wants me to do to correct the problem. If I start telling the client how I will redress the problem before I understand the client’s perception of the problem, I may offer concessions that I do not have to make.

When sharing information, some power- based negotiators use strategic ambiguity, shar- ing partial information that leaves ample room for interpretation. Assume Nurse Ratchet informs patients on a psychiatric ward that they might be able to earn extra privileges if they stop arguing. By using ambiguous language such as “might,” Nurse Ratchet avoids making a promise but alludes to making one. Similarly, she could tell patients that she is “not com- pletely opposed to extending the curfew times.” In this scenario, she gives the impression that she is willing to be flexible, but she has not shared exactly how flexible she would be and what the patients would need to demonstrate to achieve extended curfews.

Bat listening (or echolocation) refers to sending a signal and carefully listening to the other party’s response before to determining your next move (Hoefer, 2016). An agency administrator floats a trial balloon, an idea for staff to consider without making any com- mitments. The administrator suggests, “I wonder if some of our staff would like to consider job sharing.” Sending this message allows people to talk about their needs, so this strategy is not simply a power play. However, the administrator does not share her own view on the subject, so she is maintaining control over information about her own positions.

As you negotiate, be aware not only of the information that others are sharing, but also information that they may not be sharing. Open communication is discussed as an important CR strategy in many sections of this textbook. When people come from a power- based approach, however, they are typically motivated to remain secretive or controlling of information.

Persuasion Strategies and Skills

Persuasion refers to the art and science of using communication to influence the beliefs, attitudes, or behaviors of others (Perloff, 2013). In a negotiation context, persuasion some- times means convincing the other person that her self- interest is not what he thought. Persuasion may also involve lessening the other person’s attachment to certain beliefs, val- ues, or assumptions. Persuasion techniques include providing information, making cogent

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arguments, and helping the other person reassess her perspectives (Druckman & Diehl, 2006). Persuasion can be differentiated from coercion in that persuasion allows free choice, whereas coercion involves actions that restrict free choice (e.g., imposing punishments or sanctions). The literal meaning of “persuade” is to make something sweet to another person (Gregg, 2012). To enhance the effectiveness of persuasion, it is important to learn about the other person, including what types of messages and communication strategies are more likely to be effective. By understanding the ways that people think about issues, we can learn how to affect their thoughts and actions. Consider a conflict between people who identify as liberals and conservatives. When trying to persuade the conservatives, one might appeal to their sense of authority and order. When trying to persuade the liberals, one could appeal to their value for equality and social justice (Feinberg & Willer, 2015).3

Cialdini (2009, 2012) identifies six principles of persuasion: reciprocity, scarcity, like- ability, authority, consistency, and consensus. Reciprocity refers to the social norm of giving back or responding to people in kind. If you scratch my back, then I will scratch yours. Reciprocity builds on social exchange theory and game theory (“tit- for- tat”) in that it rec- ognizes the sense of social obligation that people have when someone acts nicely toward them. During negotiations, people are more likely to say “yes” to you if you shake hands upon greeting them (Cialdini, 2009). The simple gesture of shaking hands symbolizes con- nection and partnership.4 Similarly, if you treat people well by greeting them kindly, asking them how they are, and showing interest in their concerns, you build social capital. Have you ever wondered why waiters ask you whether you enjoyed your meal and offer you mints just before presenting you with a bill? Research suggests that simply offering a mint results in higher tips (Cialdini, 2012).

Reciprocity may be particularly helpful when trying to engage clients who are man- dated into services through the criminal justice or child welfare systems (Murdach, 2008). Helping professionals possess many “social resources,” commodities, or qualities that cli- ents may perceive as beneficial to their well- being. When a professional offers support, cooperation, positive reinforcement, or approval, clients may feel indebted and there- fore, more likely to cooperate. Helping professionals may also offer tangible help, such as financial assistance, legal information, and assistance with housing and transportation resources. By offering services that help clients attain their goals, professionals can gain the cooperation of clients (Hepworth et al., 2013). Although using social resources to gain the cooperation of clients may sound manipulative (and contrary to principles of client self- determination), exchange- based approaches respect clients’ freedom to negotiate and may actually empower them with more choices (Murdach, 2008). After all, what possible objec- tion could one have about being nice to clients?

Scarcity refers to the principle that people tend to assign greater value to resources that are in short supply (Cialdini, 2012). Often, people want what they cannot have— or what is difficult for others to obtain. Consider a manufacturer of smart phones that produces a lim- ited initial supply of new phones. The sight of people camping out to purchase a phone from this limited supply heightens the perceived value of the phones. Alternatively, consider an

3 If you wanted to persuade legislators to fund restorative justice programs to keep more youth offenders out of jail, for instance, you could use different arguments depending on their political orientations. For conservatives, you might highlight the ability of restorative justice to keep people out of jail, saving taxpayer dollars while still holding people accountable for their actions. For liberals, you might emphasize the biases in the traditional criminal justice system and how restorative justice is more likely to treat minorities with equality and respect.

4 Historically, shaking hands also symbolized that you had laid down your sword or other weapon.

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agency that provides its services for free. Although the agency wants its services to be avail- able to people regardless of their ability to pay, people may not view the services as valuable because they are being offered for free, without limitation. If an agency has a long waiting list and charges for its services, potential clients may view its services as scarce and more valuable.

Likeability refers to the notion that people are more likely to be persuaded by some- one they like rather than someone they dislike (Cialdini, 2012; Druckman & Diehl, 2006). Recall that, according to attribution theory, people tend to assign negative motivations to people who are different and positive motivations to those who are similar (Wilmot & Hocker, 2014). Thus, if a client or colleague views you as someone with similar values, eth- ics, goals, and life experiences, that person is more likely to cooperate with you (Lewicki et al., 2010). Before getting down to business in negotiating, you might want to exchange personal information and identify your similarities. “I also went to Conflictia High School. Do you remember when … ?” Other strategies that you can use enhance likeability include demonstrating high levels of courtesy and consideration, as well as presenting yourself in a friendly and pleasant manner (Brodsky, Griffin, & Cramer, 2010). As therapists know from research on building a therapeutic alliance, the keys to developing positive work- ing relationships are unconditional positive regard (respect), genuineness, and empathic understanding (Rogers, 1957). When ingratiating or flattering others, remember that genu- ineness is crucial (Lewicki et al., 2010).

Authority refers to the principle that people tend to follow the advice or recommenda- tions of people who are credible and knowledgeable (Cialdini, 2009). Accordingly, you can enhance your persuasion power by signaling to others what makes you an expert. For some audiences, knowing that you have a certain educational background, professional certifi- cations, or licensure may encourage them to view you as an expert. For others, it may be more important to stress your practical experience. When making recommendations about a parolee, for instance, you might say, “In my 18 years of working with people with pedo- philia, I have found …”

As a potential expert or authority figure, consider what theory, research, or knowledge you can use to support your positions and persuade the other party. As you gather infor- mation, identify sources that are credible, unbiased, reliable, fair, and directly relevant to the matters in conflict (Barsky, 2012). Consider an agency dispute over whether to use cognitive therapy for patients with schizophrenia. Anecdotal information is not as strong as empirical research using generally accepted scientific and statistical methods. To say, “I used cognitive therapy with Mr. Skinner and his distress reactions to his auditory hal- lucinations dissipated significantly,” is not as persuasive as saying, “In an empirical study of cognitive therapy with 124 people with schizophrenia, 78 percent reported a decrease in their distress associated with auditory hallucinations.” When determining the types of arguments you will make to support your positions, consider the nature of the audience you hope to persuade. In the preceding situation, you are trying to persuade professional colleagues. Because they understand and value empirical research, these types of support arguments are appropriate. In a court setting, judges are persuaded by factual evidence, details, logic, and precedent (Guberman, 2014). When trying to influence policy makers, elected officials may be more responsive to information about the views of voters than by science or precedent. Compelling stories, emotional appeals, and pure passion may also be persuasive (Daniels, 2013). Although some professionals prefer to present themselves as rational and nonemotional, you may enhance your persuasiveness through tactical displays of emotion (e.g., disappointment, frustration, or enthusiasm).

Aristotle identified the preceding rhetorical approaches as ethos, logos, and pathos (Sproat, Driscoll, & Brizee, 2012). Ethos is akin to the principle of likeability, the perceived

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character of the person presenting the information. If the person has a reputation for hon- esty, fair dealing, and other virtues, the person is more likely to be persuasive. Logos refers to the logic or rationality of the person’s argument. Providing relevant statistics, listing pros and cons, and analyzing issues from an objective perspective add to the person’s persuasive- ness. Pathos entails use of passion or emotion, connecting with the other person through the use of emotional language. Pathos addresses intangible factors such as feelings, convic- tions, and inspirations (Sproat et al., 2012).

When determining which approaches to use, consider the culture of the people you plan to persuade. Clients from some cultures may be persuaded by titles such as psychologist, whereas clients from other cultures may not hold psychologists in high esteem (because of stigma about mental illness or lack of appreciation for their educational and professional backgrounds). People from high- context cultures may be persuaded through question and answer processes (e.g., Socratic inquiry), whereas people from low- context cultures may be more amenable to demonstrating your points through actions rather than words.

Consistency refers to acting in a regular or stable manner, thus demonstrating reliability and dependability (Cialdini, 2012). Within helping relationships, consistency means treat- ing clients in a particular manner. Through consistency, clients learn what to expect of their professionals, as well as what is expected of them. Many people equate consistency with honesty and integrity. Thus, people are more likely to trust you if you act in a consistent manner. If a family counselor provides similar recommendations to clients over time, they are more likely to be persuaded by the counselor. The counselor could also persuade clients by encouraging them to be consistent with what they have already said or done. When cli- ents agree to a list of treatment goals, for example, the counselor might refer back to the list of goals to reinforce their commitment to these goals. When people make commitments, the incentive is to follow through. Backing down on commitments may be perceived as being dishonest or unreliable. The strategy of consistency encourages people to continue the status quo. If you wish to persuade people to abandon the status quo, you will have to help them overcome their tendencies toward consistency.

Consensus refers to the tendency for people to want to fit within the norms, views, and expectations of others (Cialdini, 2012). Thus, to be persuasive, identify ways in which your positions coincide with the values, beliefs, and standards of relevant comparison groups. When trying to persuade professional colleagues, a guidance counselor might reference school policy or a code of ethics for guidance counselors. When working with clients from a particular religion, a helping professional might provide examples related to the religious teachings and traditions of people from that religion. Group counselors often use con- sensus to persuade clients. By developing group norms, group goals, and group activities, group counselors are encouraging clients to behave in a particular manner.

Box 4.2 lists a range of persuasion skills. Although the list is long, do not attempt to use all or even most of them in a particular negotiation. Using particular skills well is more important than trying to incorporate all the skills in a single process.

Ethically Questionable Strategies and Skills

Although one might question the ethics of any power- based strategy, the strategies explored in this section are particularly dubious. Despite the saying, “All’s fair in love and war” (Smedley, 1894/ 2013), strategies that manipulate, coerce, or trick people can be questioned from the perspectives of fairness, self- determination, honesty, and respect. This section presents four types of ethically questionable strategies: stonewalling, attacking, deception, and acting in bad faith (S. Goldberg et al., 2012). As with other power- based strategies presented throughout this chapter, I am not advocating their use. I am presenting

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BOX 4.2 PERSUASION SKILLS

1. Demonstrates having heard the other party before actively trying to persuade

2. Allows self to be persuaded by sound arguments (after checking for assumptions or

automatic reactions to what the other is saying)

3. Identifies areas of agreement

4. Articulates own position, rights, interests, or beliefs

5. Uses “I” statements to express personal feelings, values, or ideologies

6. Builds on the other’s ideas, values, or interests

7. Uses language the other party can accept

8. highlights information the other party has overlooked (avoiding direct contradic-

tions to help save face)

9. Asserts positions or interests without becoming harassing, threatening, or manipu-

lative (unless these are consciously selected strategies)

10. Backs up opinions with objective facts, accurate information, and clear logic (e.g.,

identifying reliable sources for information; being consistent and credible).

11. Uses appropriate emotional displays to support statements, without detracting

from them (e.g., expressing strong convictions, hope, sadness, compassion)

12. Deals directly with arguments from the other party rather than ignoring, discount-

ing, or side- stepping around them

13. Frames options or offers in a manner that is attractive to the other party

14. Uses vivid stories, metaphors, or symbolic language to connect personally or to

foster a particular social construction about key issues (e.g., glass ceiling, hitting

bottom).

15. Links arguments with principles, beliefs, or perspectives held by the other party (appeal

to the other person’s sense of what is right, moral, noble, or culturally appropriate)

16. Demonstrates having considered both (or all) sides of the issue (providing credibil-

ity to the core argument)

17. Partializes complex arguments into components that are more easily understood

18. Uses repetition to emphasize key points (Lewicki et al., 2010)

19. Uses questions to invite the other party to draw insights or conclusions

20. Actively engages the other party in discussion (speaking with rather than talking at)

(Lewicki et al., 2010)

21. Acts in a manner that the other party does not expect (e.g., when perceived to be

angry, be calm; use changes in vocal tone and volume; make unexpected requests to

stimulate creative thinking)

22. Emphasizes key points at beginning and end of one’s presentation (taking advan-

tage of primacy and recency effects on the other’s memory and interpretation)

23. Uses vehicles for communication that fit with target audience (e.g., face- to- face vs.

Facebook, telephone, texting, online social networks, or other communication

technology)

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them so you will know how to identify and respond to them. In this section, I provide defi- nitions and examples of ethically questionable strategies. In the following sections, I will discuss responses and ethical issues for a range of power- based strategies.

Stonewalling Stonewalling refers to deliberately delaying or refusing to deal with the other party’s concerns as a negotiation strategy. Stonewalling is a type of conflict avoidance, used as a deliberate method of putting the other party at a disadvantage. When negotiators use stonewalling, they do not announce they are using this strategy; rather, they conceal their reasons for not dealing with the issues in dispute. Consider a patient who has been committed involuntarily to a psychiatric facility. The patient wants to be discharged as soon as possible. She presses for a meeting with the psychiatrist who is responsible for determining whether discharge is appropriate. The psychiatrist postpones meeting with the patient so she has no opportunity to negotiate release. Although the psychiatrist is refusing to deal with the patient’s concerns, the psychiatrist is not open and honest about the reasons for delaying the process. When people are not forthcoming about why they are avoiding negotiations, it is difficult to assess and understand their motivations.

Stonewalling is strategically effective when one party’s needs and interests are being denied, but the other party has no pressure to resolve the conflict in the immediate future. In collective bargaining, for instance, management may delay negotiations knowing that the union’s main concern is higher salaries. As long as management delays negotiation, it does not have to pay higher salaries. As a strike date looms closer, however, management has a greater incentive to settle the issues (so that it does not lose business and income during the impending strike). Thus, deadlines may be used strategically to pressure others into negotiating sooner rather than later. “We need to resolve this conflict by October 31 or I will take this case to court.” “If I am not admitted to your program by March 1, then I will report you and your agency to the licensing board.” In some situations, deadlines are artificially imposed by one party and can be renegotiated. In other situations, deadlines are fixed.

A snow job is a method of stonewalling by flooding the other party with information or documents. Given all the information that the party needs to read and digest, the nego- tiation process is slowed considerably (Lewicki et al., 2010). A government oversight is investigating financial improprieties of a social agency. The agency overwhelms the agency with documents so that the agency cannot make any decisions before the next election.

24. Demonstrates patience and persistence as appropriate to the situation

25. Uses humor appropriately (to foster positive feelings, to de- escalate a heated argu-

ment, or to convey a serious message in an interesting, indirect manner)

26. Uses props, photos, charts, or other images to convey information visually

27. Adjusts voice qualities to enhance message and persuasion technique (e.g., use of

passion vs. logic)

28. Avoids behaviors that may convey dishonesty (e.g., smirking, averting eyes)

29. Avoiding signs of disinterest or separation (e.g., crossing arms, body turned away)

30. Adapts presentation and use of persuasion skills as appropriate to the other per-

son’s culture, beliefs, and ways of learning.

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The agency hopes that a new government will be elected and the investigation will be dropped.

Attacking Attacking refers to the use of force, violence, or verbal aggression to incite fear and submis- sion by the other party. In other words, an attack is the coercive use of power designed to impose one’s will and positions on the other party. During negotiations, attacks may take a number of forms including threats, harassment, intimidation, and exploiting weaknesses:

• Threats are commitments to punish others if they do not accept your position. Threats are more likely to influence the other party if that party views the threats as harmful, significant, and credible. Credibility depends on whether it seems reasonable that the threats can and will be carried out (Lewicki et al., 2010). Telling a client you will withdraw services unless he complies with your wishes, for instance, will have little value if the client knows you are bluffing. Threats may produce compliance in the short term. However, they may also generate resentment, resistance, and withdrawal. Under certain circumstances, threats may be viewed as legitimate. For example, the criminal justice system is essentially a system of threats: Laws are established; if people break the law, they can expect to be punished. This type of threat has legitimacy because it has the general support of society and because the nature of the punishment fits the crime. Before making threats, helping professionals should consider what will happen if the other party refuses to comply. Consider a child protection worker who informs a parent that she will never see her child again unless she deals with her depression. If the parent makes some genuine attempts at treatment but continues to experience depression, is the protection worker going to follow through on her threat to deny access? One of the downsides of making threats is that it is hard to undo a threat with- out losing face. The worker may want to allow access, but needs a way to save face (i.e., not be seen as weak, waffling, or incompetent). The worker could save face by not- ing that the situation has changed and she needs to rethink the situation. “Although you continue to experience depression, you have made some progress. Perhaps with the help of your siblings we can work out a plan for supervised access with your chil- dren.” Although backing down from a threat can be embarrassing, finding a way to back down graciously from a threat may be more beneficial than following through (Lewicki et al., 2010).

• Harassment refers to annoying other people until they succumb to your wishes (“Harassment,” n.d.). Examples of verbal harassment include making comments that are rude, condescending, mimicking, or sarcastic. Examples of physical harassment include making unwanted sexual advances, invading the other’s personal space, dis- rupting activities, or blocking the other’s path. As with threats, harassment may pro- duce compliance, but it harms the relationship between the parties. W hen people are harassed over a long period, they often rebel (Pruitt & Carnevale, 1993). Consider a client who creates a nuisance whenever he does not get his way. For instance, a men- tal health agency tells him that he is on a waiting list for services. He calls the intake worker several times a day, hoping the worker will give in and move the client higher on the waiting list. The cliché suggests, “The squeaky wheel gets the grease;” some people will make as much noise as possible to gain attention and get their way. Unfortunately, the attention one receives is not always positive. In the aforementioned situation, the intake worker and agency may inform the client that they cannot accept him for ser- vices because of his pattern of harassing behaviors.

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• Intimidation refers to instilling fear or making others feel timid (“Intimidation,” n.d.). Examples of intimation include displays of intense anger, yelling, waiving a fist, using rude or aggressive language, speaking in a dominating or patronizing tone, or referring to the other person’s beliefs or wishes in a condescending manner (Lamontagne, 2010). During a case conference, a caseworker suggests that the agency waive fees for a particu- lar client who has lost her job. The administrator says, “That’s ridiculous.” The admin- istrator’s demeaning comment suggests the caseworker is crazy or unreasonable, thus silencing the caseworker. Others also become reluctant to challenge the administrator’s position, fearing they will also be publicly humiliated (Wilmot & Hocker, 2014). Some forms of intimidation are unintentional. Consider a physician who uses complex medical terminology to explain treatment choices to a cancer patient. The physician may not be aware that the patient is simply acquiescing to whatever physician accepts because the patient feels too shy to ask for plain language clarifications. Although intimidation may cause people to acquiesce or make concessions, intimidation may also lead to retaliation or escalation of the conflict (Harinck & Van Kleef, 2012).

• Exploiting weakness refers to manipulating others by taking advantage of privi- leges such as social status, financial resources, political clout, or cognitive ability (S. Cohen, 2013; M. Martin, 2015). During child custody negotiations, one parent indi- cates he will “out” the other parent (telling her boss that she is lesbian) unless she fore- goes her claim to sole custody. The owner of a dilapidated apartment building refuses to make basic repairs, knowing the impoverished tenants do not have sufficient finances or political clout to sue the owner or enforce fire safety regulations. A psychotherapist exploits a client’s cognitive abilities by exaggerating risks of the client’s behavior, convinc- ing the client to make changes that the psychotherapist determines are best for the client.

In some conflicts, negotiators use attacks intentionally, knowing that their words and actions will destabilize, weaken, or coerce the other party. In many conflicts, people are unaware that they are using attacks. Accordingly, threats, intimidation, harassment, and exploitation are not defined by the intentions of the person who uses these behaviors, but rather by the effect on the other party.

Deception Deception is the use of misinformation or lack of full disclosure to gain advantage over the other party. Deception often includes concealing information or camouflaging the truth (Walch, 2012). For example, a patient comes into an emergency room wanting imme- diate assistance. The triage nurse asks if the patient has been using drugs. The patient claims he has never used illicit drugs, hiding the fact that he has been using prescription drugs for recreational purposes. The patient, thinking he will receive treatment more quickly, with- holds this information. Another patient comes into the emergency room acting irrationally, hoping that appearing unstable will motivate the triage nurse to prioritize her for treatment (S. Goldberg et al., 2012).

In some situations, certain forms of deception are condoned, and even expected. In poker, for instance, players may bluff, pretending they have a better hand than they actually possess. Alternatively, players may sandbag, pretending their hand is worse than it actually is. In either case, deception is viewed as an acceptable strategy. In business and legal nego- tiations, parties may also bluff or sandbag, not wanting to disclose their true bottom lines (Fleck, Volkema, Pereira, Levy, & Vaccari, 2014).

Attitudes toward honesty and deception have a cultural component. In some cultures, for instance, withholding information about the seriousness of a patient’s health condition

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might be deemed appropriate in order to preserve hope (Pergert & Lützén, 2012). Although medical professionals may view withholding pertinent medical information as inappropri- ate, they should also consider the patient and family’s beliefs about maintaining hope or avoiding emotional distress. The family may view withholding information as beneficence (doing good) rather than causing harm (Pergert & Lützén, 2012).

In the context of helping relationships, one form of deception is feigning a problem. Clients may simulate or exaggerate concerns to affect the professional’s assessment and persuade the professional that certain forms of help are needed. A client may also use deception by giving false praise to win favor with the professional.5 Alternatively, a client may fake irrationality to scare a professional into compliance (S. Goldberg et al., 2012).

The biggest risk of using deception is how it affects trust (Pergert & Lützén, 2012). When people detect the dishonesty, they may infer the other person lacks morality or cred- ibility (Fleck et al., 2014). Once trust is breached, it is difficult to repair.

Acting in Bad Faith To understand acting in bad faith, it is useful to understand what acting in good faith means. Acting in good faith means acting in a moral and trustworthy manner, not just telling the truth, but following other expected standards of fair dealings (Legal Information Institute, n.d.- a). Conversely, acting in bad faith refers to behaving in a manner that contravenes such norms. A person acting in bad faith has ethically questionable motivations for his actions. What is considered fair and appropriate depends on the context, including the ethical stan- dards held by the professionals involved in the negotiations. Examples of acting in bad faith include

• missing appointments when key issues are to be negotiated; • retracting or reneging on a commitment (e.g., not following through on an agreement); • making commitments outside negotiation that limit your ability to deal with the issues

in negotiation (e.g., promising a supervisor that you will deny service to a client, and then meeting with the client as if you had not already made a decision about service eligibility);

• designating certain demands as preconditions to negotiations rather than allowing the parties to negotiate those issues in negotiations;

• raising demands as negotiation progresses (S. Goldberg et al., 2012); • violating ground rules established by the parties (e.g., to keep negotiations private and

confidential); and • terminating negotiations suddenly, without conveying your plans or true concerns to the

other party.

As with other ethically questionable tactics, the other party may lose trust and refuse to negotiate (Lewicki et al., 2010). Further, the ongoing relationship may be damaged, mak- ing it harder for the parties to work together in the future.

5 Often, negotiators will win more in their self- interest by being nice than by being mean. Power- based negoti- ators may stroke the other party’s ego, show respect, and act humbly, not from altruistic beliefs but because they can achieve more favorable terms (Menkel- Meadow & Wheeler, 2004). As the cliché goes, “You can attract more bees with honey than with vinegar.”

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RESPONDING TO POWER- BASED STRATEGIES AND TACTICS

The preceding sections describe various power- based strategies and tactics so you will know how to identify them. Now it is time to consider ways in which you can respond to power- based strategies, including how to neutralize or manage unethical negotiation behaviors. Potential responses range from raising the parties’ awareness about the types of strategies being used, to focusing on future relations, to identifying common ground, to playing simi- lar power games, to appeasing the other party, to protecting oneself, or changing the game. The following sections explore each of these strategies.

Raising Awareness

When you suspect someone is using power, particularly in a coercive or disrespectful man- ner, your initial inclination might be to fight power with power (Mnookin, 2010). If you feel angry, intimidated, frustrated, or scared, the first strategy to consider is raising awareness— including your own awareness as well as that of the other party. Rather than responding immediately, take a time- out to compose yourself and consider how to respond. Reflect on your emotions and biases. Remaining open to the possibility that you can work things out with the other party. Know that you can only control your own responses, not those of the other person. Use the mindfulness strategies described in Chapter 1 to center yourself, get- ting in touch with your beliefs, motivations, and underlying concerns.

Although taking a time- out could include separating for a period, constructive use of silence may also be an effective technique. A client hurls a racial slur at you. You take a deep breath. You remain present and silent. The silence provides you with an opportunity to pro- cess your thoughts and feelings. The silence also sends a strong message to the client that what she has said is troubling. The silence provides her with an opportunity to self- correct, perhaps retracting or apologizing for the comment.

An alternative to silence is to call out the power- based strategy (Lewicki et al., 2010). “You aren’t playing the good cop/ bad cop strategy, are you?” Identifying the tactic explicitly informs the other person that you are aware of his strategies. Even if he denies using this strategy (feeling too embarrassed to admit it), he might avoid use of this strategy in the future, knowing his strategy is less effective once it has become apparent to the other party.

When someone makes a particularly hateful or intimidating remark, you could say, “I’m not sure I heard you properly. Could you please repeat what you said?” Whether or not the person repeats what he said, the question raises awareness about the anger, unfairness, or other concerns stemming from the original statement. Remember that people may be unaware that they are using power, even ethically questionable uses of power. Use caution about imputing bad intentions for other’s behaviors. A person may raise a voice, make a slanderous comment, or use other intimidating behaviors without intending to do so. In these cases, simply raising awareness about the use of power may help the other person change his behavior.

Avoid making direct accusations or contradictory statements such as, “You can’t intimi- date me!” Use questions to facilitate awareness about the use of power or insight into the effects of particular negotiation behaviors. “When you say I’m an idiot, how do you think it makes me feel?” You can put the issue on the table in a direct but nonaggressive manner. “I am sensing that you are avoiding me. Perhaps we could talk about the impact of delaying negotiations.” As attribution theory suggests, people tend to assign negative motivations when they feel hurt by others. To avoid putting the other person on the defensive, it is important to focus on behaviors rather than motivations. Also remember the value of mov- ing forward in a positive manner.

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Another strategy for raising awareness is role reversal. Assume you think your boss is withholding information about the agency’s resources in order to avoid giving you a long- overdue raise. You might say, “I understand that you are concerned about the agency’s bud- get constraints [pause]. If you were a frontline worker like me, how might you feel about not having access to information about the agency’s revenues or expenses?” If the boss still says you have no right to this information, you could discuss how sharing the information would be valuable to the negotiation process.

Discussing the purposes underlying a strategy may also help the parties gain a better understanding of why the particular strategy is being used. During a case conference, for instance, a team leader may use authoritative strategies to demonstrate she is in control. Underlying her actions may be a lack of confidence. She may be the youngest, newest, or least experienced member of the team. You might engage her (privately) in discussions about how she can gain the confidence of the rest of the team through more collaborative problem solving. This leads us to the next strategy, focusing on future relations.

Focusing on Future Relations

Exerting power through intimidating, harassing, deceiving, or other coercive strategies might help a negotiator “win” a particular battle. Still, the negative effect on the parties’ ongoing relationship often outweighs the immediate gain. By helping the other party understand the potential impact of her behaviors on the relationship between the parties, you may be able to persuade the person to move toward collaboration, or at least reject the most toxic forms of power- based negotiations. As President Lincoln said, “The best way to defeat an enemy is to make him a friend.” Mental health professionals know that building a therapeutic alliance (positive working relationship) depends on showing the client genu- ineness, empathy, and unconditional positive regard (Rogers, 1957). Withholding informa- tion, ignoring other’s feelings, intimidating, and other power- based strategies run counter to these principles.

Consider a person who adopts dishonesty or other unethical strategies to maximize personal gain. By focusing the person on the benefits of a positive future relationship, he may gain insight into how engaging in conflict in a more respectful, honest manner can actually maximize personal gain— particularly over the longer term. Help the other person see how maintaining a good relationship can help him reach his goals, maintain respect, fos- ter ongoing support, and avoid escalation of conflict (Fleck et al., 2014). “If we can be more open and honest with each other, we can develop a better working relationship.” Without making threats, you could also discuss the negative effects of a poor relationship (e.g., dis- trust, stressful interactions, difficulty doing the work of the agency or fulfilling the needs of the client). “I’m concerned that if we let this conflict spiral out of control, the office environ- ment will become toxic for both of us.”

One of the challenges in talking to someone about unethical strategies is how to avoid putting him on the defensive. Rather than blame the person, build a golden bridge— a con- nection or meeting point that is highly appealing to both parties. The first step in build- ing a golden bridge is tuning into the underlying psychological needs or processes that are affecting his negotiation behavior. For instance, is he acting out of fear, pressure from others, or stress? Then, help him in a manner that saves face rather than causes embarrass- ment (S. Goldberg et al., 2012). Provide the other person with yes- able offers. Consider Steve, a newly appointed supervisor who treats supervisees in an autocratic manner. Dawn recognizes that Steve may be acting this way because of lack of confidence. Rather than embarrassing Steve by saying he lacks confidence, Dawn meets with him to discuss the challenges of being a new supervisor. She asks how they can work together to ensure that

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he is successful. In doing so, Dawn models collaborative CR and shows him how working together can enhance his chances of success as a supervisor.

When building a golden bridge, it is vital to identify and address the other person’s underlying motivations (Fleck et al., 2014). Consider a client in an assisted living facility who is constantly abrasive with staff, hurling insults and mocking them. If staff members determine that the client’s behavior reflects his need for more attention, they can work with him to find more positive ways of obtaining attention. “Mock me all you want. I have a teenager, so this makes me feel at home [smile and pause for response]. Now, if you really want to get my attention, I’d love to hear you play the piano.” Opening with self- deprecating humor de- escalates the tension. Then, turning the client’s attention- seeking behavior into a positive helps foster a more constructive relationship. Another possibility is to ask the client to imagine a different future. “I know our relationship has had a lot of ups and downs lately. How do you think things would be different if we had more ups and fewer downs?”

Identifying Common Ground

Identifying common ground is related to focusing on future relations, as people who share similar interests, goals, and dreams are more likely to get along (Fleck et al., 2014). Consider a dispute between work colleagues with different political ideologies. Rather than focusing on what separates them as liberals and conservatives, they could focus on their common mandates and roles within the agency. “Regardless of our political differences, we’re all here to serve our clients. We’re all concerned about their mental health and quality of life.” When people share common ground, it is more difficult to treat the other person with disdain or coercion.

Although the parties may have different goals, their goals may be linked (Fleck et al., 2014). Helping the other person see how your goals and destinies are linked can be used to focus both parties on the value of collaboration. “If you raise your voice, I feel angry and want to yell back. If we want to get along in this office, perhaps we can figure out a better way to communicate.” Many agencies have vision and mission statements that identify com- mon values, priorities, and goals. Coworkers can use these documents to focus on what is professionally important to them. When working with clients, helping professionals may refer back to their concerns and goals for work. “I know you want child protective services to return your children. If we’re fighting with each other, it’s hard for us to work together on this much more important goal. How can we join forces so the children can be returned as soon as possible?”

Tit- for- Tat (Playing the Same Game)

As noted in Chapter 2, tit- for- tat refers to responding in kind. If the other person conceals information, then you conceal information. If the other person hires a lawyer, then you hire a lawyer. Sometimes, employing the same tactics as the other person can be used to dis- suade her from using coercive or unethical tactics. Unfortunately, the mindset of “an eye or an eye, a tooth for a tooth” can lead to an escalation of conflict in which everyone is destined to become blind and toothless.

Rather than actually engaging in tit- for- tat power games, you could discuss the possibil- ity of responding in kind. People in conflict do not need to experience the negative spiral of tit- for- tat tactics in order to gain insight into the costs of certain negotiation behaviors. By exploring the negative consequences of each party using power to coerce the other side, you may come to a joint conclusion that there has to be a better way. “We can fight with each other, tooth and nail, but ultimately I’m not sure what either of us will accomplish. Perhaps we can consider a better way to deal with our differences.”

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Changing the Game

Changing the game refers to finding a better way to deal with conflict. The following chapters provide alternate approaches to dealing with conflict, including rights- based, interest- based, and transformative approaches. Rather than delve into the details of these approaches here, let us consider some initial strategies for changing the game. If someone is using misinfor- mation to persuade you, for instance, you could simply ignore the misinformation and use strategies from the alternate approach (S. Goldberg et al., 2012). The advantage of ignoring power- based behaviors is that you do not place the person on the defensive. You simply roll away from a negative pattern of interaction, inviting the person to engage with you in a different manner. “Perhaps we can try brainstorming to see what other options we can consider.”

Although ignoring problematic negotiation behaviors may work, you may notice that a negative pattern of behaviors continues. At this point, it might be helpful to address the problematic behaviors more explicitly. “I’m very concerned about the way we’ve been deal- ing with this conflict. I’m feeling pressured, which makes it difficult for me to continue working together.” Alternatively, if the issue is about honesty, gently encourage the other person to provide honest information (Lewicki et al., 2010). Rather than asking the person to admit lying, allow the other person to tell the truth and save face. “Before we discuss this issue any further, perhaps you could review the facts and clarify any misunderstandings.” Your purpose is to encourage positive negotiation behavior, not to punish the other person for indiscretions.

As noted in the earlier discussion of BATNAs, it may be helpful to discuss the costs of nonagreement. “If we are not able to resolve this issue ourselves, we may be headed to court.” In conflict situations with clients, the consequences of not reaching agreement could also include

• inability to provide effective services, • termination of services with the client, • agency discipline against the worker, or • ongoing conflict and distress.

By having frank discussions about the costs of nonagreement, the parties may recommit themselves to negotiating, but using a different, more effective approach. “Let’s take a step back from the abyss. If we want to avoid the negative consequences of a power- based strug- gle, perhaps we could try an interest- based approach.”

Protecting Self

If you are unable to persuade a power- based negotiator to switch approaches, you could consider protective strategies. These strategies are designed to protect your interests with- out becoming hostile or aggressive. Even if the other person is treating you in a dishonest or disrespectful manner, maintain your honesty, integrity, and reliability. Assert your concerns in a firm but friendly manner (R . Fisher et al., 2011).

If you suspect the other party is acting in bad faith, for instance, you could try a “trust, but verify” strategy. Under this doctrine (based on a Russian saying popularized in the west by President Reagan), one should treat others with respect (not questioning their integ- rity), but still check the truth of the information they are providing (Massie, 2013). One may have healthy skepticism about the issues in dispute without impugning the other per- son and ruining the working relationship. A drug counselor might say, “I know you have

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said that you haven’t used drugs in the past 14 days. I value your honesty. The policy of our residential treatment program is to test all clients to ensure that everyone here is safe. That way, we make it a concern about safety rather than having to decide which clients we can trust.”

In situations of power imbalance, you can protect yourself by taking steps to rebalance or level the power (Lewicki et al., 2010). If the other person has an advantage because of level of legal or medical knowledge, you could bring in an attorney or physician to help you negotiate. If the other person has more power because of connections with influential or affluent friends, you could develop your own networks of support. If the other person has more power because of his position within the institution, you could enlist the support of people from higher in the organizational structure.

“Breakthrough negotiation is the art of letting the other party have it your way” (Ury, 1991, p. 9). Rather than telling the other person your desired outcome, ask questions to allow the other person to figure out the best outcome— and take credit for it. Consider a dispute between a supervisor and therapist concerning whether to involuntarily commit a client with suicidal ideation. The supervisor initially insists that the client be committed. The therapist feels like she cannot challenge the supervisor’s authority, so she says, “I’m not sure what to say in my report. Could you please give me some guidance on how to state the risks?” The supervisor suggests a risk assessment tool, which they proceed to use. They discover the client is at low risk, so they devise a safety plan with the client that does not include committal to a psychiatric facility. The therapist thanks the supervisor for her wisdom and support. The therapist is pleased with the result and the supervisor retains her sense of authority. Clearly, this strategy needs to be implemented in a tactful manner so the more powerful person does not feel manipulated. In the case example, the therapist could genuinely say that she valued the supervisor’s assistance with conducting the risk assessment.

Logrolling refers to trading favors, resources, or promises (Lewicki et al., 2010). Each negotiator receives a quid pro quo (something for something). In power- based negotia- tions, logrolling may be useful in protecting yourself from the egregious forms of coercion or exploitation. Rather than allowing the other person to take advantage of you, you offer to provide the other person with something of high value to them in return for something of high value to you. Consider a colleague who is pressuring you into taking a client that he does not to work with. Rather than responding to the pressure in a power- based manner, you could offer a trade that benefits both of you. “Perhaps we work out a plan that helps both of us. If I accept this client, would you be willing to finish the budget that we’re sup- posed to submit this week.” Logrolling allows each person to promote the other’s agenda or wishes, even though they may view each other as adversaries.

If you are negotiating with someone who is acting in bad faith, you could also protect yourself by withdrawing from negotiations (Fleck et al., 2014). The other person has no right to treat you with dishonesty, disdain, disrespect, or intimidation. In implementing the strategy of withdrawing, let the other person know you are thinking about withdrawing unless certain dynamics in the negotiation process change. “If the yelling continues, I feel like I have no other choice but to end today’s session.” Avoid all or nothing demands, such as “My way or the highway.” By leaving room for flexibility and diplomacy, you allow both parties to work on a solution to the issues in the process.

Appeasing the Other Party

Appeasement refers to acquiescing or giving into the other person’s demands (Coleman et al., 2012). As with accommodation, appeasement may be helpful in protecting yourself

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from greater harm. When interacting with an abusive boss, for instance, one might learn to tolerate abusive attacks and disrespectful language. Appeasement often comes with the hope that eventually things will change for the better, for instance:

• If I do what she wants, she’ll learn to like me and treat me better. • I’m only in this field placement for 3 more months, so I must do whatever I need to do to

survive until the end of the term. • She’s under a lot of stress right now; things will get better when the agency gets

reaccredited.

Although conditions may change and treatment may improve, appeasement may lead to being abused or mistreated even further. One of the most scrutinized examples of appease- ment in international relations is British Prime Minister Neville Chamberlain’s policy of appeasement toward Nazi Germany. Despite Adolf Hitler’s pattern of aggression in the 1930s, Chamberlain did not want to provoke war. Appeasement did not work. Many histo- rians suggest that appeasement emboldened the Nazis, leading to further aggression. What we do not know is whether engaging the Nazis in war before Britain and its allies were ready might have led to worse outcomes (McDonough, 2010). Likewise, it is easy to criti- cize individuals for tolerating abusive situations. Although appeasement allows abuse to continue, one needs to consider whether any other choice is better. Appeasement may be useful as a protective strategy for the short term, allowing the abuse survivor to develop resources and opportunities to escape the abuse in the longer term.

THE ETHICS OF POWER- BASED STRATEGIES

In extreme cases, the only rule in power negotiations is that the party with the greater power wins. In most interactions, however, the parties have a tacit understanding about the rules of the game:

• In a war— You may use conventional weapons, but not nuclear weapons. • In a boxing match— You may punch the head and upper body, but not below the belt. • In a debate— You may use harsh words, but no physical violence.

Although these rules of the game establish limits on the types of power that can be used, the ultimate goal is still personal victory. For helping professionals, one could question whether any power- based strategies are ethical. If the purpose of power- based strategies is to influ- ence other people for one’s own benefit, then these strategies are designed to treat people as a means to an end. From a deontological perspective (focusing on ethical duties), one could argue that power- based strategies are unethical because they violate the principle of treat- ing all people with dignity and respect (Kant, 1964). If I trick a colleague into supporting me for a good cause (e.g., preventing elder abuse), my actions may be considered unethical regardless of the positive outcome that my trickery produces.

In contrast to deontology, teleological or utilitarian perspectives suggest that the ends may justify the means (Mill, 1863). Consider a client who is homicidal, planning to kill his former girlfriend the next time he sees her. The client asks you if you know where she is liv- ing. You say, “No,” even though you do know. Is your lying justified because it prevents the client from killing his former girlfriend?

The following sections highlight ethical concerns in negotiation related to honesty and integrity, informed consent, justice, and proportionality. Note the difference between strat- egies that may be ethically questionable versus those which are patently or categorically

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unethical. The ethicality of some strategies may depend on the context (for instance, bluff- ing is expected in poker, but it would clearly be inappropriate for a clinician to bluff about a cancer patient’s prognosis). Also, note how ethically questionable tactics may be viewed by different people. You may think it is OK to persuade a client to leave an abusive relation- ship; however, the client may feel unduly pressured and disrespected.

Honesty and Integrity

Honesty and integrity refer to acting in a truthful and reliable manner. They are core ethical principles among various helping professions (Barsky, 2010; G. Corey et al., 2015), vital to developing and maintaining positive therapeutic alliances with clients. If deception became common practice among helping professionals, how could vulnerable clients and the broader community trust them? Thus, power- based strategies such as withholding informa- tion, exaggerating, or misleading the other party may not only violate the principles of hon- esty and integrity, but also place trust- based helping relationships in peril. Proponents of these strategies, however, might argue that not using these strategies puts the helping pro- fessional (and her clients and causes) at a strategic disadvantage. They contend that some forms of lying may be ethically justifiable, even necessary, while other forms of lying are clearly unethical (S. Goldberg et al., 2012). A counselor who bluffs about his intent to walk away from negotiations, for instance, could argue that the bluff was meant to elicit better conditions for clients; further, nobody was hurt by the lack of honesty and full disclosure. Conversely, if a counselor lies to a client about his intent to follow through on making a referral for the client, the client’s interests would be hurt and the counselor’s misrepresenta- tion is not ethically justifiable.

The role of honesty and full disclosure in negotiations has been the subject of great debate among practitioners and theorists. Essentially, there are three broad approaches:

1. A utopian negotiator is an idealist who is always open and honest with others, even if it hurts (views honesty and good faith as ethical imperatives).

2. A metopian negotiator is an individualist who is self- absorbed and does not care about the effect on others (views others as means to an end).

3. A pragmatic negotiator is a realist who decides what is best in each circumstance, know- ing that sometimes it is best to be honest because “what goes around, comes around” (Menkel- Meadow & Wheeler, 2004).

For pragmatists, the following points provide guidance on the use of strategies that may violate the principles of honesty and full disclosure:

• At the outset of negotiations, develop process guidelines, rules of fair play, or negotiation conventions defining which types of strategies are acceptable and which are not (e.g., poker players agreeing that it is OK to bluff; labor negotiators agreeing that it is OK not to disclose their bottom lines in the early stages of negotiations; parties involved in a divorce agreeing to full disclosure of financial assets).

• Before using deception or lack of full disclosure, consider whether other (more honest and open) strategies can be used to obtain the same ends (e.g., rather than falsely telling a client her prognosis is fine to protect her from anxiety, find a way to prepare and tell the client in an honest, respectful manner).

• If you plan to withhold information, be honest about what type of information you are concealing (e.g., “Our agency policies prohibit psychologists from releasing raw data scores for these tests due to concerns about how they might be misinterpreted.”).

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• When weighing the risks and benefits of using inaccurate or incomplete information in negotiations, consider both the short- and long- term risks and benefits (including the potential impact on the parties’ reputations and ability to work together in the future).

• Identify what relevant laws and agency policies say about the particular strategy you are considering. Consider the potential legal and agency consequences for breaching a law or policy. For instance, if one party enters a negotiated agreement based on a fraudulent misstatement of a material fact, then that agreement may not be enforceable; further, the person who provided the inaccurate information could be liable for damages caused by the fraud (Legal Information Institute, n.d.- b).

• Consider how you will feel about yourself if you use the strategy. Consider how the other party will feel about you if she finds out you used the strategy. Consider how your fam- ily and community would feel about you if they find out you used the strategy (Lewicki et al., 2010).

• Consider whether you are acting for a good cause. Ensure that feelings such as revenge, anger, contempt, or defensiveness are not driving you to act dishonestly.

• The suspicion that others are using dishonesty or concealment does not necessarily justify your use of these strategies. The Golden Rule suggests, “Do unto others as you would have them do unto you,” rather than, “Do unto them as they have done unto you.” Acting with honesty and integrity can be effective and ethical even when others are act- ing unethically or in bad faith. Demonstrating honesty, reliability, and good faith may act as a positive role model for the other party (as per social exchange theory and the principle of reciprocity described earlier).

• It is particularly important to avoid dishonesty or concealing material information from those with whom you have a fiduciary relationship, a relationship in which the other per- son trusts you and may be particularly susceptible to exploitation due to lack of informa- tion, cognitive disability, or other source of vulnerability (Birrell, 2011).

In preparing for negotiations, consider situations in which you might be tempted to with- hold information or provide inaccurate information. Identify alternate responses that allow you to maintain your honesty and integrity. If someone asks you about your bottom line, for instance, you might say, “I would like to share my bottom line, but I do not want to put myself at a disadvantage. If you are agreeable, perhaps we can both write down our bottom lines and share them with each other. If we have room for agreement, then we can continue negotiating. If not, we’ll need to discontinue.” If someone asks you about your deadline for coming to agreement, you might say, “Honestly, I have not determined my deadline yet.”

Informed Consent

The ethical principle of informed consent indicates helping professionals are responsible for ensur- ing clients have sufficient information about the nature of the services offered, as well as the risks and benefits of their treatment options. When negotiating treatment services, therefore, it is crucial that helping professionals provide honest and accurate information (as described earlier). Further, helping professionals should ensure that consent is free and voluntary (G. Corey et al., 2015). Coercing clients into accepting services clearly violates the prin- ciples of informed consent. Consider, however, what degree of nudging or persuasion may be ethically acceptable? A university student with a learning disability is reluctant to par- ticipate in a program for students with disabilities. The student feels shame about having a learning disability. Would it be ethical for the education counselor to use persuasion tech- niques to nudge the client into the program? After all, the program is for the client’s own good. From an ethics perspective, voluntary consent is based on respect for the dignity and

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autonomy of the individual. In other words, clients should be free to choose what treat- ments or interventions they deem appropriate. The principle of beneficence, doing good, sometimes conflicts with autonomy, as interventions that professionals might deem “good” for the client may not be perceived as good or appropriate by the client.

Taken to the extreme, voluntary consent could mean professionals should have zero influence on clients. Most helping professionals believe in mutuality or shared decision making, meaning that both the client and professional have roles in the decision- making process (S. Cohen, 2013). Although the client maintains ultimate decision- making responsibility, the professional may play a number of roles in helping the client make the decision: assessing the clients problems and needs, identifying potential interventions, pro- viding the client with information about the risks and benefits of each intervention, and helping the client make informed decisions. In each of these roles, the professional has the power to influence the client’s treatment decisions.

Drawing the line between appropriate and inappropriate influence depends on a number of factors, including the context of practice. Child protection workers, probation and parole officers, and mental health professionals working with suicidal and homicidal clients each have legal mandates to protect people from harm. These mandates can super- sede a client’s right to self- determination and informed consent. Physicians and other medical specialists are expected to provide medical advice, directly influencing client choices but not taking away their choice. In group homes, residential treatment facilities, and halfway houses, staff members use systems of rewards and punishments to encour- age prosocial behavior. Still, clients may choose whether to cooperate (Murdach, 2008). In contrast, mediators are supposed to remain neutral and not impose any pressure on clients. In all contexts, negotiation can be used to allow clients to make choices, even involuntary clients. Giving clients more choice or discretion enhances their autonomy and self- determination.

Forms of influencing clients that cross the bounds of ethicality include

• coercion— taking away the client’s right to choose, for instance, through threats of force (S. Cohen, 2013);

• manipulation— influencing people through deception, exploiting cognitive limitations, or taking advantage of emotional weaknesses; and

• oppression— pressuring clients to do something that helps the professional, but goes against the client’s best interests.

Social Justice

The principle of social justice suggests professionals should promote fairness and act against dis- crimination, oppression, and other injustices (International Federation of Social Workers, 2012). Power may be used to promote social justice in a number of manners: to gain the attention of those ignoring you or your cause, to put pressure on the other party to end oppression, and to alter the balance of power to ensure that the process of negotiation is fair (Wilmot & Hocker, 2014). So, do situations of discrimination or oppression jus- tify the use of force, deception, or violence? As noted earlier, if you believe that the ends justify the means, you may conclude the use of such tactics is ethical. If you believe that it is important to act ethically (and that the ends do not necessarily justify the means), then force, deception, and violence are not ethical, even if the intended consequences are good. From this perspective, force, deception, and violence are dehumanizing (Kurtz & Ritter, 2011).

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Nonviolence involves the use of power to promote justice; however, the power is used in a manner that shows respect for the dignity and worth of all people— including one’s so- called opponents. In promoting nonviolence, Gandhi agrees with Kant’s deonto- logical view that the morality of the act (rather than the outcome) is key (Fernée, 2014). Nonviolence allows parties to advance their causes in an assertive manner, without killing, maiming, or engaging in violent uses of force. As Chapter 10 describes in greater detail, nonviolent strategies include civil disobedience, strikes, sit- ins, protests, fasting, vigils, and street theater (Weber & Burrows, n.d.). These strategies can be used to apply pressure and promote change, while maintaining the principle of respect for the dignity and worth of all people— including those with whom we may disagree. Critics of nonviolence point out that nonviolence may not safeguard people from violence. Although nonviolence has the potential for moral suasion, aggressors may continue to use violence, even killing those using nonviolence (Kurtz & Ritter, 2011).

Proportionality

Some people adopt proportionality as a pragmatic alternative to nonviolence. Whereas nonviolence eschews all forms of violence, proportionality suggests that it is ethical to use force to protect oneself from violence and aggression, so long as the force used is pro- portional to the violence or aggression threatened by the other party (McMahan, 2014). Proportionality suggests that power or force may be used in a restrained manner (Mayer, 2015). Rather than acting out of anger or other emotions, proportionality requires respond- ing in a calm, reasoned, and measured manner. Proportionality also suggests that force should be used for defensive purposes, not to oppress or take revenge against the other party. From this perspective, the ethics of using power is determined by both the intent and the consequences of the actions.

Consider a program director with concerns about a clinician who is “moonlighting,” working evenings in private practice. If the clinician’s private practice raises a conflict of interest, the director may be justified in sanctioning the clinician to ensure compliance with the agency’s noncompetition policy. In terms of proportionality, the question is, “What level of sanctioning is appropriate?” Firing the clinician may be too severe. A lesser repri- mand may be appropriate. The director could also use power by indicating what further consequences would ensue if the clinician continues to violate agency policy. Accordingly, the director may design consequences in an ethical manner, ensuring they are proportion- ate to the behaviors that the director plans to correct (Mayer, 2009). Giving people advance notice about the consequences of their actions also demonstrates respect, allowing them to make informed decisions about their behaviors in light of potential rewards or sanctions.

Maintaining proportionality is particularly difficult when both parties feel threatened by one another. In a group home, for example, staff may feel endangered by a burly youth who has impulse control issues. At the same time, the youth may feel vulnerable to the rewards and sanctions that group home staff may impose (e.g., earning privileges by main- taining a clean and orderly room, losing privileges for any emotional outbursts). Thus, even if staff believes its sanctions are proportional, the youth may think the sanctions are unduly harsh. The youth may then respond by escalating conflict, which in turn could result in staff escalating its consequences. Proportionality should be judged from an objective perspec- tive: Would an independent third party view the use of power as a reasonable response to the problematic behavior. Proportionality suggests that any sanctions should be realis- tic, focused, predictable, and transparent (Mayer, 2009). Sanctions are realistic if they are capable of having the intended effect. The group home needs to understand the limits of power- based sanctions. The youth has an impulse control issue, so problematic behavior

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may continue regardless of which sanctions are used. In terms of focus, sanctions should be geared to a particular purpose. If a youth knows she can earn rewards for particular behav- iors, she can choose to act in a way to receive those rewards. If rewards and sanctions are based on vague or overly broad purposes, then it is harder for the youth to make informed choices. Predictability means the use of power should follow a particular pattern so that the party to be influenced knows what to expect in particular situations. Transparency requires the party using power to be open and honest about what type of consequences will be used, and under what circumstances. For enduring conflicts, power- based rewards and sanctions are often used to manage or limit conflict. They may not be capable of ending the conflict, as they do not deal with the underlying causes or sources of conflict. In the group home scenario, staff may be able to manage the youth’s problematic behavior through conse- quencing. Unfortunately, the consequencing does not address underlying concerns such as psychological distress, social skill deficiencies, or psychiatric problems.

* * * * * To help you think critically about the ethicality of various power- based strategies and tac- tics, Box 4.3 provides a list of questions to consider. When working through these ques- tions, consult with a supervisor or colleague to help assess the situation, alternatives, and best course of action to pursue. Remember that negotiations often extend beyond a par- ticular encounter. If you are considering strategies or tactics that are ethically question- able, consider using other strategies or tactics first, saving the questionable ones as a last resort. As you work through the following chapters, you will learn additional approaches to

BOX 4.3 DETERMINING THE ETHICS OF POWER- BASED

STRATEGIES AND TACTICS

• Which specific power- based negotiation strategy or tactic are you considering (e.g.,

persuading, debating, playing tit- for- tat, being intransigent, bluffing, sandbagging,

distorting facts, passively misleading, threatening, stonewalling, using force, mak-

ing an extreme first offer, making small concessions, nibbling)?

• What are you hoping to achieve by using this strategy or tactic (specific rationale or

purpose; desired outcomes; potential benefits)?

• What are the potential risks for using this strategy or tactic? (Consider the potential

effect on the outcome, relationship, legal consequences, and ethical issues, includ-

ing honesty, integrity, informed consent, and respect for the dignity and worth of

all people.)

• In weighing the potential risks and benefits, does the end justify the means?

(Consider both short- term and long- term consequences, including how the other

person will respond.)

• Are the behaviors used to implement the strategy or tactic ethical? If not, which

ethical principles do they violate?

• What other negotiation strategies and tactics might be more effective and more

ethical?

• how will you feel about yourself (including my sense of personal morals and profes-

sional ethics) if you use this strategy and tactic?

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negotiation, including ones that promote ethical principles such as respect, honesty and full disclosure, informed consent, and empowerment.

KEY POINTS

• Power- based negotiations are adversarial interactions in which each party uses an array of strategies and tactics to influence the other for their own benefit.

• Although power- based strategies can help a party maximize personal gain, they can nega- tively impact relationships, communication, future conflicts, personal and professional reputation, creativity, and making efficient use of resources.

• In positional bargaining, each party takes a stance and argues in favor of that stance. Each party is strategic about making offers and concessions, hoping to gain as much as possible.

• Power- based negotiators can tilt CR processes in their favor by ensuring the timing, loca- tion, participants, structure for decision making, and division of responsibilities work in their favor.

• Negotiators can enhance their power by strengthening their Best Alternative to a Negotiated Agreement (BATNA) and by weakening the BATNA of the other party.

• Negotiators can enhance their power by gaining access to information (e.g., concerning possible solutions, the other party’s bottom line, and the other party’s negotiation style), and by limiting access to information that the other party may desire.

• Negotiators can enhance their persuasion power through the principles of reciprocity, scarcity, likeability, authority, consistency, and consensus.

• The ethics of power- base negotiation strategies should be assessed in light of principles such as fairness, self- determination, informed consent, honesty, and respect.

• Ethically questionable negotiation strategies include stonewalling, attacking, deception, and acting in bad faith. The ethics of particular strategies depend on the context, includ- ing the codes of ethics of the professionals, agency mandate and policies, and the cultures of the clients or other negotiators.

• Helping professionals can respond to power- based strategies and tactics by raising aware- ness about the types of strategies being used, focusing on future relations, identifying common ground, playing similar power games, appeasing the other party, protecting oneself, and changing the game (or approach to negotiation).

DISCUSSION QUESTIONS AND EXERCISES

1. RECIPROCAL INFLUENCES: A doctor- patient relationship is a system. Describe the power relationships between you and a particular doctor (past or current): Describe ways in which each of you have influence over one another. What types of power advan- tages does the doctor have over you? What types of power advantages do you have over the doctor?

2. POSITIONAL TACTICS: Review the following scenario and identify examples of an opening offer, target, bottom line, bracket, counteroffer, concession, and anchor: Pasquale is a probation officer working with Connie. The terms of her probation require her to have anger management classes. Pasquale suggests that she participate in a 12- week group program in a town 20 miles from where she lives. Connie says that she does not have a car so that plan would be impossible for her to complete. She says she found an online anger management program that she can do from home and complete in about 4 hours. Pasquale says the program has to be in person. He offers to provide bus

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passes, hoping that Pasquale will agree to go to a program that is at least 10 weeks long. Connie says she is shy and does not like groups. She offers to take an online program that will take 10 hours to complete. Pasquale repeats his concern, “The group must be in person.” Connie asks if she can go to individual counseling for the 10 hours. Pasquale agrees.

3. CONCESSIONS: Assume the union in your workplace is negotiating with manage- ment. They ask for your feedback on priorities for negotiations. W hich of the following would be the highest priorities? W hich of the following are items where you would be more willing to make concessions? W hat strategies would you suggest to your union regarding concessions, disclosing, and concealing information? W hat trade- offs might the union offer management to maximize benefits for all parties? a. shorter work hours (40- hour week rather than the current 44 hours) b. a salary increase of 5 percent c. healthcare insurance with lower deductibles d. more comprehensive healthcare insurance coverage e. two additional days of paid vacation f. paid maternity and paternity leave g. adding a nondiscrimination clause to all agency policies and employee contracts

4. ASSESS AND RESPOND: For each of the following situations, identify (i) which power- based strategy is being used, (ii) what ethical issues arise from using this strategy, and (iii) a useful strategy for responding to the power- based strategy. Provide your rea- soning for each answer. a. Nan is a public health nurse visiting an elderly woman, Wilma, who lives in a small

apartment with 16 cats. Nan says the cats present a public health risk. She asks Wilma to find other homes for the cats or the cats will be taken to a local animal shelter. Wilma calls Nan a nasty cat hater who has no heart, no brains, and no scruples. Nan feels crushed. Her eyes fill with tears.

b. Sheena is supervising Cooper, a couples’ therapist. In a particular case, Cooper seems to be siding with Wanda, while ignoring the concerns of her husband, Hal. Sheena suspects Cooper is having romantic countertransference (amorous feelings) toward Wanda. When asked about his feelings toward Wanda, Cooper denies any feelings toward her. Cooper is sexually attracted to Wanda. He is afraid to disclose these feel- ings, fearing that Sheena will deride him.

c. Tobias (a teenager) was referred to Conrad for counseling because of concerns about anorexia. During counseling, Conrad provides Tobias with strategies for dealing with his eating disorder. Tobias agrees with everything that Conrad suggests, but does not follow through. Tobias is not ready to deal with his eating disorder. Rather than dis- cussing the real issues, he avoids conflict by pretending to go along with Conrad’s advice.

d. Aretha is chief administrator for a long- term care facility for the elderly. Cassie, a case aide, raises concerns about racism among the staff. Aretha says she will deal with it eventually, but she is currently too busy. Each time Cassie raises the issues, Aretha says the issues are important, yet she gives different excuses for delaying action. Cassie suspects that Aretha keeps making excuses hoping that Cassie will stop bothering her.

e. Farrah is conducting a forensic evaluation in a rape case. The accused is a high- profile politician, so there are concerns about the potential for political interference. When Farrah requests certain documents from Stan (the state prosecutor), he floods her with documents. She feels overwhelmed by the quantity of information, much of which is irrelevant or difficult to understand. Stan insists that she submit her forensic

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report in 2 days, which Farrah believes is impossible. If she submits the report late, she will appear unprofessional and if she does a poor job with the evaluation, she will look incompetent.

5. BATNA: Select one of the five preceding situations, and a. Identity at least three alternatives that each party could pursue if they were not able to

reach agreement. Of these alternatives, which is the BATNA? Provide your rationale, weighing the potential benefits and costs of each alternative).

b. Identify two ways in which one party can enhance her BATNA. c. Identify two ways in which one party can degrade the other person’s BATNA.

6. EXTREMELY POSITIVE: Vince is the intake counselor at a residential treatment cen- ter for people with dual diagnosis (especially schizophrenia and substance use disor- ders). Initially, Vince presents all the positive attributes of the treatment center. He has the client sign forms, signifying agreement to treatment and the agency’s policies. Vince then provides the client with a list of agency policies (e.g., confidentiality, consent, expectations of client behavior). Because clients may be ambivalent toward treatment, Vince refrains from explaining specific policies until the client has agreed generally to services. Which power- based strategies is Vince using? Which ethical and clinical issues arise from his practices? Use the questions in Box 4.3 to help analyze this situation.

7. POWER AND JOINT PROBLEM SOLVING: You are working with an agency that serves youth in conflict with the law. The agency receives referrals from the juvenile justice system. Your role is to negotiate a plan with Yulian (age 14) and his parents to deal with underlying problems (including poverty, a learning disability, and conduct disorder) and prevent Yulian from reoffending. If Yulian does not agree to a plan, then he will have to return to court to face charges. Consider the ethics of this model. Is it ethi- cally appropriate to use power to push clients into a joint problem- solving process? Is this constructive use of power or an insidious form of social control? How can you con- struct your negotiation process with Yulian to minimize the ethical concerns regarding consent, self- determination, safety, and respect for the dignity and worth of all people?

8. THOUGHT EXPERIMENT: Assume that you and Cattie (a colleague) are vying for the same job. Cattie indicates that she will post embarrassing photos of you on the Internet unless you withdraw your application for the job. Assume that you respond using a tit- for- tat strategy. What might you do in response to Cattie’s threat? Assume that both of you continue to play tit- for- tat. Identify potential tit- for- tat responses that each of you may make. What is the likelihood of a positive outcome from this negotia- tion approach? How might you respond to Cattie’s original threat in a more effective manner, changing the game?

9. PERSUASION FOR PAY: Paulo is negotiating for a raise. For each of the following quotations, identify whether he is using reciprocity, scarcity, likeability, authority, con- sistency, or consensus to persuade his boss. a. “Thank you for meeting with me, Ms. Springsteen. I know your time is valuable and

I appreciate all the support you’ve given me.” b. “As you know, we serve many Brazilian clients and I am the only Portuguese- speaking

professional at this agency.” c. “You have always treated your employees fairly, including matters related to pay and

working conditions. Because you treat people fairly, you have gained the respect and cooperation of everyone who works here.”

d. “I’ve always tried to be open and honest with you.” e. “I have done some research on pay scales at similar agencies in this state. According to

a government report, the salaries range from $80,000 to $90,000.” f. “I hope that we can agree to a salary that fits with community standards.”

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10. OVERCOMING THE ODDS: Watch the movie, 12 Angry Men (Fonda, Rose, & Lumet, 1957). Analyze the conflict styles and strategies used by each of the jurors in this murder trial. Which strategies contributed to the success ability of Juror 8 (Henry Fonda) to persuade the rest of the jurors?

11. PROCESS POWER: The city has offered a $300,000 grant to a group of domestic violence agencies to enhance their services. Dodie, the director of a domestic violence agency, wants to maximize her influence with the other agencies as they negotiate how to use the money. Identify five ways that she can manage the process to tilt the negotia- tions in her favor. If you were a director of another agency, how might you respond to each of these tactics?

ROLE- PL AY 4.1: “MALPRACTICE MELEE”

Thea is a therapist whose computer was hacked. Confidential information about her client, Colin, was leaked by the hacker to the media. When Colin’s employer (a financial services company) discovered that he had a history of fraud and extortion, Colin was fired. Colin threatens to sue Thea for malpractice by not taking reasonable steps to protect his confiden- tiality (her computer password was “password”). To prepare for this role- play, each person should answer the questions in Box 4.1: Preparation for Positional Bargaining. Each person should also identify five persuasion skills from Box 4.2 to practice and incorporate in the role- play. This role- play will take about 15 minutes to complete.

Debriefing : Who made the open offer? Why? What strategies did the parties use to inform their counteroffers and concessions? Which persuasion skills did each party use effectively? How could each party improve upon at least one persuasion skill?

ROLE- PL AY 4.2: “NEGO TIATING FOR GRADES”

This role- play comprises two roles: a university professor, Dr. Pruett, and an undergraduate student, Sandy Sympleton. Dr. Pruett has assigned Sandy a grade of 85 percent for her final term paper. Sandy needed at least 92 percent to achieve an A for the course. Ordinarily, Sandy would not complain. However, if she receives an A in this course, then she is eligible for a scholarship that will enable her pursue a graduate program in CR . Dr. Pruett believes that 85 percent was a fair grade.

Dr. Pruett should prepare for this role- play by practicing ethically questionable strat- egies, including concealing information, harassment, and not acting in good faith. Sandy should review possible responses to ethically questionable strategies (e.g., raising aware- ness, focusing on future relations, identifying common ground). Add facts where needed (e.g., the university requires a class average of no more than 75 percent; students have a right to appeal their grades to an appeals committee in the faculty). A useful way to pre- pare for negotiations is role reversal— put yourself in the other person’s shoes in order to identify his or her positions, rights, interests, and values, as well as how he or she might be persuaded in negotiation. Set aside at least 40 minutes for this exercise.

Debriefing : If you have ever approached a professor in the past to challenge a grade, which strategies did you use? How were these strategies different from those you used in the role- play? Describe Sandy’s responses to Dr. Pruett’s ethically questionable strategies. What types of responses were most effective? Why?

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ROLE- PL AY 4.3: “INTERPROFESSIONAL IMBROGLIO”

On a number of occasions, the head nurse for oncology (cancer treatment), Olive, has instructed a newly hired nurse, Noreen, to administer chemotherapy to a patient. Noreen has not been properly trained or certified to administer chemotherapy. From speaking with other nurses, Noreen understands that the hospital lacks a sufficient number of properly trained nurses, because of low salaries and high turnover. Although Noreen is concerned about her ability to administer chemotherapy safely, she fears how Olive will respond if she complains. Noreen is still on her probationary period for this job, so her position at the hospital is very tenuous. Noreen decides to meet with Olive to discuss her concerns. She schedules a 15- minute meeting.

To prepare for this role- play, Noreen should use the Negotiation Planning Guide (see Box II.3). Noreen should also consider how she will structure the process, so that she will be in a better bargaining position. Finally, Noreen should select three persuasion techniques from this chapter and determine how she can implement them. Olive should prepare to use three or four power- based strategies, for instance, intimidation, authority, strategic ambigu- ity, and persuasion.

Debriefing : What was the nature of this conflict? How did each party use power to try to influence each other and their ultimate settlement? Which strategies and tactics contributed to effective CR? How are you defining effective CR for this case?

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C h a p t e r f i v e

Rights- Based Negotiation

LEARNING OBJECTIVES

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

• Critically analyze the advantages and disadvantages of a rights- based approach to negotiation.

• Identify and use credible evidence to negotiate conflicts over factual issues. • Apply legal arguments to negotiate conflicts that concern issues of justice, fairness,

or appropriateness. • Discover, develop, and apply objective criteria to negotiate solutions in a fair, ratio-

nal manner.

WHAT IS RIGHTS- BASED NEGO TIATION?

Rights- based negotiation is an adversarial process in which each party tries to prove he is right in the sense of being accurate, appropriate, fair, or consistent with relevant rules and laws. To estab- lish accuracy, negotiators present information, objective facts, or other forms of evidence to prove their case. To demonstrate appropriateness or fairness, negotiators argue their positions in relation to cultural norms, professional values, or other sources of tradition, morals, and ethics. To establish consistency with relevant rules and laws, negotiators make arguments based on pertinent legislation, case law, constitutional, law, agency regulations, or legal contracts. Rights- based negotiation (RBN) is similar to power- based negotiation in that both processes are competitive. Each side views conflict as a win- lose proposition. RBN differs from power- based negotiation in that RBN is designed to be more civilized. Whereas power- based conflicts may be resolved through physical fights, war, coercion, and violence, rights- based conflicts are to be resolved through civil discussion, debate, judicial hearings, or similar processes. RBN tempers the impact of power. Under a rights- based approach, parties may address conflict by appealing to rights such as life, liberty, equal- ity, self- determination, and pursuit of happiness, regardless of how much money, physical strength, or other sources of power that each party possesses.

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The following section explores the pros and cons of RBN. The second section describes the array of rights- based conflict resolution processes. Although this chapter focuses on negotiation, it is important to understand how RBN takes place in the context of these other rights- based processes. The middle sections of the chapter describe RBN strategies in relation to two types of conflicts: What happened, and what should happen now? The question of “what happened” relates to con- flicting beliefs about facts. The question of “what should happen now” relates to conflicting views about how to apply rules, laws, and principles of fairness or appropri- ateness. The final section of the chapter explores how to negotiate new legal rights or rules.

PROS AND CONS OF RIGHTS- BASED NEGO TIATION

Proponents of RBN suggest that it promotes justice and fairness (Barash, 2014). Decisions are made based on objective facts and rational argument. If someone has caused harm to another person or group, that person is held accountable through punishment or being held liable to pay damages or compensation. RBN fits with libertarian and legalistic views of conflict resolu- tion. Critics suggest RBN promotes adversarial relations and stifles creativity (R. Fisher, Ury, & Patton, 2011). To some extent, RBN focuses on the past and who to blame. RBN does not deal with the emotional issues, the underlying causes of conflict, or how the parties can move forward to improve future relations. Further, negotiators are disempowered when they are unable to resolve their rights- based conflicts by themselves and have to turn decision making over to a third party (Bush & Folger, 2005). As you work through this chapter, consider the potential benefits and risks of this approach. In other words, you be the judge.

At its best, a rights approach prevents conflict because everyone knows his or her respective rights. Little time and energy is spent negotiating. For the most part, people comply with the laws tacitly. Accordingly, clear and fair laws promote efficient transactions between people. Rights also temper illegitimate use of power. Laws prohibit various types of violence, coercion, and exploitation. Laws also encourage games of fair play: negotiating in good faith, arbitration, court trial, due process, and so on. In contrast to the Saturday Night Live quotation at the top of this chapter, effective RBN is not about slamming doors, pounding fists, and demanding one’s rights with righteous indignation. Ideally, RBN involves civil discussion or debate, with an understanding that people can assert their rights strongly without becoming rude, violent, or uncivil.

On the downside, a rights orientation favors rules over relationships (Bush & Folger, 2005). Although the rights approach places limits on the illegitimate use of power, the process to resolve disputes is adversarial: my rights versus yours. One side wins; the other loses. The system does not encourage parties to look for creative solutions for their mutual benefit. If a case has to be decided by a judge or arbitrator, the emotional and financial costs are highly taxing on the parties. Parties also lose the ability make decisions for themselves.

BARGAINING IN THE SHADOW OF O THER RIGHTS- BASED PROCESSES

Chapter 4 introduced the concept of Best Alternative to a Negotiated Agreement (BATNA), that is, the best course of action that each party could take if they fail to reach agreement

Sometimes I think you have to

march right in and demand your

rights, even if you don’t know

what your rights are, or who the

person is you’re talking to. Then

on the way out, slam the door.

—Jack Handey (from “Deep

Thoughts” on Saturday Night

Live television series)

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in negotiation. For rights- based conflict, negotiation takes place “in the shadow of the law” (Mnookin & Kornhauser, 1979). In other words, when people are trying to resolve rights- based conflict, they often consider how a court or other rights- based body would resolve their issues. Consider a malpractice situation: Dr. Price is a psychiatrist who misdiagnoses Clint, a client with attention deficit disorder. Clint confronts Dr. Price and insists on com- pensation for damages. If Dr. Price (perhaps with the assistance of an attorney) believes that no court would award damages in this case, Dr. Price may refuse to offer any compen- sation. If Clint believes that a court would declare damages of $1,000,000, then he may demand an amount that reflects this expectation. Because the two parties have vastly dif- ferent expectations of what would happen in court, they are less likely to settle. They may decide to go to court to determine who is right. Conversely, if both parties expected a court would order $50,000 in damages, then they are more likely to settle: Why incur the finan- cial and emotional costs of going to court if the parties know what the findings would be?

Although people often think of court- based litigation as the primary process for deter- mining rights, note that many other tribunals make rights- based decisions:

• A client who is denied welfare could initiate a case with a welfare appeals tribunal. • A person subjected to discrimination could file a case with a human rights commission. • A marine who is sexually assaulted could file charges with the appropriate military inves-

tigation bureau. • A student who experiences bullying could grieve his concerns to the school principal. • A social worker disturbed about the treatment of elders in a nursing home could report

her concerns to the state regulatory body.

In each of these examples, a particular individual or panel is mandated to review the evi- dence and make decisions for the parties. However, the parties could also try to resolve the conflicts through negotiation, based in part on how they believe the rights- based tribunal would determine the issue.

In the forgoing examples, there is a formal system for dealing with rights- based con- flicts. Within families, cultures, agencies, and other social contexts, informal mechanisms and decisions makers may also be used to handle rights- based conflicts (Druckman & Diehl, 2006). When two children fight over who gets to use a remote- control car first, a parent may decide for them. When two families are feuding over perceived insults, an elder from the community might act as an arbitrator. When two case aides are arguing about how to help a particular client, a third case aide might suggest how to proceed. When negotiat- ing privately, the children, families, or case aides may be influenced by how these third par- ties would decide the conflict. If the children believe their mother would ask them to share the toy, they might decide to share it. If the children believe their mother would tell them that the owner of the toy might deny use to the other child, then they may defer to whoever owns the toy (H. Ross, Conant, & Vickar, 2011).

In addition to decision- making processes, some rights- based processes focus on fact finding. In an agency with allegations of improper use of funds, an investigator could be assigned to collect information and assess how the funds were actually used. In a conflict over child custody, a social worker could evaluate the needs of the children and report them to the parents.

Whereas fact finding refers to a process of gathering information or evidence, neutral evaluation refers to a process in which an objective third party gathers evidence, conducts an assessment, and provides the parties with advisory opinions. In a child custody case, an evaluator could provide recommendations for a parenting plan that is in the children’s best interests. In a conflict over intellectual property, two academics could ask a colleague to

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assess the contributions of each person to a research discovery. When the conflict involves legal issues, the evaluator is often an attorney or retired judge who is competent at provid- ing legal opinions. By obtaining neutral evaluations, the parties receive objective evidence and advice to inform their negotiations. Neutral evaluations may also be performed by helping professionals with expertise in particular matters, for instance, a psychologist who specializes in the special education needs of children, a nurse who specializes in nutrition, or a therapist who specializes in the needs of frail elders. Neutral evaluations are not bind- ing on the parties. The parties have an incentive to rely on neutral evaluations and resolve the issues in negotiation, knowing that proceeding to court or another adversarial process can be costly.

Considering how a rights- based decision maker might determine a conflict can help each party gain insight into what a “reasonable” outcome might be. Bargaining in the shadow of the law, however, does not mean the parties must resolve the conflict in the same manner as a judge, arbitrator, or other rights- based decision maker. The parties can use power, interests, or other approaches to guide their negotiations. In this chapter, however, we focus on rights- based approaches.

NEGO TIATING FACT- BASED CONFLICTS

Fact- based conflicts relate to differences over what has happened or what is currently hap- pening (Colorado Research Consortium, n.d.). Your client tells you that she is indigent and cannot pay for services; you believe your client can afford to pay. A psychiatrist claims that a patient’s hallucinations are caused by schizophrenia; an addictions counselor believes the hallucinations are drug- induced. A social work intern believes conversion therapy1 is an effective treatment for gay clients; his supervisor believes that conversion therapy hurts, rather than helps clients. In each of these situations, the parties have disparate views of the facts. The differences in their views may arise from different perceptions, different sources of information, or different appraisals of the information. Some factual conflicts are caused by innocent misunderstandings, careless rumors, or inadvertent miscommunications. These conflicts may be resolved relatively easily, through clear and open communication. Other factual conflicts are rooted in conflicting evidence. These conflicts can be more chal- lenging, as the evidence does not support a single version of the truth.

If the parties are acting in a purely rational manner, then negotiating fact- based disputes may comprise a civil debate where each party presents the best evidence available. After sharing their evidence, the parties may use critical thinking and logic to determine the truth of the matter in dispute; what are the strengths and limitations of each piece of evidence; taking all the evidence into account, what is the most likely description or explanation for what happened? Unfortunately, when people are in conflict, it is often difficult to act rationally and assess facts in a purely objective fashion. The following subsection describes four types of evidence that can be used to support one’s case during fact- based negotia- tions: witness evidence, documentary evidence, real evidence, and opinion evidence. After this section, we will explore rights- based strategies that go beyond presenting evidence. These strategies are particularly useful when emotions, convictions, and attitudes make it difficult for one or more of the parties to negotiate facts in a purely rational manner.

1 A treatment approach designed to change a gay person’s sexual orientation to heterosexuality through means such as behavioral conditioning. Some jurisdictions and some professional associations have banned this practice due to concerns over negative effects on clients.

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Types of Evidence

Witness evidence refers to firsthand observations, including what the person has seen, heard, smelled, tasted, or touched. In a conflict over whether an employee has been stealing sup- plies from the agency, a coworker may provide testimony that she saw the employee leave the office with a bag full of paper and other office supplies. In a conflict over whether a caseworker disrespected a client, the client may provide an account of what the caseworker said to her. The weight given to witness evidence depends on a range of factors including the credibility of the witness, the level of detail provided, and the level of consistency between the wit- ness’s report and other testimony (Barsky, 2012; Dale & Gould, 2014). In the office supplies case, the coworker’s witness evidence may be bolstered by the fact that the coworker was a neutral bystander and had no particular stake in the outcome of the case. In the case involv- ing allegations of disrespect, the client’s witness evidence may be questioned because she is not a neutral bystander and she may hold a personal grudge against the caseworker. During negotiations, the client may need to present corroborating evidence to support her story. Although people may be influenced by witness evidence, they may also question the percep- tion, memory, or motivations of the person providing the testimony. Note that while courts have a rule against admitting second- hand evidence, informal negotiations may involve such information (“My supervisor said she saw you leave the office at 5 p.m.”). Second- hand infor- mation has a number of inherent weaknesses: How does one know if the information was reported accurately, how does one know whether the firsthand observer had accurate per- ception and memory, and how does one know whether the firsthand observer has additional information that might be relevant to resolving the conflict?

Documentary evidence refers to client records, psychosocial assessments, receipts, or any other items that record a particular event. Documentary evidence may include information written on paper, as well as information stored on computers, telephones, videos, or other forms of technology. Although documentary evidence is not infallible, it is often afforded more weight than the oral evidence of a firsthand witness. When documents are recorded at the time of the event, concerns about memory and the accuracy of the information may be less important than those that may arise when a witness provides oral testimony days, weeks, or years after the event took place. Attorneys have a saying, “If it’s not in writing, it didn’t happen.” Another common saying, “A picture is worth a thousand words,” also conveys the strength or value that people ascribe to documentary evidence, particularly photographs, videos, or drawings. Although people can prove the truth of their position by providing an oral witness account, having supporting documentation is often a more persuasive tool in RBN.

Real evidence refers to an object that is relevant to proving the facts in dispute. If a client were accused of bringing drugs to a residential drug treatment facility, then the drugs would be an example of real evidence to prove the case (particularly if the client’s fingerprints or DNA evidence could be found on the drugs). Assume a patient claims that a clinician ripped his shirt. The ripped shirt could be used as real evidence. In criminal law cases, the term “smoking gun” refers to direct evidence of the weapon used to commit the crime. In many cases, there is no clear and direct evidence to prove a case within 100 percent cer- tainty. Therefore, decisions need to be made on the best factual evidence that is available. Sometimes, that evidence is circumstantial, that is, indirect evidence that requires people to draw inferences about the matters in dispute.

Opinion evidence refers to assessments, interpretations, or conclusions that go beyond the presentation of observable facts (Barsky, 2012). Opinions reflect a person’s thoughts or analysis about a situation, as opposed to a simple statement of what the person directly observed. In courts, there is a general prohibition about providing opinion evidence

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because rendering opinions is the job of the jury or a judge (in nonjury cases). Courts allow witnesses to provide opinion evidence only if they are qualified as experts in a field directly related to the opinion. Thus, a psychologist specializing in the effects of trauma could provide opinions about the effects of trauma. A special education teacher with expertise in autism could testify about the educational needs of a child with autism. Courts assess expertise based on the person’s knowledge, education, training, practice, research, and pub- lications (Dale & Gould, 2014). In ordinary negotiations, people feel free to provide opin- ions whether or not they have particular expertise. To strengthen the veracity and weight given to your opinions, you could:

• Substantiate your expertise by noting the particular experience, training, and education that gives you the capacity to provide a valid opinion (Pellizzoni, 2011).

• Describe the facts, assessment process, logic, and calculations that you have used to develop your opinion.

• Use valid and reliable tools for measurement. • Demonstrate how you have based your opinion on objective information and assessment

processes, rather than biases or conjecture. • Use the persuasion strategies and techniques described in Chapter 4 (e.g., using storytell-

ing or vivid narratives, demonstrating likeability, and speaking in terms that resonate with the people you are trying to persuade).

• Identify and present precedent cases where courts or other decision makers came to the same conclusions.

Science and the objective evaluation of facts can be used to facilitate robust decision making (Pellizzoni, 2011). Consider a dietician trying to persuade a client to reduce car- bohydrates. The client may be reluctant to change his diet, believing that he already eats well enough. Rather than simply telling the client to reduce his carb intake, the dieti- cian could explain how she came to this conclusion. “In a meta- analysis of randomized clinical trials sponsored by the National Institutes of Health, the researchers found …” Although having an objective, scholarly source may be persuasive, the dietician may need to go further, using plain language to explain how the research was actually conducted and what meta- analysis means. Rather than just referencing a study, it may be helpful to allow the client to read the study and develop his own conclusions. Even if the client reads and understands the study, the client may still reject the findings. The client may be skeptical or irrational, or there may be conflicting evidence that the client prefers to believe. The following section explores fact- based negotiation strategies beyond simply presenting facts and opinions.

Rights- Based Negotiation: Beyond the Facts

Negotiation over facts is particularly challenging when each person has firmly entrenched beliefs. Consider the debate over climate change. If a person firmly believes that people do not impact air temperatures, sea rise, hurricane prevalence, or other possible indicators of climate change, then it will be difficult to persuade that person otherwise— even if you have what you believe to be “solid research evidence.” Conversely, that person will have grave dif- ficulty convincing you that you are wrong about climate change. As attribution theory sug- gests, in conflict situations, people tend to have a bias toward their own story or version of the truth. Trying to convince one another using fact- based arguments may be a fruitless task. The following strategies may be useful in managing fact- based conflicts, particularly

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when attempts to persuade the other person to accept your version of the truth have been ineffective:

• Identify areas of agreement about the facts, common beliefs, or shared opinions (avoid focusing only on the areas of disagreement).

• Acknowledge that differences in beliefs may be based on honest differences of opin- ion (e.g., based on different experiences, observations, perceptions, memories, and interpretations).

• Demonstrate understanding and respect of the other person’s beliefs despite the differ- ences in beliefs (avoid insinuating the other person is dishonest, stupid, or ignorant).

• Invite the other person to participate in a joint fact- finding mission where both of you collaborate in gathering and interpreting information.

• Determine how both sides can proceed (work together) even if there is no resolution of the factual differences (“OK, we disagree. Now what can we do?”)

These strategies will be explored further in the chapters on interest- based and transforma- tive approaches to conflict resolution.

NEGO TIATING CONFLICTS ABOUT APPROPRIATENESS OR FAIRNESS

Many rights- based conflicts are not based on different beliefs about the facts, but rather different beliefs about what is appropriate or fair. Whereas a dispute about facts focuses on the past (“What happened?”), a dispute about what is fair focuses on the present and future (“What should happen now?” or “What should we do moving forward?”). Of course, there is also a relationship between fact- based disputes and fairness disputes: Before one can determine what is fair or appropriate, one must first determine what the current facts are. In a child protection case, one must first determine if a child is at risk of abuse before deter- mining what type of intervention (if any) is appropriate. As this part of the chapter focuses on appropriateness or fairness, the case examples will be presented as if any factual disputes have been resolved. The following sections explore how to negotiate rights based on the rule of law and other objective criteria.

Asserting the Law

Communities, organizations, and civil societies establish laws and rules to create a sense of order. The rule of law suggests all individuals, groups, corporate entities, and governments are accountable to the laws that govern them (World Justice Project, n.d.). When conflicts arise, they should be resolved civilly, in accordance with the rule of law. The rule of law means that conflicts should not be resolved through violence, coercion, or other processes that infringe the rights of others. Thus, a rights- based approach to negotiation suggests that the parties should identify relevant laws and apply them to the issues to be resolved.

The concept of natural rights suggests that basic human rights are inherent, universal, and inviolable (Locke, 1691). Hence, we have certain rights from birth by virtue of being a human being; for instance, the rights to life, liberty, property, and respect. Unfortunately, just because we have inherent rights does not mean that others will honor them. Most soci- eties and many social organizations have codified their laws, putting them in writing and enacting them through legislative processes. Codifying the law often makes it easier to iden- tify, protect, and enforce our rights. Codified laws take many forms, including constitutional laws, federal laws, state laws, local laws, international laws, case law, agency policies, codes

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of ethics, and contracts. Each source of law may be used to support the rights- based argu- ments of the parties (Barash, 2014). The U.S. Constitution is the supreme law of the nation (see http:// memory.loc.gov/ ammem/ help/ constRedir.html). All other laws must comply with it. If a particular federal, state, or local law infringes constitutional rights or freedoms, then that law is invalid. For instance, many courts have held that laws prohibiting same- sex marriage violate constitutional rights to equal protection under the law; thus, these laws are invalid and unenforceable (Obergefell v. Hodges, 2015). Similarly, federal laws are generally paramount over state and local laws, and state laws are paramount over local laws.

International laws are laws that are enacted by countries through treaties, agreements, declarations, and custom. For helping professionals and the people they serve, some of the most relevant international laws are the declarations and conventions developed through the United Nations, including

• U.N. Universal Declaration of Human Rights (http:// www.ohchr.org/ EN/ UDHR/ Pages/ Introduction.aspx)

• U.N. Convention of the Rights of the Child (http:// www.ohchr.org/ EN/ ProfessionalInterest/ Pages/ CRC.aspx)

• U.N. Convention on the Elimination of All Forms of Discrimination against Women (http:// www.un.org/ womenwatch/ daw/ cedaw/ cedaw.htm)

• U.N. Convention on the Rights of Persons with Disabilities (http:// www.un.org/ dis- abilities/ convention/ conventionfull.shtml)

The rules and principles enunciated in these documents are often used in debates over human rights, particularly the rights of individuals and groups who have been targeted for discrimination and oppression (e.g., the rights to exist, to equality, to respect, to retain peaceful possession of property, to freedom of expression). Consider, for instance, a prison that denies a Muslim inmate access to the Qur’an. If the country does not have laws estab- lishing religious rights, the inmate could use the U.N. Declaration of Human Rights to negotiate access to this religious text as an issue of religious freedom. Although national governments are supposed to comply with international laws, it is often difficult to enforce them because each country maintains its own justice system, including courts, police, jails, and other law enforcement mechanisms (Posner, 2014). Still, these laws provide negotia- tors with moral power. Generally, countries want to be seen as honoring basic human rights, even if they have an extensive history of human rights violations. Also, other countries and nongovernmental organizations may use economic, political, and other forms of pressure to enforce basic rights.

Laws and legal systems are essentially mechanisms to facilitate conflict resolution. Laws codify our rights and responsibilities toward each other. Ideally, laws are clear, publicized, stable, just, and broadly accepted (World Justice Project, n.d.). Clear laws make it easier for parties to negotiate their rights. If the law is hazy or uncertain, the parties do not know which way a judge might decide a particular dispute. In conflict situations, parties have a tendency to view conflicts from their own perspectives, often reckoning that a judge would decide in their favor. “I’m right, so you must be wrong.” If neither party is willing to budge from this position, they may need to go to a judge or other arbitrator to decide which one really is right. Even when laws are clear, they may be open to different interpretations and judicial comment. Because parties typically have little control over how rights are estab- lished or interpreted, RBNs can be frustrating.

Case law refers to legal principles that develop through cases heard by judges. Although the legislative branch of government is primarily responsible for enacting laws, judges are responsible for applying and interpreting laws. During RBN, parties may refer to case

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http://memory.loc.gov/ammem/help/constRedir.html

http://www.ohchr.org/EN/UDHR/Pages/Introduction.aspx

http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx

http://www.un.org/womenwatch/daw/cedaw/cedaw.htm

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precedents, that is, decisions from prior cases that give guidance on how future cases should be determined (Barsky, 2012). According to principles of equality and justice, like cases should be decided in like manners. Assume that a teacher knew of a student with homi- cidal ideation but did not warn a potential victim. The student kills the victim and the vic- tim’s family sues the teacher. If the family knows of a similar case in which a court awarded damages to a victim’s family, then this precedent could be used to persuade the teacher to pay damages. The decisions of appellate courts are binding on lower courts (trial courts or lower appellate courts). Thus, the decision of the Supreme Court of the United States is binding on all other courts; a trial court decision may include persuasive arguments, but its reasoning is not strictly binding on other cases. To counter an argument based on a case precedent, one could argue that the facts of the original court case and the current case are different. The teacher might argue, for instance, that the first case involved a psychologist and patient, whereas the present case involves a teacher and student. As the parties negoti- ate, they would need to consider existing case law, as well as how a judge might determine the current case. If the parties have different expectations of how the court would deter- mine the case, they may need to go to court. Given the costs of court, however, they may decide to compromise. The teacher, for instance, may offer to pay half the damages claimed by the family in return for a release from any further liability. Although people are often reluctant to compromise on their rights (or perceived rights), compromise provides the parties with an opportunity to settle the case in a civil and timely manner.

Agency policies comprise rules for clients and helping professionals. Some agencies, for example, restrict services to clients who are national citizens or immigrants with appropri- ate visas or legal status. How would you respond to an undocumented alien in need of your services? If you resort to a rights perspective and apply the agency policy as written, you must refuse the client. The client and you cannot negotiate away the rules of the agency. If you agree to provide services, you are contravening policy and putting yourself in conflict with the agency. If you believe that serving undocumented aliens is morally right, you could advocate within your agency to change the rules (i.e., recognize a different set of rights).

Codes of ethics may also serve as a source for RBN, particularly when the conflict is over the responsibilities of professionals. Professional codes of ethics include the ethical obliga- tions of professionals toward clients, employers, professional colleagues, and the society at large (Barsky, 2010). Consider a conflict between a suicidal client and a mental health clinician. The clinician wants to hospitalize the client and the client wants to remain free in the community. Upon referring to the clinician’s code of ethics, they may discover that although the client has a general right of self- determination, this right may be abrogated in situations of immediate, foreseeable harm to an identifiable person. Given the client’s urgent suicide risk, the clinician is authorized to take steps to commit the client to a mental health facility despite the client’s objections.

Contracts are exchanges of promises that establish the rights and responsibilities of those who enter the contract. When conflicts arise, RBN may center on the terms of the contract and how they apply in the particular situation. Assume that a client signs a ser- vice agreement allowing a psychologist to contact the client’s physician to gather medi- cal history as part of an assessment process. If the client complains that the psychologist breached confidentiality by contacting the physician, the psychologist can assert she had the right to contact the physician by virtue of the service agreement. When conflicts arise over contracts, the parties could also negotiate new agreements (i.e., determine new rights and responsibilities for each party). Consider a client who initially agrees to participate in a research study but is upset when he is assigned to a control group. He feels that he is being denied treatment. During negotiations, his clinician could offer to provide services, but keep the client outside the research sample so as not to spoil the random sampling process. Many agreements with clients are not intended to be ironclad or unbreakable. Even when a

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client agrees to participate in particular interventions or research, the principles of informed consent suggest that a client has a right to revoke consent (Barsky, 2010). Thus, when help- ing professionals are negotiating with clients, they should respect a client’s change of heart and not try to bind them to previously agreed- on service agreements. Conversely, when professionals agree to provide clients with particular services, clients may expect that the professional will follow through on his contractual responsibilities.

Box 5.1 provides a framework for applying the law in RBN. Essentially, each party identi- fies relevant laws, policies, ethical codes, or other rules and determines how they apply in the particular case. The parties present their best arguments and determine a solution based on application of relevant laws. If they are unable to reach agreement on how the laws apply, they may go to a judge or other decision maker to determine their rights and a just solution for their conflict.

One of the limitations of a rights approach is that conflicting parties tend to minimize or deny each other’s rights (Bland, 2014). As attribution theory suggests, when people see each other as enemies or oppressors, they tend to exaggerate their own rights and concerns, while devaluing or ignoring those of others. Further, there are many situations in which people have conflicting rights that are not easy to resolve. In such situations, both sides may need to accept losses and make key compromises. Consider the situation in South Africa toward the end of apartheid in 1994. If the majority Black population asserted its full legal rights it could have asked for compensation for the years of second- class citizenship, disen- franchisement, humiliation, dispossession, brutal incarceration, and other infringements

BOX 5.1 APPLYING THE LAW IN RIGHTS- BASED NEGOTIATION

1. Which laws, policies, ethical codes, or other rules are relevant to the present conflict?

2. What do these laws, policies, or rules say about your rights?

3. What do these laws, policies, or rules say about the other’s rights?

4. Are the rights of any third parties relevant (e.g., the community’s rights, a child’s rights)?

5. What arguments support your rights?

6. What arguments support the other’s rights?

7. how can you counter the other party’s arguments?

8. If the laws, policies, or rules do not favor your rights, how can you change them

(e.g., initiate law reform processes, advocate changes in agency policy, develop com-

munity support to change rules)?

9. What is the most effective way to communicate your rights to the other party (e.g.,

informal dialogue, formal face- to- face negotiations, exchange of letters)? What are

the advantages and risks of this form of communication?

10. If you and the other party cannot agree on whose rights prevail, how can you obtain

a determination of rights (e.g., court, administrative appeal, arbitration)? (Consider

mapping out your choices using a decision tree, as shown in Appendix 1, to analyze

alternatives.)

11. Would legal advice or legal representation assist your case?

12. What other resources can you use to help assert your rights (e.g., investigator,

ombudsperson, police, community leader, clergy, state officials)?

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of their basic rights. Politically, economically, militarily, and practically, it would have been impossible to attain these rights or solutions in full. Instead of pursuing the impossible, and perhaps further straining relationships with the White minority, South Africa engaged in a truth and reconciliation process that did not insist on full compensation or retribu- tion (Bland, 2014). To forge a better future, South Africans acknowledged the injustices of the past, but decided to work together and focus on resolving its current issues (e.g., governance, unemployment, poverty, education). By putting aside aspirations for attaining certain rights or solutions, South Africans were able to move forward from apartheid in one of the most profound and peaceful national transformations in modern times. Contrast this example with the seemingly intractable conflict between Palestinians and Israelis; although each side has valid claims regarding the harms its people have suffered and continue to suffer, the best way forward may require a less- than- perfect solution with each side mak- ing extremely difficult compromises. Consider analogous situations in the contexts where helping professionals work: For instance, a hospital with a history of discriminating against women decides to end its policy of discrimination; or a boarding school system with a his- tory of child sexual abuse designs a plan to ensure that child abuse no longer occurs. Victims of discrimination or abuse may demand full compensation, imprisonment of offenders, and closure of the entire organization. Although making concessions on one’s rights or core demands may seem distasteful, the best way forward may be a practical solution that does not meet all the requirements of justice.

Implicit Rights and Establishing Objective Criteria

The rights approach is most easily recognized in terms of public laws and legal disputes. However, this approach also applies to rules and principles in families, communities, social agencies, professional associations, and other organizations. Community norms and mor- als, for example, prescribe appropriate types of behaviors (e.g., what is good/ bad, appro- priate/ inappropriate). Your sense of right and wrong may tell you that divorce is a valid option for couples with irreconcilable differences. A colleague may believe that marriage is sacrosanct. Your sense of right comes from certain cultural values— namely, autonomy and freedom. Your colleague’s beliefs come from a particular religious perspective. In many instances, negotiation based on rights is problematic because there is no universal agree- ment on what actually is right. Neither side has room for compromise unless someone gives up a fundamental moral or ethical belief. In some instances, conflicts over morals or norms are difficult to resolve because these guidelines are implicit. People may be acting on certain rules or principles without articulating specifically what these rules or principles are saying. By engaging in more explicit discussion of rules or rights that people are applying, the par- ties can more readily identify areas of agreement or disagreement.

One approach to making rights explicit is for conflicting parties to identify objective criteria. Criteria refer to measures, standards, formulas, or guidelines that can be used to determine the best way to resolve a conflict (Barendrecht & Verdonschot, 2008). Criteria are objective to the extent that they are based on valid and unbiased standards, free from self- interest or prejudice. Objective criteria may help parties reach agreement because they perceive that applying these criteria is a fair and valid process for bridging their differences. Although applying objective criteria was popularized by R . Fisher et al. (2011) in their book on interest- based negotiation, this strategy fits with a rights approach because it is based on applying factors to determine the “right way” to resolve a conflict.

Consider a nursing home that administers haloperidol (Haldol) to elderly patients who yell and are difficult to handle. Swati, a student intern, asks why Haldol, an antipsychotic drug commonly used for patients with schizophrenia, is being given to patients who have

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dementia rather than schizophrenia. Cheryl, the chief of staff, notes that Haldol helps calm the patients. Swati expresses concerns about the side effects, particularly for patients who might have Parkinson’s disease or depression. If Cheryl and Swati decide to resolve this issue using objective criteria, they could identify unbiased, reliable sources of informa- tion: for instance, a study conducted by an independent researcher or policies established by the U.S. Food and Drug Administration. If sufficient research or empirically based poli- cies did not exist, they could agree to monitor the use of the drugs and conduct their own research to identify criteria for the safe and effective use of Haldol.

One of the challenges of identifying objective criteria is determining criteria that both parties will accept as objective. Conflicting parties have a tendency to assert criteria that support their own positions (Barendrecht & Verdonschot, 2008). To avoid focusing on biased or self- serving standards, parties can explore external sources of information. Mental health practitioners, for instance, can draw upon standards that have been developed for particular professional purposes. In a conflict over whether to commit a suicidal patient to a psychiatric facility, for instance, the parties may use risk assessment tools that have been studied for validity and reliability. In a conflict over whether to hire an addictions counselor who has served time for a felony conviction, the agency could refer to standards developed by related professional associations or accrediting bodies. The independence and expertise of these sources provides a sense of impartiality and legitimacy to their standards. The rel- evant source of information will vary from situation to situation. Each conflict requires a unique analysis of potential standards, their relevance, and their objectivity.

Community standards may be drawn from a range of sources, including past practices, norms, traditions, and informal statements of community standards. For example, a city council is discussing whether to allow community members to place a Festivus Pole in a public park. Some councilors question the authenticity of Festivus, a holiday constructed for Seinfeld, a television comedy. Others note that the government has allowed other reli- gious displays without questioning the authenticity of the religion. By looking at past practices and traditions, the city is acting on precedent and the principle of treating like cases alike.

When developing or proposing objective standards to use to resolve a conflict, consider standards that are

• based on sound empirical research (e.g., using valid, reliable measures; appropriate sam- pling procedures; and rigorous statistical or qualitative analysis),

• approved or supported by authoritative bodies (professional associations, independent research institutes, reputable community organizations), and

• feasible to apply (reasonable cost, reasonable time, parties have the competence to apply them or have access to relevant experts who can apply them).

Regarding feasibility, measurable and quantifiable standards are generally easier to apply than qualitative or open- ended standards. In an agency’s dispute over the size of caseloads, for instance, stating that caseloads should be “fair and reasonable” provides only general guidance on how to resolve the issue. Fairness could be defined more specifically as each practitioner having the same number of clients. Reasonableness could be defined in terms of the amount of time required to serve each client. Thus, if it takes approximately 2 hours per week to serve each client and there are 30 hours per week designated for direct client service, then a reasonable caseload would be 15 clients.

If it is not possible to identify quantitative standards to resolve a particular conflict, then developing specific qualitative criteria may suffice. Roley and Michael are two educators arguing over whether students who are struggling academically should be required to take

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additional reading and math courses in lieu of the usual elective courses (e.g., music, physi- cal education, art). They decide against setting a specific grade as the cutoff point (e.g., stu- dents who have a grade point average less than 2.3). They conclude that such a cutoff would be artificial as it is not supported by research. Assume they identify other criteria from the research that are associated with educational success, for instance,

• the student’s interest in particular electives or extracurricular activities, • the student’s connection with teachers or coaches as possible sources of support, or • parental support for the child’s education.

Roley and Michael decide to use these criteria to guide their decisions; for instance, if a student has a positive relationship with the music teacher, then continuing with music will be more beneficial than participating in a remedial math class. Although the criteria leave room for discretion, they are able to make joint decisions more readily than if they had no criteria to guide them.

In practice, objective criteria only need to be perceived to be objective. That is, if the par- ties agree that the criteria are objective, then they can apply the standards and resolve their agreement. An agreement based on objective criteria (as determined by the parties) can be reached even if an independent third party concludes that the criteria are not objective. In other words, if you are trying to resolve a conflict using objective criteria, then you need to persuade the other party that the criteria are objective. You do not need to convince outside experts, scholars, judges, or naysayers.

BEYOND RIGHTS- BASED NEGO TIATION

Negotiating with a strictly rights- based approach can be very limiting. RBN allows the par- ties to share their evidence and present their arguments in a logical manner. If the par- ties are truly able to act in a rational manner, then they could remain open to each other’s arguments. They could also reach agreements by applying the best evidence, relevant laws, policies, rules, and critical thinking. Unfortunately, heated emotions, cognitive biases, mis- communication, deep- seated convictions, and other challenges often make it difficult, if not impossible, to resolve issues using a purely rights- based approach. Thus, it is often impor- tant to incorporate strategies and skills from other approaches:

• Use mindfulness strategies (see Chapter 1), ensuring that you are responding in the moment, balancing emotions with reason, and using appropriate critical thinking skills.

• Use persuasion strategies (see Chapter 4) strengthening your RBN through the use of likeability, consistency, reciprocity, and other- consensus building skills.

• Use legislative advocacy (see Chapter 10), working with legislators to reform laws and codify rights into law.

• Use judicial advocacy (see Chapter 10), filing cases in court to establish rights through new precedents.

• Use systems advocacy (see Chapter 10), influencing social agencies and other community organizations to recognize rights by changing their policies, programs, and procedures.

• Use interest- based strategies (see Chapter 6), employing joint problem- solving skills to resolve conflict based on interests and common ground rather focusing on rights and positions.

• Use transformation and peacebuilding (see Chapter 7 and Module IV), enhancing com- munication and relationships, and collaborating to ensure that everyone’s rights and needs are addressed.

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KEY POINTS

• RBN is an adversarial process in which each party tries to prove he is right in the sense of being accurate, appropriate, fair, or consistent with relevant rules and laws.

• When negotiating rights, parties consider how a judge, an arbitrator, or another autho- rized tribunal would resolve their conflict.

• When conflict centers on different views of what has happened or what is the current state of affairs, parties present the best evidence to support their case (i.e., witness, docu- mentary, real, and opinion evidence).

• If parties are unable to agree on the facts, they may acknowledge their differences and determine how to proceed despite these differences.

• Rights- based negotiators may use various sources of rights to support their claims: inter- national, national, and local laws; professional codes of ethics; contracts; and agency policies.

• Parties may identify or develop objective criteria to help them resolve conflicts in a fair and valid manner.

• When one party is not recognizing or respecting the other’s rights, then advocacy using various conflict resolution approaches may be needed.

DISCUSSION QUESTIONS AND EXERCISES

1. PAST OR FUTURE: For each of the following scenarios, identify whether the conflict pertains to the facts (what happened) or the parties’ rights (what should happen). a. Ronald is a resident of a group home for teens with emotional problems. He claims

that Honi, one of the house staff has been posting photos of him on her personal Facebook page. Honi rejects Ronald’s claim.

b. Ismael is an inmate in a federal penitentiary. He insists that the penitentiary provide him with halal meals in accordance with his Muslim beliefs. The penitentiary offers him kosher meals that meet the requirements of halal. Ismael says he is entitled to halal, not kosher meals.

c. Two mental health professionals, Mark and Meena, are debating whether a patient has schizophrenia. Mark wants to place Polly (a patient) on antipsychotic medica- tions immediately. Mark suggests Polly has schizophrenia because she is experiencing paranoia, delusions, and hallucinations. Meena contends that they cannot diagnose Polly with schizophrenia at this point because she has been abusing various psycho- active drugs and has only been abstinent for 12 days. Mark says that even though Polly has been abstinent for a short time, it is obvious she has schizophrenia.

d. The principal at Conflictia Elementary School informs Frank that his 4- year- old son, Sequoia, cannot start prekindergarten this year because of Sequoia’s developmental delays. Frank argues that Sequoia has a right to start prekindergarten regardless of his developmental delays.

e. Cassidy and Cornelius are two college students working on a group paper for a history class. Cassidy contends that the settlement house movement began in the United States with Jane Addams. Cornelius rejects her claim, stating that this move- ment began in England with Christian socialists such as Thomas Carlyle and Charles Kingsley.

f. Tyrone has been taken into custody on suspicions that he has been involved in ter- rorist activities and conspiracies. He has not been charged with any offenses. Federal Bureau of Investigation (FBI) agents ask a local substance abuse agency to turn over

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Tyrone’s client files to assist with their investigation and to ensure national safety. Although Tyrone was a client of the agency, the program director contends that Tyrone’s confidentiality takes precedence over the FBI’s jurisdiction to have access such information.

2. JUST THE FACTS: Select one of the cases under question 1 that relates to a conflict over facts (what has happened). Identify at least three examples of evidence that each party could use to substantiate his or her case or claims. What is the best evidence that each party could provide? Why? If the parties cannot reach a settlement on their own, what venues could they use to determine whose version of the facts is true? What is the BATNA for each party? Provide your reasons.

3. JUST JUSTICE: Select one of the cases under question 1 that relates to a conflict over rights (what should happen). Identify the laws, policies, or other sources of rights that each party could use to argue his or her case. What are the strongest rights- based argu- ments for each party? Which party’s position do you think would prevail? Why? If the parties cannot reach a settlement on their own, what venues could they use to determine whose rights prevail? What is the BATNA for each party? Provide your reasons.

4. OBJECTIVE CRITERIA: Identify objective criteria that could be used to resolve the following conflicts. Explain how these criteria should be accepted as valid, objective, and feasible to apply. a. Cindy, a child protection worker, informs Mabel that her son needs to stay in foster

care until Mabel can demonstrate that she can control her anger and manage her son’s behavior without resorting to physical abuse. Mabel says she can control her anger, but Cindy disagrees.

b. Helga is a state- certified home health aide who works with terminally ill clients. Helga and a client (who has cancer) cannot agree on what would be an appropriate hourly wage for Helga’s services.

c. Giselle is a graduate student working with Dr. Popovic, a senior professor. Dr. Popovic tells Giselle that she needs to include him as a coauthor on any publications that stem from her dissertation research. Giselle appreciates Dr. Popovic’s help with her dis- sertation but disagrees with including him as a coauthor. Her university has no direct policy about this issue.

d. Conflictia Smokenders Program has raised $1,200,000 in donations for its pro- grams. Eldon, the executive director, wants to put all the money into research. Cloris, the clinical director, wants to put the money into direct services (counseling and education).

5. RIGHTS AND RESOURCES: Melinda is upset that her daughter, Denise, has been placed on a waiting list at the local eating disorder clinic. Denise has an eating disorder and needs a bed immediately. Melinda claims it is a matter of life and death. The clinic says its beds are full and that they do not have sufficient staff or space to add beds. What sources of rights could be used to inform the debate between Melinda and the clinic? What are the limitations of a rights- based approach in this type of situation, particularly given the agency’s finite resources?

ROLE- PL AY 5.1: “SEDATION SQUABBLE”

Clint is a mental health counselor working with Pinchas, a patient who is experiencing auditory hallucinations directing him to kill those who are about to get him. Clint believes Pinchas poses a serious risk of harm to other patients in the psychiatric ward. Dr. Prince, the chief of psychiatry, suggests sedating Pinchas even though he is refusing all medication. She

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believes that other patients’ right to safety takes precedence over the Pinchas’s wishes. Clint believes the patient’s right to self- determination and the integrity of his body takes prece- dence. Before meeting, Clint and Dr. Prince each prepare for their discussion by working through the questions in Box 5.1. In particular, the parties should:

• Identify laws regarding the administration of drugs to clients on a nonconsensual basis. • Identify relevant standards in their professional codes of ethics. • Preparing talking points, including their best rights- based arguments and questions for

the other person to answer.

For the debate, each person will have up to 2 minutes for an opening statement. Then each side will engage in questions, answers, and discussion for 5 to 10 minutes. Each person should try to convince the other using rights- based arguments and persuasion techniques.

Debriefing : What did you learn about RBN by engaging in this role- play? What were the strongest rights- based arguments for each person’s position? If you were not able to reach an agree- ment through negotiation, what other conflict processes could you use? What is your BATNA?

ROLE- PL AY 5.2: “IMMIGRATION IMBROGLIO”

Zeena and Ferris are arguing over the effects of immigration policy. Zeena claims that immigrants are a drain on the economy, taking jobs from Americans, pushing down their wages, and getting into trouble with the law (costing millions of dollars to the criminal jus- tice system). Ferris claims that immigrants contribute to society, bringing needed job skills, highly motivated workers, and good, honest people into the community. To prepare for this negotiation, Zeena and Ferris will each identify and gather at least four pieces of evidence to support their positions (e.g., witness, documentary, real, and opinion evidence). When they meet, Zeena will begin by presenting her evidence. Ferris will then have an opportu- nity to refute Zeena’s evidence and persuade Zeena to accept his evidence.

Debriefing : What was the strongest evidence provided by each negotiator? What contributed to the strength of this evidence? How successful was each negotiator at persuading the other? What made persuading each other a challenging task? If Ferris and Zeena were not able to reach an agreement through negotiation, what other conflict processes could the use? What is their BATNA?

ROLE- PL AY 5.3: “JOINT COUNSELING DEBATE”

Chris and Sanchez are two clinical supervisors at Conflictia Family Services. The agency has asked them to develop an agency policy about domestic violence, particularly wife abuse. They have run into a conflict about whether to see male and female partners together when there has been a history of abuse. In this exercise, they will debate this issue starting from the following perspectives.

• Chris believes that the only way for couples counseling to be effective is to see both mem- bers of the couple together. Chris thinks that safeguards can be put into place to ensure that abuse does not take place during the process of counseling, and that the couples should have the ultimate say in terms of whether they should be seen together.

• Sanchez believes that where there is a history of spousal abuse, the two partners should not be seen together. He also thinks there is no way for the worker to ensure safety if both partners are seen together. Sanchez refutes the argument that the couple should have the

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final say, because it is the counselor who is responsible for ensuring that counseling is safe and effective.

Each negotiator should use the questions in Box 5.1 to prepare for this role- play. The nego- tiators should also use the questions in Box II.3 to determine the format and guidelines for the role- play. Identify two strategies that you want to focus on for this exercise. Consider which skills from Box II.4 are needed in order to implement these strategies. Give your- selves at least 45 minutes for this role- play, with frequent breaks to debrief. Let others in your group know which skills you want to focus upon. Ask for suggestions before going into role.

Directions for Observers: As you observe the role- play, write down at least three key exchanges between Chris and Sanchez (exactly what one person said and how the other person responded). For each exchange, write down whether the response was an acknowl- edgment (paraphrase, summary, or reflection of feeling), inquiry (question exploring the other’s thoughts, perceptions, or feelings), or counterstatement.

Debriefing : What was the nature of the conflict in this role- play? Which rights- based strate- gies did each negotiator try to use (identify specific examples)? Which negotiation strategies and skills tended to be more effective at persuading the other party and reaching agreement? Which strategies and skills tended to be ineffective? What additional strategies might have been helpful?

ROLE- PL AY 5.4: “WHAT DO I GET FOR ROLE- PL AYING?”

The question of who participates in role- plays can raise conflicts between students in a class. The following role- play may or may not be close to issues that have arisen in your actual classes. Play the roles as written. When you debrief, consider how similar issues have been dealt with in your classes.

Of 12 students in the class, only seven have participated in role- plays. Different stu- dents have provided different excuses for why they have not participated. The class needs to decide what, if anything, should happen about the fact that five students have not partici- pated. Consider whether this should be decided by consensus, by one person in the class, by majority vote, or by some other alternative.

The reasons given by the students for not participating include:

• KAREN: My turn to role- play doesn’t come up until next week. • KOBY: I was sick on the day I was supposed to role- play. • KELLY: I don’t like role- plays, so I decided not to come to class. • KATE: I have an anxiety disorder that needs to be accommodated by excusing me from having

to participate in role- plays. • KYLE: I had to finish writing a paper for the same day as the role- play.

Some of the opinions expressed by other people in the class were:

• BARB: That’s not fair. • BOB: It’s their loss. • BRURIA: Why should I have to do it if they don’t? • BETTY: I don’t care one way or another. • BILLIE: What about the so- called standards of our profession? • BRAD: I like having more time to role- play rather than watching others. • BUNNIE: They should not be able to pass this course unless they role- play.

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Assign each of these roles to 12 people in the class. Each person may prepare by identifying relevant rights, rules, and responsibilities, as well as objective criteria or alternatives that could be used to help resolve this conflict. Allot 30 to 40 minutes for this role- play.

Debriefing : What types of preparation helped the most? Which strategies used by others were most effective at moving you from your original position? How was negotiating between 12 people different from negotiating between two? What type of objective criteria could be used to resolve this dispute?

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C h a p t e r s i x

Interest- Based Negotiation

LEARNING OBJECTIVES

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

• Negotiate conflict based on interests rather than positions. • Enhance negotiation relationships by separating the person from the problem. • Use active listening and other respectful communication skills to promote

collaboration. • Use creative strategies to develop options for solution. • Identify and apply objective criteria to evaluate options and determine the best

solution. • Evaluate the advantages and disadvantages of negotiation, as well as any alternatives

to negotiation. • Ensure that the parties are truly committed to any agreements they research.

* * * * * Interest- based negotiation (IBN) refers to a joint problem- solving process in which parties strive to resolve their mutual interests rather than advance their individual rights or posi- tions. Some authors call this approach principled negotiation because the interest- based principles provide a framework for parties to follow for negotiation to be mutually benefi- cial (R . Fisher et al., 2011). In terms of conflict styles, IBN favors collaboration. It draws theoretical support from communication theory, social exchange theory, rational decision- making theory, and game theory:

• Communication theory— Parties can negotiate more effectively if they openly share their concerns, needs, and interests, rather than hiding them. Honesty and a free flow of communication enable the parties to gain an understanding of each other’s perspectives and develop better solutions (Lewicki et al., 2010).

• Social exchange theory— Parties can enhance their individual and joint happiness by trading resources, including tangible items such as money, land, and personal property, as well as intangible items such as security, recognition, and approval. IBN views con- flicts from the perspective that sufficient resources exist and that a more optimal sharing

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of resources can alleviate conflict. People have different needs and preferences, allowing them to trade resources and maximize their utility or benefits. If I have a bicycle that I am not using because I have a disabled leg and you have a car that you are not using because you cannot afford to pay for gas, we could each do better by trading my bicycle for your car— and I might even throw in some extra cash or some free rides in my new car. Thus, the focus of negotiation is to optimize the use of resources for the whole system (Lewicki et al., 2010).

• Rational decision- making theory— Although this theory suggests that people will act in their self- interest, parties may be motivated to act in each other’s joint interests as both parties have something to gain. Thus, by helping people see the benefits of working together, the rational choice is to collaborate (R . Fisher et al., 2011).

• Game theory— Positional and rights orientations view conflict as a zero- sum game: if one party gets more, then the other party will get proportionally less. In contrast, IBN encourages parties to play cooperative games and seek out win- win solutions. In many cases, fighting over resources leads to losses by both parties (e.g., the cost of hiring law- yers, time and energy devoted to fighting, and destruction of one another’s resources). If people problem- solve cooperatively and find common ground, they can actually create and share new resources (Menkel- Meadow et al., 2005).

W hereas power- based negotiation is distributive because it focuses on how to divide resources (Walch, 2012), IBN is integrative because it focuses on how to build a solu- tion that assimilates everyone’s needs, interests, and goals (Follett, 1941). Accordingly, IBN encourages trust and amicable relationships between the parties. If the parties can truly collaborate for their mutual interests, the relative balance of power between them becomes a nonissue. They use power with each other, rather than power over one another.

R . Fisher et al. (2011) suggest a seven- part framework for negotiation:

• Focus on interests, not positions. • Invent options for mutual gain. • Apply objective criteria. • Improve communication. • Build a positive negotiating relationship. • Consider alternatives. • Obtain commitments.

These components do not represent a sequence of steps, but rather strategies to be used in various combinations. When problems arise in negotiation, these points can be used as a diagnostic checklist to determine the nature of the difficulties and strategies to employ to move negotiation forward. The relative importance of a particular component depends on the particular situation. The following sections explore these seven components in greater detail.

FOCUS ON INTERESTS, NO T POSITIONS

The central tenet of IBN is that negotiators should avoid positional bargaining and focus on satisfying their interests. But what exactly are interests, and how do they differ from rights or positions? Positions are strategic stances or demands of the parties. Positions may reflect impulsive or intuitive wishes. They do not necessarily represent what the parties truly want or need. Interests refer to their underlying needs, values, concerns, or desires. Interests may

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be hidden or embedded within stated positions. To identify interests, ask the parties why they are pursuing certain positions or demands. Invite them to reflect on their positions in order to find out what is truly important to them, at a fundamental level. Consider the fol- lowing scenario:

Ferdinand has a 12- year- old daughter, Demi. A child protection worker, Whoopi, has been asked to investigate Ferdinand for possible child abuse. Upon meeting with family members, Whoopi is concerned for Demi’s safety and decides to place Demi in tem- porary foster care. Ferdinand contests this decision. He has used corporal punishment with Demi but does not believe that this practice constitutes abuse.

Whoopi’s position is that Demi must be removed from her family home. Ferdinand’s position is that Demi should remain with him. If they pursue a power or rights perspective, both will become entrenched in their positions, trying to convince one another that each is right. They will tend to restrict their vision of possible solutions to Whoopi’s position or Ferdinand’s position.

In contrast, if they pursue an interest- based perspective, they will try to understand one another’s interests and look for creative solutions that are satisfactory to both of them. If Ferdinand asked Whoopi, “Why do you want Demi placed in foster care?” or “When you say you want Demi in foster care, what are your underlying concerns?” Whoopi would say that she is interested in Demi’s safety, ensuring that she is not abused and that her psychoso- cial concerns are being met. If Whoopi were to ask Ferdinand about his underlying interests (“What are your reasons for wanting Demi to stay home with you?”), he would say that he loves Demi and is interested in her welfare. Both Whoopi and Ferdinand could agree they were interested in Demi’s welfare. They have different understandings about what this means or requires. However, they have a common goal and can engage in a joint problem- solving process to resolve their differences. Their selection of possible solutions opens up; for instance, they can:

• Arrange for an independent helping professional from the community to conduct a fam- ily assessment and suggest services, if needed.

• Have a relative move into the family home to assist with parenting. • Develop an agreement about what types of punishment are appropriate and what types

are inappropriate. • Ensure that Demi has a counselor or support person to confide with. • Refer Ferdinand to parenting skills training. • Provide Ferdinand with liberal access while Demi is in foster care.

Ferdinand does not want Whoopi making life difficult for him. Whoopi does not want to make life difficult for him, either. They could agree to work out a plan to resolve their differ- ences as quickly and amicably as possible, so Ferdinand’s family can get on with life without interference from Whoopi.

To prepare for negotiation, identify the other parties’ interests, as well as your own. The natural tendency is to see conflict from one’s own perspective. Try to put yourself in the others’ shoes. Why are they advocating a particular position? What are their underly- ing concerns, hopes, expectations, aspirations, or preferences?1 Consider the use of role

1 To help you remember each of these terms, you can use the mnemonic CHEAP.

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reversal to help you understand the motivation and viewpoints of other parties. Role rever- sal is a type of role- play in which you assume another party’s role and have a colleague assume your role. By taking on the other party’s role, you gain an experiential understand- ing of that party’s interests.

If conflicting parties have similar interests, they can easily agree to a common goal. If the parties’ interests conflict, they may be able to identify common goals by explor- ing deeper levels of underlying interests (R . Fisher et al., 2011). The hierarchy of inter- ests includes desires, values, and basic needs (Warfield, 1993). I will use a brief case to illustrate.

Dorothy, aged 52, lives with her 84- year- old mother, Miranda. Miranda’s health has been deteriorating. After Miranda fell in the bathtub, Dorothy decided Miranda should move into a specialized nursing home. Miranda wants to stay at home. Their counselor wants to help them identify common interests in order to engage them in joint problem solving: • Desires or wants are based on cognitive decision- making processes and emo-

tional reactions. Miranda says she wants to live at home because that is where she has lived all her life. She has never lived in an institution and would not know how to adapt to all the changes. She is afraid to go to a nursing home, because she believes that is where people go to die. Dorothy wants Miranda to go to a nursing home because a nursing home can provide better care for Miranda. Each person has a valid argument, based on her own reasoning. Unfortunately, their desires conflict.

• Values are nonreasoned choices that define a person’s core convictions about what is important. Underneath Miranda’s desire to remain at home lies her value for independence. Moving into a nursing home would mean giving up her inde- pendence. In contrast, Dorothy’s original position is based on her value for health. Miranda and Dorothy might agree to negotiate based on two principles: indepen- dence and health. This would provide a basis for joint problem solving. However, if they do not agree on these principles, the counselor can ask them what underlies their stated values.

• Needs are more basic requirements than values. Physical requirements include food, water, sleep, shelter, and safety from bodily harm. Psychosocial necessi- ties include security, identity, recognition, respect, status, and self- actualization (Chetkow- Yanoov, 1997; Maslow, 1987; Moore, 2014). W hereas parties may choose to suspend or relinquish their interests, they cannot bargain away their needs so easily; by definition, needs are essential (Maiese, 2012). W hen needs are unmet, conflict is likely to continue and violence may continue to erupt. Miranda’s value for independence may be based on her need for survival. She does not believe that she can survive without independence. Similarly, Dorothy’s value for health may also lie in her need for Miranda’s survival. Accordingly, both can agree to work toward a common goal. The focus of the problem is what it will take to ensure Dorothy’s survival. If they cannot agree on a common goal at this level, the counselor can help them explore even deeper levels of interests.

As parties move from positions to desires, values, and needs, they tend to move from the specific to the general. If parties cannot agree on specific goals, they may find it easier to agree on more general principles. Once general principles are in place, the parties can work out more of the specifics. Box 6.1 summarizes key questions to consider when focusing on interests, not positions.

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INVENT OPTIONS FOR MUTUAL GAIN

Options are possible solutions or outcomes of the conflict resolution (CR) process. When people become entrenched in conflict, their initially perceived choice set tends to be nar- row. Remind yourself and the other party that it is important to keep an open mind, to be creative. Once you have agreed on general principles, you can work together to invent pos- sible solutions. To foster creativity, parties should suspend judgments about the options being generated. Use divergent thinking, using a freewheeling approach and thinking out- side the box (Wilson & Thompson, 2014). For example, brainstorm as many ideas as you can. Do not worry if they are reasonable or viable. A free- flowing dialogue fosters creativity (Goldenberg & Wiley, 2011). Do not have concern about whether the ideas are better for one party or another. Just raise as many ideas as possible. As you brainstorm, list all the ideas on a flipchart or chalkboard. Even ridiculous ideas can spawn constructive options. If you are not sure what options are available, gather information from friends, professionals, or other resources in the community. Although some research on brainstorming suggests that it may be useful for parties to critique each other’s ideas (Goldenberg & Wiley, 2011), having a rule against critiquing options during the early stages of brainstorming helps par- ties build trust and develop a spirit of cooperation.

In Dorothy and Miranda’s situation, they might brainstorm the following options: Let Miranda stay home and put Dorothy in the nursing home; hire a home aide to help with Miranda’s care; delay the decision until the next crisis; have Miranda spend time with differ- ent family members to give Dorothy respite; do not allow Miranda to take baths; look for a supportive housing arrangement that provides more independence than the nursing home; turn Dorothy’s house into a nursing home and admit additional patients.

Avoid making decisions about whether options are worth considering until all your ideas are exhausted. When one person puts forward an idea, it is very easy for the others to reject it. If each successive idea is rejected, then no options will be left. If you list all the options first, then the choice is not yes or no but which of the options is best (or, in some cases, least harmful). Parents can use this strategy with children. If a parent asks, “Would you like a tuna sandwich for lunch?” the child can reject this suggestion, hoping the parent will present a better offer. If the parent says, “Would you prefer tuna or peanut butter?” the child cannot simply say no. If the child knows there are only two choices, the child will choose between them (or so the parent hopes!).

People tend to be more creative under certain conditions: when they are at ease, when stress levels are low, when they feel they are being treated fairly, when they are motivated by positive goals (Pruitt & Carnevale, 1993; Simmons, 2011), and when they have received

BOX 6.1 FOCUS ON INTERESTS, NOT POSITIONS

a. What are your interests?

b. What are the other party’s interests?

c. Which interests do you have in common?

d. Which interests conflict?

e. Are these conflicting interests based on any deeper interests that you and the other

party share (e.g., underlying desires, values, needs, hopes, or fears)?

f. how can you work together and problem solve to try to achieve both party’s interests?

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creativity training (Wilson & Thompson, 2014). Accordingly, try to establish an environ- ment conducive to these conditions. Use humor to lighten the mood. Develop a positive working relationship and goals for work before moving into option generation and problem solving. Choose a convenient time and tranquil place for negotiating. In positional negotia- tions, parties often use time as a pressure tactic. For instance, serious negotiations are left until the eleventh hour, just before a crisis point (e.g., the strike deadline, the court date, the straw that breaks the camel’s back). Another positional strategy is to start negotiations late in the day, just before the weekend. Parties do not want to give up their Friday evening or weekend, so they pressure themselves into settling as soon as possible. In IBN, parties need ample time to work through problems and develop creative solutions. Taking breaks and slowing down the process provides parties with time for ideas to germinate (Goldenberg & Wiley, 2011). The parties may establish timelines for decisions, but these should be based on identified interests rather than pressure tactics.

Other methods of promoting creativity (thinking without borders) include wordplay, hat- switching, and flipping (Menkel- Meadow et al., 2005):

• Wordplay refers to switching or deleting certain words or adding different types of emphasis to different words in a sentence or suggestion. If Miranda suggests that Dorothy quit her job, Dorothy could ask, “Rather than quitting, how do you think I could expand my job?” This might encourage Miranda to offer, “Perhaps you could take a job in a nursing home, so taking care of me would be part of your job.”

• Flipping refers to reversing an option so that it applies to the other party. If Dorothy suggested putting Miranda in a nursing home, Miranda could flip this by joking, “Perhaps we could put you in a special nursing home.” This could help them think about the possibility of moving into a specialized facility where both could live together, providing supportive care for Miranda without taking away all her privacy and autonomy.

• Hat- switching refers to asking people to view the situation from different perspec- tives. For instance, Dorothy could ask, “What do you think your doctor might suggest?” Other possible views include those of a social worker, clergy person, elder, child, police officer, comedian, respected celebrity, or even a nasty celebrity. If Miranda were viewing the issue from her grandchild’s view, she might offer, “Let’s all go for ice cream. I can think better with ice cream.” Sometimes, viewing things from the vantage of people who lack formal education, worldly experience, or moral direction can lead to some of the most creative thinking.

Electronic brainstorming refers to the use of mobile apps or online programs that allow people to submit and share ideas for resolving conflicts (Michinov, Jamet, Métayer, & LeHénaff, 2015). Because electronic brainstorming can be facilitated anonymously, people may be more willing to share creative, wild, or potentially embarrassing ideas (Goldenberg & Wiley, 2011). Electronic brainstorming could include identifying infor- mation in order to encourage everyone to participate (avoiding the “free rider” phe- nomenon, particularly in larger groups). It also allows the parties to solicit input from people outside the immediate conflict, including particular experts or the general public (Lewicki et al., 2010; Wilson & Thompson, 2014).

Ideally, the parties invent an elegant option, a win- win solution that resolves the con- flict to everyone’s satisfaction. It is creative, ingenious, and often quite simple, at least in hindsight. When parties are unable to identify an elegant solution, they may have to select between less- than- perfect solutions. Box 6.2 provides a framework for inventing options for mutual gain.

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APPLY OBJECTIVE CRITERIA

As Chapter 5 indicates, objective criteria are standards or factors that can be used to guide rational decision making. W hereas subjective criteria depend on the perceptions, views, beliefs, interpretations, emotions, and biases of a particular individual, objective criteria are dispassionate, unbiased, evidence- based, fair, and verifiable. Objective criteria fit with a rights- based approach because they help parties determine solutions that are fair, accept- able, just, or otherwise appropriate in the circumstances. W hen used in a rights- based approach, objective criteria are employed in a competitive manner, with each party argu- ing to defend the rightness of his or her position. W hen used in IBN, objective criteria are employed in a collaborative manner. Once the parties have developed an exhaustive list of options, they can use objective criteria as a principled way to choose between them (R . Fisher et al., 2011). Rather than argue about which options are best, the parties begin by seeking agreement to the general principle that decisions will be made on the basis of criteria that are fair and legitimate. Once they have agreement on this principle, they can start identifying objective criteria.

Make the choice of criteria a joint decision rather than have each party come up with his or her own criteria. Explore various sources for objective criteria: What standards might a neu- tral third person suggest? What principles might independent experts in the field suggest? What precedents have been used in similar situations? What formula or guidelines might the community consider to be fair? To determine the value of goods or property, what are the replacement costs or the prices of similar items on the market? When suggesting crite- ria, consider ones that will appeal to the other party (R . Fisher et al., 2011). If your sugges- tions appear self- serving or illegitimate, the other party will reject them. Once you and the other party have tentatively agreed to objective criteria, test them out. If they do not work as well as originally thought, see if you can improve upon them. In addition to being fair, objective criteria should be reasonable and practical to apply.

Dorothy and Miranda might defer to the expertise of a respected gerontolo- gist: How do other families make decisions about the care of elder parents? If a choice has to be made between independence and physical healthcare, what principles or cri- teria should be used to make the decision? They might explore empirical research and literature to see what has been written about these issues. The gerontologist or the literature does not make the decision for Dorothy and Miranda. They just use these resources for ideas. Ultimately, the parties decide on the criteria and how to apply them (Menkel- Meadow et al., 2005). Box 6.3 provides questions to consider when applying objective criteria.

BOX 6.2 INVENT OPTIONS FOR MUTUAL GAIN

a. off the top of your head, list all possible options for solution.

b. Identify additional processes that could be used to stimulate creativity and generate

additional options (e.g., joint brainstorming, technology- assisted brainstorming,

hat- switching, wordplay, role reversal).

c. Consider sources of information that you and the other party can access to help

invent options.

d. Avoid evaluating the options until you have generated many options.

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Identifying and applying objective criteria may be difficult— and perhaps even inap- propriate— depending on the situation. Consider a child who suffers from anxiety because his psychotherapist asked unduly intrusive questions regarding child abuse. If the parents and therapist are negotiating compensation for the anxiety, they may find it hard to quantify the cost of the suffering to the child. They might find comparable legal cases, using the judg- ments in those cases to determine compensation. As each person’s experience of anxiety, pain, and suffering is unique, however, they may agree on a level of compensation that based on the child’s subjective experience.

IMPROVE COMMUNICATION

In Chapter 2, I described the importance of communication skills in CR . Because IBN is based on collaboration, active listening skills are particularly important for building posi- tive relationships between parties. To be effective, you must not only listen but ensure that the other parties know you are listening and understanding them. Demonstrate that you are a reason- able person, open to persuasion. Admit areas of ignorance and use questions to become more informed. Ensure that your statements are clear, nonthreatening, and assertive. Determine whether there are particular problems in communication— for example, lack of opportuni- ties for communication, misinformation, or mistrust. Where these problems exist, how can you rectify them? Remember that what others say is not necessarily how they truly feel or think. Use nonthreatening questions and active listening skills to check your interpretations.

Many conflicts are aggravated because the parties never make opportunities to com- municate. If one party is a conflict avoider, demonstrate that communication is in both par- ties’ best interests. Find out what they fear (Adler, Rosen, & Silverstein, 1998). If they fear rejection, yelling, or physical violence, establish ground rules to make the interaction safe. In Dorothy’s case, she may have been scared to talk to her mother about the nursing home because of feelings of guilt. By putting off the discussion until a crisis occurred, neither side has had an opportunity to process her ideas and feelings with the other.

BOX 6.3 APPLY OBJECTIVE CRITERIA

a. What credible sources can you and the other party jointly explore to help identify

objective criteria (e.g., experts in the field, scholarly research, comparable precedent

cases, agency policies, professional codes of conduct, diagnostic criteria, relevant

laws, contracts, principles that operationalize fairness for a particular situation)?

b. given your exploration of these sources, what are the various principles or stan-

dards that could be used to assess the options (with each party being open and

giving sincere consideration to the other’s suggestions)?

c. Which principles or standards can be justified from objective (rather than self-

serving) perspectives (i.e., based on sound research, independent experts, court

decisions, or other verifiable and credible sources of information)?

d. how can you explain these principles or standards and justify their use to the other

party in a factual manner (avoiding patronizing or judgmental language)?

e. once you and the other party have agreed on objective criteria, how can you and the

other party interpret and apply them?

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Communication technologies— including videoconferencing, telephone, fax, email (Parlamis & Geiger, 2015), Twitter, Facebook, online discussion boards, and other online programs— have launched a range of alternatives to in- person or face- to- face negotiation (Augar & Zeleznikow, 2014). For some people, in- person communication feels more humanizing. You can see one another’s expressions, shake hands, and interact spontane- ously. Use of communication technologies may be more convenient, even necessary in some situations. Communication technologies may bridge distances and also accommo- date people with disabilities, including deafness, blindness, and mobility issues (Abdel Wahab, Katsh, & Rainey, 2013). If you need to use communication technologies, consider how you can overcome potential challenges such as rapport building, seeing and accurately interpreting nonverbal communication, maintaining the confidentiality of the information being shared, and time lapses as communications are transferred back and forth. In some circumstances, drawing out communication can be advantageous because it allows heads to cool. Technology may also allow the parties to create a safe distance from each other, particularly when there are concerns about physical and emotional safety.

If conflict is aggravated by misinformation, provide opportunities for full and frank dis- closure. When parties are positional, they tend to guard their own information and treat the other person’s information with mistrust. By moving into joint problem solving, exchange of information becomes reciprocal. When areas of mistrust persist, construct alternatives that are not dependent on trusting one another. Discussing sexually transmitted diseases with a new partner, for example, is very difficult. If you ask your partner about past sexual and drug use behavior, the partner may question your love and trust. You want to trust your partner, but with fatal diseases like AIDS, trust is a challenging concept. To move beyond the area of mistrust, the partners can agree to be tested for sexually transmitted diseases together. They select an independent source of information— the health practitioner who tests them. In addition to providing HIV information and testing, the health professional can provide guidance on how to discuss HIV issues in a constructive manner.

Box 6.4 highlights questions to consider when determining how to improve communication.

BOX 6.4 IMPROVE COMMUNICATION

a. What past problems, if any, stem from miscommunication? how can you rectify these

problems? (e.g., If the conflict is caused by the parties’ relying on different informa-

tion, then sharing information is important; if the parties have different interpreta-

tions of the information, then they can explain these differences to one another; if

parties cannot understand one another, consider the use of an interpreter;2 if a party

is making false assumptions, surface those assumptions and share new information.)

b. What communication problems do you foresee in upcoming negotiations? how

can you pre- empt these?

c. What is your purpose for communication? (Is it to demonstrate that you hear and

understand the other party, to persuade, to build trust, to share information, or to

reach an agreement?)

2 An interpreter is not only someone who can translate from one language to another, but one who can explain different constructions of language that arise from different cultural experiences.

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BUILD A POSITIVE NEGO TIATING REL ATIONSHIP

A key difference between interest- based and power or rights- based negotiation is the emphasis that IBN places on relationships. Parties negotiate to improve interactions, not simply to solve a particular problem. Negotiations often involve managing conflict over time. You may need to learn how to live with conflict rather than solve it once and for all. “Winning” your position in one phase of negotiation is a hollow victory if it means destroying the relationship and making future interactions more difficult. Trust and a positive working rapport are developed through ongoing interactions. People base their trust— or mistrust— on their assessments of past behaviors. If they believe you have acted in an honest, fair, reliable, and respectful manner, they are more likely to trust you in future negotiations (Lewicki et al., 2010). If you have a reputation for dishonesty, unreliability, bullying, and disrespect, future negotiations will be more difficult.

Game theory illustrates that parties are more likely to cooperate when an ongoing rela- tionship exists between the parties (Rapoport, 1974). If two strangers are involved in a onetime conflict knowing that they will never see each other again, they have no incen- tive to make amicable relations one of their goals. Family members, coworkers, neighbors, and friends have ongoing relationships. Professionals and clients have ongoing relation- ships, though these relationships may also be time limited. If negotiations are adversarial, one party might win the immediate battle but lose out in the bigger picture. An employer, for example, may have greater bargaining power than employees. If the employer simply coerces employees into submission, however, the employees will become angered and resistant. Both sides will eventually lose out. To encourage conflicting parties to build a positive negotiating relationship with you, help them understand your interdependence and the prospects for conflict over the long run. Discuss similar views and values. Stress the benefits of mutual trust. Develop common goals and interests (Lewicki et al., 2010).

A vital strategy suggested by R . Fisher and colleagues (2011) is to separate the people from the problem. As Gandhi noted, the enemy is not the enemy (Kurtz & Ritter, 2011). In other words, the focus of negotiations should be to resolve the problem— dealing with offensive behavior, compensating people for a loss, changing an unjust law, or whatever the primary concern may be. Express strong views about the problem, asserting your position passionately but without attacking the person. You are more likely to persuade a person who you have treated with respect than one whom you have offended.

You do not need to like a person in order to negotiate effectively with that person. Helping professionals often work with “repugnant clients”— that is, clients with attributes the professional finds offensive. Clients may express racist views, smell from stale ciga- rettes, spit when they talk, or speak in condescending tones. Still, helping professionals abide by the ethic that everyone deserves respect (Barsky, 2010). They must find ways

d. given your purpose for communication, what is the best forum for negotiation

(e.g., in- person, email, telephone, teleconference, online negotiation program)?

e. how can you tailor the forum for negotiation so that it promotes constructive com-

munication? (Is there sufficient time, good working space, low stress, few distrac-

tions, appropriate use of communication technology, and does it attend to ethical

concerns such as confidentiality and informed consent?)

f. If direct communication is problematic, what type of facilitator(s) might help the

process (e.g., representatives for each party, mediator, supervisor, cultural inter-

preter, language translator)?

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to work with the client, despite these concerns. Treat the person with respect. Showing respect to a supposed adversary amid an escalating conflict may be self- empowering (Kurtz & Ritter, 2011). Deal directly with the problem. If the problem is related to the relationship, raise that as an issue. “Although we have different opinions about what is in this client’s best interests, how do you think we can work together in a respectful manner, so we can provide this client with more effective services?” If someone is “pushing your buttons,” take time out to reflect on why this is happening. Ask a supervisor or confidante to help you debrief.

IBN encourages parties to consult with one another rather than make unilateral deci- sions. If Dorothy tells Miranda that she has found a nursing home for her, Dorothy has left Miranda out of the decision- making process. Instead of presenting Miranda with a fait accompli, Dorothy should discuss the concerns and work toward solutions jointly.

R. Fisher and Brown (1988) suggest that a positive negotiating relationship is one that can deal effectively with differences. Parties need not agree with one another in order to have a good relationship. I have had some of my most heated and contentious discussions with people I love dearly. Disagreeing does not mean rejection. People can have positive rapport even if they have different values, attitudes, and beliefs. They must simply respect diversity.

For certain people and within certain cultures, however, disagreement does have nega- tive connotations. Consider, for instance, individuals with a poor self- image or weak inter- personal boundaries. Disagreement comes across as personal rejection. When negotiating with someone with low self- esteem, be particularly careful to separate the person from the problem (R . Fisher et al., 2011). Give the person ample positive feedback. Reaffirm that you are not attacking the person when you are disagreeing. Build on strengths. Use positive reframes. Your colleague at work is not a “control freak.” She is a person who values accu- racy and attention to details. You may have different preferences or needs, and the best way to discuss them is in a respectful manner.

Consider traditional Chinese and other Eastern cultures where communal harmony and congeniality are highly valued (LeBaron, n.d., Wilmot & Hocker, 2014). The concept of a relationship that deals well with differences fits better with an individualistic society. Within communitarian cultures, people are more concerned about group needs and inter- ests. When negotiating with someone from a communitarian culture, focus on fostering peace and congenial relations. If possible, work toward common goals rather than trying to satisfy each party’s separate ones.

R . Fisher and Brown (1988) identify six unconditionally constructive strategies for building positive negotiation relationships:

• Rationality— even if they are acting emotionally, balance emotions with reason.3 • Understanding— even if they misunderstand us, try to understand them. • Communication— even if they are not listening to us, consult them before making deci-

sions on matters that affect them. • Reliability— even if they are trying to deceive us, neither trust them nor deceive them;

be reliable. • Noncoercive modes of influence— even if they are trying to coerce us, neither yield to

that coercion nor try to coerce them; be open to persuasion and try to persuade them. • Acceptance— even if they reject us and our concerns as unworthy of their consideration,

accept them as worthy of our consideration, care about them, and be open to learning from them. (p. 38)

3 Refer back to Chapter 1 for information on mindfulness and managing emotions.

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These principles encourage negotiators to act in ways that promote a positive relationship, regardless of whether the other party reciprocates. Negotiating morally is valued in and of itself (Van Es, 1996). The six principles apply to formal negotiations as well as informal or emergent ones.

Many people question the wisdom of R. Fisher and Brown’s guidelines. “Sounds great from an ideological perspective, but won’t they allow people to walk all over you?” Actually, it is great ideologically. The six guidelines correspond with professional ethics such as uncon- ditional positive regard, respect for the dignity of all people, client self- determination, and being nonjudgmental (Barsky, 2010). As for the pragmatic concern, these principles do not suggest that you go soft and allow people to take advantage of you. They support the notion of being respectful of others while being assertive with your interests. If you are being attacked, confront the problem rather than the person. Identify ways to confront that do not put the other person on the defensive. Remain open to working together for an amicable solution. If you are unable to arrive at a reasonable solution, you do not need to come to any agreement.

Radical professionals may still see this approach as being soft: If individuals or groups are being oppressed, they have the right to fight back (Alinsky, 1971). Does oppression justify the use of deception or coercive modes of influence? Must people offer respect or acceptance to those who oppress them? As you work through the experiential exercises, try different approaches. Consider what methods are most effective in dealing with oppressive parties. Return to the values you identified in Chapter 1 in order to see whether these are consistent with your experiential understandings.

Box 6.5 summarizes key strategies that may be used to build a positive negotiating relationship.

BOX 6.5 BUILD A POSITIVE NEGOTIATING RELATIONSHIP

a. Consider use of unconditionally constructive strategies: rationality, understanding,

consultation, reliability, noncoercive modes of influence, and acceptance.

b. What makes employing these strategies difficult in the present conflict (e.g., past

negative experiences, stereotypes, mistrust, displaced emotions, stress that is not

directly related to the conflict, rigid or unclear organizational structures or chains

of command)?

c. how can you try to overcome these challenges? (e.g., use mindfulness strategies to

deal with strong emotions.)

d. how can you encourage collaboration? (e.g., focus on the future and joint inter-

ests; accommodate the other in a strategic fashion; or use confidence- building

measures,4 procedural trust,5 and attributional retraining.6)

4 For instance, one party takes unilateral steps to show good faith and to see if the other will respond in good faith; parties work on minor issues first and when they see each other acting in good faith, they can move onto more important issues (Furlong, 2005; see also, Module IV on trust building).

5 Use processes that are intrinsically fair and do not require high degrees of interpersonal trust; e.g., flip a coin to make a decision rather than ask parties to sit down, trust each other, and talk through a solution.

6 Attributional retraining refers to uncovering and gently challenging the other person’s assumptions by rais- ing questions to facilitate insight, raising doubts, and offering new information to consider (Furlong, 2005).

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CONSIDER ALTERNATIVES

Whereas options are possible solutions (outcomes), alternatives are possible CR processes (actions). Negotiation is one method of CR , but many others are possible: avoiding, fight- ing, mediating, litigating, flipping a coin, and so on. When a party decides to engage in a CR process, the result is not certain. To map various alternatives and their likely outcomes, one could draw a decision tree (see Appendix 1; Aaron, 2005). Given a particular conflict situation, consider what attributes you are looking for in a CR process: cost- effectiveness, timeliness, fairness, affability, mutual satisfaction, and so on. Once you have identified your goals, select a process that is most likely to satisfy these goals.

As Chapter 4 notes, the term BATNA refers to a party’s Best Alternative to a Negotiated Agreement (R . Fisher et al., 2011). To identify your BATNA, ask yourself, “If we do not come to an agreement in negotiation, what is my best other course of action?” By consid- ering your BATNA, you can decide whether it is better to negotiate or to select another alternative. In Dorothy and Miranda’s conflict, Dorothy’s alternatives include taking some sort of unilateral action, such as refusing to care for Miranda or going to court to have her mother declared mentally incompetent. Neither of these is very appealing to Dorothy. She loves her mother. Resolving the issues in an amicable manner is important to her. If Dorothy and Miranda cannot negotiate a resolution on their own, Dorothy’s BATNA is to try to resolve the conflict with the aid of their counselor. Because Miranda also wants an amicable settlement, she may be persuaded to try this alternative.

Rather than negotiate specific outcomes, you could negotiate a process. Processes can be designed to be expedient, fair, or just. Some situations call for quick resolution. You and a colleague are deciding where to go for lunch. If you take the time to go through the all the IBN strategies, your lunch hour may be over before you reach a decision. Consider a quick alternative: Each person gives one suggestion, and you flip a coin to decide which of the two suggestions to follow. If there are more than two people, put all of the suggestions in a hat and draw one. The process is fair, and you still have time for lunch.

If parties have tried IBN but reached a stalemate, they could decide to negotiate a pro- cess, giving an impartial third party the responsibility for making the decision. Divorcing parents who are contesting where a child should live, for instance, could agree to have an independent family evaluation (Patel & Choate, 2014). The evaluator7 would conduct home visits with both parents and observe the child in each home. The parents would agree to abide by the recommendations of the evaluator. The evaluator would make the decision based on a professional assessment of the best interests of the child.

Impasse during IBN often occurs when there is a zero- sum game— that is, when a fixed pool of resources has to be divided. For distributive decisions, many techniques are avail- able for creating a fair process:

• Taking turns— If there are a number of objects to be divided, each person can take a turn selecting an object. To reduce the advantage of going first, you can adjust the order of selections. Person A selects first. Person B gets the next two selections. Person A gets the next two selections, and so on.

• Separating who makes the division and who chooses— Person A divides the resources into two pools. Person B selects which pool to take. Person A will have an incentive to make the pools equally attractive.

7 An evaluator is a professional with expertise in making certain types of assessment. The recommendations of the evaluator can be binding or nonbinding, depending on the prior agreement of the parties. If the rec- ommendations are nonbinding, one or both parties may disregard them. If the evaluator is a trusted expert and conducts the assessment fairly, the parties are more likely to follow the recommendations.

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• Using buy- sell agreements8— Person A sets a price for the entire property in dispute. Person B can buy out Person A according to the price provided. If Person B chooses not to buy at that price, then Person A buys out Person B at the same price.

These examples demonstrate how IBN is not a mutually exclusive process. Through IBN, parties can agree to participate in other processes in order to determine all or some of their outstanding conflicts. Different processes have different advantages and disadvantages. By matching the appropriate process with the goals of the parties in a particular situation, par- ties are able to satisfy their mutual interests.

Box 6.6 provides a framework for exploring alternatives and assessing BATNAs.

OBTAIN COMMITMENTS

Parties who reach their own decisions about how to resolve a conflict are more likely to follow through on their decisions than decisions imposed by a third party (e.g., a judge in court or a supervisor in an agency). Parties tend to be more committed to their negoti- ated solutions because they have agreed to the terms (Moore, 2014). In contrast, imposed decisions may be disappointing to one or both parties. Dissatisfied parties frequently try to thwart implementation.

BOX 6.6 CONSIDER ALTERNATIVES

a. What are your alternatives to negotiating an agreement? What are the advantages,

disadvantages, and risks of each alternative? Which alternative is your BAtNA (Best

Alternative to a Negotiated Agreement)? (Consider financial, emotional, psycholog-

ical, physical, relational, and moral consequences, as well as the time requirements

and feasibility for each alternative process.)

b. What are the other party’s alternatives? What are the advantages, disadvantages,

and risks of each alternative? Which alternative is the other’s BAtNA? (Consider

using decision trees [see Appendix 1] to identify alternatives and BAtNAs from

each party’s perspective.)

c. how will you know when it is best to terminate negotiation and move to another

alternative?

d. If the other party has a strong BAtNA, what incentives can you use to encourage

that party to negotiate (e.g., focusing on joint interests or the value of collaboration

and a positive working relationship)?

e. Rather than negotiate for a specific solution, would it be useful to negotiate a pro-

cess designed to produce a fair result (i.e., negotiate an alternative that works as a

BAtNA for both parties)?9

8 Sometimes called “shotgun agreements,” although this term has obvious connotations of violence. 9 Note that Chapter 3 included strengthening one’s BATNA and weakening the other’s BATNA as power-

based strategies. For IBN, the parties should work together to find an alternative that works well for both, rather than try to manipulate each other’s BATNA for tactical advantages.

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That said, negotiators should ensure that they have true commitments from one another. Some parties give the appearance of acquiescence without really giving a commitment to follow through. Others do not like confrontation, so they say they are agreeing, without having any intention of implementing the decisions.

To ensure that commitments are genuine, explore how the other party plans to implement the decisions. Are the plans realistic? Do you detect any hesitance? Have you allowed the other parties to say they really are not satisfied with the agreement? Let them know that you do not want just any agreement but one that both sides view as fair, feasible, and committed to follow. Railroading people into agreements does not work if you are depending on each other to implement the decisions.

In Dorothy and Miranda’s situation, Miranda may be worried that Dorothy will reject her if they do not come to an agreement. Accordingly, Miranda might agree to a plan that she is not really happy with, just to appease Dorothy. In the excitement of coming to an agreement, Dorothy may not be aware of Miranda’s concerns. If these concerns are not raised, Miranda will have trouble following through. To encourage Miranda to raise her concerns, Dorothy might say, “Before we say this is a done deal, let’s review the plan. What do you like about it? [pause for response] What concerns do you still have?” This allows Miranda to raise her concerns without feeling defensive.

Help the other party make commitments. Implementation may require assistance from other people. “Great, we’ve come to an agreement between us. But how do I explain this agreement to my family and to my neighbors?” The conflict does not end when parties reach an agree- ment. Accordingly, both parties have an interest in helping one another with implementation.

Consider a conflict between supervisors and counselors about the agency’s overtime policy. The supervisor and counselors might agree that counselors can take time off on Fridays in lieu of overtime pay. This may suit their interests, but how does the supervisor sell this plan to the program director or other agency powers? The counselors do not want to give the supervisor a problem, because the supervisor’s problem is their problem, too. How can the counselors help their supervisor explain their solution to the program director? If

BOX 6.7 OBTAIN COMMITMENTS

1. What commitments do you need in order to make the proposed agreement work?

(Consider tasks, responsibilities, and processes used to implement the agreement.)

2. What commitments are you prepared to make?

3. What commitments is the other party prepared to make?

4. Are these commitments feasible? If not, how can the agreement be altered to

enhance the feasibility of each party’s commitments?

5. how can you solidify the commitments? (see the discussion on oral vs. written

contracts in Module II.)

6. What strategies can you use to ensure that you and the other party follow through

your commitments?

7. If not everyone affected by implementation is at the table, how do you plan to

secure their commitment (if needed)?

8. how can you help the other party follow through on commitments?

9. What can the other party do to help you follow through on commitments?

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the supervisor cannot follow through on the agreement, how can you alter the agreement to make it more palatable to the program director or other stakeholders? IBN is about working together, giving each other workable solutions.

Box 6.7 provides questions that you may ask yourself and the other party to ensure that both of you are duly committed to the proposed solutions, and to guide further negotiation if either party has concerns about how the solutions can be implemented.

LIMITATIONS OF INTEREST- BASED NEGO TIATION

Since the 1980s, IBN has become one of the most popular models of negotiation among CR professionals. Proponents of IBN maintain that the model promotes joint decision making, so both parties are satisfied with the resolution. The model works particularly well when (a) the parties are flexible, (b) they are able to suspend their individual ambitions, (c) they have faith in their own abilities to negotiate, and (d) they have had prior success in resolving some issues (Pruitt & Carnevale, 1993).

Despite the advantages of IBN, it does have limitations. One or more parties may be reluc- tant to engage in IBN because of lack of trust, anger, or other strong emotions. As game theory demonstrates, mistrust and anger promote competition rather than collaboration (Rapoport, 1974). Roger Fisher, one the key theorists who popularized IBN in the 1980s and 1990s, has recognized that his original framework for IBN did not sufficiently take emotions into account (R. Fisher & Shapiro, 2005). Negotiators can enhance the primarily rational problem- solving process of IBN by learning how to assess and respond to emotions such as anger, fear, hope, anxiety, sadness, pride, compassion, guilt, and embarrassment— whether these emotions exist in oneself or the other person (Ryan, 2006; Zhang, Ting- Toomey, & Oetzel, 2014).

IBN is also difficult to implement when the conflict comes down to a difference between strong principles. On the one hand, if a conflict is based on a difference of positions, the parties can look underneath the positions to see whether they have common underlying interests. On the other hand, if the conflict is based on a fundamental difference between the parties’ core values, there may be no middle ground and no opportunity for reaching a mutually satisfying agreement.

IBN may also be inappropriate when an expedient, authoritative decision is needed. If many parties are involved and a decision is needed quickly, IBN may take too much time. Furthermore, if the decision is relatively unimportant, investing an inordinate amount of time in the decision- making process is counterproductive (Pruitt & Carnevale, 1993).

IBN entails a number of cultural biases, including rationality and individuality. This approach also fits best with cultures that value disclosure and direct confrontation of con- flict. IBN may be less appropriate in cultures that value face- saving and indirect methods of CR over disclosure and confrontation (Zhang et al., 2014). As you work through the materials and exercises, consider whether and how IBN could be reconstructed in order to deal more effectively with such cultural differences.

IBN may be inappropriate if your goal is not to reach a mutually satisfying agreement. If you are being exploited by a more powerful party, using a power- based approach may be necessary. If your objective is to obtain a just solution, a rights- based approach may be more appropriate. If your aim is more visionary, to construct a higher order of relations between individuals and groups, consider the transformative approach.

Finally, some research suggests that the ability to obtain the best joint outcomes is to use a mix of interest- based (integrative) and power- based (distributive) negotiation strate- gies (Han, Bae, & Park, 2012). Although the collaborative focus of IBN can facilitate mutu- ally satisfactory agreements, both parties may also benefit from each other’s attention to their own interests. By giving attention to both their own interests and the interests of the

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other, they may be able to attain higher joint outcomes than when they focus on integrative strategies alone.

KEY POINTS

• IBN is a collaborative problem- solving process in which negotiators focus on their under- lying interests rather than their initial positions.

• To identify underlying interests, ask about each other’s needs, concerns, hopes, expecta- tions, and priorities, including what concerns were rooted in your original positions.

• To generate options for mutual gain, use creative strategies such as brainstorming, con- sulting others, role- reversal, using humor, and hat switching.

• To evaluate options, identify and apply objective criteria that relate to the interests of all parties.

• To enhance communication, use active listening skills, clear and nonjudgmental lan- guage, and open- ended exploration questions.

• To enhance trust and collaborative relationships, act in a manner that is reliable, hon- est, respectful, empathic, assertive, and caring, regardless of whether the other person is behaving in similar manners.

• To improve negotiating relationships, separate the person from the problem, and focus on resolving the key problems.

• Attend to emotions, and balance emotion with reason. • If other strategies are not bringing you toward agreement, consider alternatives to negoti-

ating, including other CR methods that are more likely to help you and the other parties reach a mutually satisfactory agreement.

• Help each other make commitments and support each other to follow through on them.

DISCUSSION QUESTIONS AND EXERCISES

1. SMOKING POSITIONS, RULES, AND INTERESTS: You are working with a client, Cleo, who asks whether she can smoke. You tell Cleo that the office building has a “no smoking” rule. The two of you get into an argument about whether she has the right to smoke. What are each of your positions? If you bargain from a positional orienta- tion, what range of outcomes might you consider? What type of compromise might you reach? If you adopted a rights- based approach to this conflict, what arguments could you and Cleo make? Who would win the rights- based argument?

Now, analyze the case from an interest- based approach. What are Cleo’s underlying interests? What are your interests? Brainstorm 10 to 15 options that might satisfy these interests. How does this interest- based approach differ from the positional approach (R . Fisher et al., 2011)?

2. A SLICE OF EVENING PIE: Your supervisor announces that your agency is extend- ing its hours to serve clients on evenings and weekends. She suggests that you and three colleagues alternate each week, taking either a weekend or evening shift each week. You have a child who is in school from 9 am to 4 pm every weekday. Jules has no children. His commute to the agency takes over an hour, each way. Selma lives close to the agency. She has a physical condition that makes her tire easily, so she needs lots of rest and a regular routine. Whitney wants to go to grad school and work part- time. None of you like the idea of alternating shifts. What options can you generate for mutual gain? How can the expanded schedule become an advantage rather than a problem?

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3. COLD OFFICE: You and a colleague share an office. You find the office hot and stuffy, so you turn on the air conditioner. Your colleague finds the office too cold and wants to turn on the heat. You suggest a compromise, leaving both the air conditioning and the heat off. Your colleague asks whether there isn’t a better solution. What is the nature of this conflict? How else can you resolve this conflict (R . Fisher et al., 2011)?

4. CREATIONISM CRITERIA: Members of a public school board are discussing whether or how to include the biblical story of creationism in a middle school science module pertaining to evolution. They brainstorm a number of options: include creationism for all students, do not include creationism for any students, offer creationism only to stu- dents whose parents consent to its inclusion (opt in), offer creationism to all students unless their parents object (opt out), and offer a separate course on comparative religion rather than teach creationism in a science class. Identify the underlying interests of the various members of the school board. Given these interests, develop a list of objective criteria to evaluate which option is best. See Box 6.3 to assist with the process of identi- fying objective criteria.

5. BROKEN TELEPHONE: Review the following situation and identify the sources of the breakdown in communication. Identify strategies that the parties could use to improve their communication. Claire sends her social worker, Sara, a text message, stat- ing, “I kissed my boyfriend last night. He didn’t respond. I feel so embarrassed. I don’t know what to do.” Unfortunately, she misspelled “kissed” and autocorrect changed it to “killed.” Sara is shocked by the message. She immediately phones Claire and says, “I just received your text message. I thought you loved him. What’s wrong with you?” Claire becomes agitated and responds, “I feel guilty enough. I don’t need you judging me.” The phone connection is muddled, so Sara hears “f- ing me” rather than “judging me.” Sara replies, “I don’t need to take this sort of verbal abuse. I’m trying to help you. If we can’t work this out, I may have to call the police.”

6. SEPARATION ANXIETY: For each statement in the following dialogue, identify whether the speaker is focusing on the problem or the person. For each statement that focuses on the person, rewrite it to focus on the problem and a joint problem- solving approach.

a. NURSE: I’m concerned that you are not taking the medication to reduce your blood pres- sure. We need to make sure that you don’t have another heart attack.

b. PATIENT: You’re very cute, sweetie. c. NURSE: And you’re a dirty old man … I’m serious. I’d like to know why you stopped

taking your meds. d. PATIENT: I was feeling dizzy and light- headed. I could hardly get out of bed without

falling over. e. NURSE: We talked about this before. You need to take your medicine earlier in the eve-

ning , and with something to eat. I know you’re set in your ways, but if you don’t keep up with the medication, you’re putting your life at risk.

f. PATIENT: You never liked me from the day we met. 7. ALTERNATIVE PROCESSES FOR SHARING: Have someone bring a bottle of a

drink that most people enjoy. Select five people in the class, and give them each a glass. The mission for these five people is to identify a method of dividing the drink. All five people would like as much of the drink as possible. The parties agree to the following principles for division: fair, practical, and enforceable. Brainstorm alternatives. Once you have an exhaustive list, apply the principles for selection and negotiate an agree- ment about the process for division. Implement the decision. Evaluate the process and implementation according to the aforementioned interests.

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8. COMMITMENTS: Assume you are the program director of an agency that trains student interns. You ask one of your best therapists, Thor, to supervise a new student intern at your agency. Thor reluctantly agrees. Eventually, the supervisory relationship breaks down between Thor and the student because Thor is not very committed to the process.

a. What are some possible reasons that Thor would accept the student, but then not follow through by providing adequate supervision?

b. What could you have done differently to ensure that Thor was truly committed? c. What does this scenario teach you about negotiation?

9. LEARNING NEEDS: Review the seven boxes in this chapter. Identify five or six interest- based skills or strategies that you want to focus on for professional development. As you work through the role- plays and exercises, remember to practice your chosen skills and strategies.

ROLE- PL AY 6.1: “PROBATION PROBLEM”

Priti was placed on probation after being charged with “attempted arson,” when she was caught trying to set fire to a movie theater. Her attorney presented evidence that she has schizophrenia and was hearing voices telling her to burn the theater. Priti’s probation officer, Oliver, was tasked with ensuring that she complies with the court’s probation order. The order says that Priti must be admitted to the Conflictia Psychiatric Hospital for at least 7 days to have a complete psychiatric evaluation. Priti tells Oliver she can- not go to this hospital because of her Muslim beliefs. She says it goes against her beliefs to be treated by men and the all the psychiatrists at this hospital are male (assume this statement is true). Priti also says the hospital does not follow the dietary rules of halal, so she could not eat anything there. To prepare for this role- play, consider the following questions:

• If Oliver were to negotiate using a rights- based approach, what would his arguments be? What would Priti’s arguments be?

• If you were to adopt an interest- based approach, what are Oliver’s underlying interests? What are Priti’s underlying interests?

• What creative options could be used to help resolve this conflict?

Oliver should use the skills in Boxes 6.4 and 6.5 to improve communication and to build a positive working relationship with Priti. Priti should start the role- play by using rights- based negotiation strategies.

Debriefing : What were the key challenges that Oliver had to manage in this conflict situation? What skills seemed to help Oliver deal with these challenges? What did you learn about applying interest- based strategies and skills?

ROLE- PL AY 6.2: “EXTERNAL EVALUATION CONFLICT”

Rajib works as a researcher who evaluates the effectiveness of publicly funded social ser- vices. Ellen is the executive director of the Conflictia Immigration Program (CIP). CIP helps immigrants find housing, training, and employment, as well as develop social sup- ports and other settlement needs. CIP has recently incurred a 20 percent cutback in fund- ing. This has had a negative impact on morale, as the number of clients is rising and the

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number of staff has been decreasing. The last thing Ellen needs is an “egghead” researcher who knows nothing about immigration services to start interfering with clients and staff. Given the cutback in program funding, spending more money on useless research seems ridiculous.

Rajib is not thrilled with this project, having no prior experience in immigration work. He would rather spend more time on a gerontology project he has been doing. Rajib has already picked up on bad vibes from the agency. He is well grounded in evaluative research and takes great pride in his work. Ellen and Rajib have scheduled a meeting in Ellen’s office for 9 o’clock Monday morning. The ostensible purpose for this meeting is to establish some sort of understanding about how they are going to work together, but Ellen’s real purpose is to make Rajib disappear.

To analyze the impact of different conflict styles, consider the following questions:

• How would Ellen respond if her preferred style is competitive? Compromising? How should Rajib respond to each of these scenarios? How can he try to move Ellen toward collaboration (if that is desirable)?

• How would Rajib respond if his preferred style is accommodating? Avoiding? How should Ellen respond to each of these scenarios?

In the actual role- play, Ellen will play adopt a competitive style. She can use the first ques- tion in the preceding list to prepare for the role- play. Rajib will encourage collaboration. Rajib should use the following questions to prepare:

a. What should Rajib do in advance of the meeting to raise chances for an effective negotia- tion? (Consider the timing, place, setup, and premeeting communication.)

b. To separate the people from the problem, Rajib should identify possible insults or per- sonalizing statements that Ellen might throw at him. For each of these statements, how might Rajib respond in a manner that separates the person from the problem and focuses on joint problem solving?

c. How important is a trusting relationship? If important, what can Rajib to enhance trust?

d. What are Ellen and Rajib’s original positions (i.e., what are they each trying to achieve)? e. What are the interests underlying these positions? f. What are their mutual interests? g. What are the possible options? h. What are the possible advantages and disadvantages for each of these options? (Would a

decision tree or other preparation tool be helpful?) i. How do you evaluate the options (i.e., what criteria or general principles could be

used)? j. If they are not able to reach agreement through negotiation, what are Ellen’s alternatives?

What is Ellen’s BATNA? k. If they are not able to reach agreement through negotiation, what are Ellen’s alternatives?

What is Rajib’s BATNA? l. What challenges might make it difficult for the parties to come agreement? How should

Rajib deal with these challenges?

Discuss these questions in small groups. Identify key strategies that you want to test or practice. Role- play the situation using these strategies.

Debriefing : Which strategies seemed to be effective? Which strategies seemed ineffective? What did you learn for future negotiations?

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ROLE- PL AY 6.3: “MALPRACTICE MELEE”

Lucinda is providing life coaching to Carl, a recently unemployed accountant who is trying to find meaning in all his adversity and put his life back together. Lucinda advises Carl to obtain a certain type of accreditation as a financial planner so he will be more marketable. Carl pursues this accreditation, but then discovers that the online educational program where Lucinda referred him is not properly accredited. Carl is outraged with Lucinda. He threatens to sue her for malpractice. Lucinda invites Carl to meet to resolve the issues in an amicable manner. The purpose of this role- play is to practice skills that improve communi- cation and improve relationships. To prepare for this meeting, Lucinda should plan how to implement the following strategies:

• Show genuine interest and concern for the client. • Explore the client’s story using open questions (allowing the client to ventilate). • Demonstrate empathic understanding through active listening skills (paraphrase, reflect

feeling, summarize). • Invite the client to participate in joint problem solving rather than going to court. • Help the client save face (move back from a position and consider other options).

Debriefing : What was the client’s primary concern? What strategies seemed to help with the emo- tional issues? If no agreement was reached, what other alternatives could the parties consider? Should Lucinda invite her attorney to this meeting? Why or why not?

MAJOR ASSIGNMENTS

The following role- plays may be used for major assignments in the course. Each assignment calls for a written analysis of a CR exercise in which you participated (see Appendix 2 for a sample assignment). Include the following content areas for your analysis:

1. Heading— Indicate the assignment name and number, student(s) submitting this paper, professor’s name, course name, educational institution, and the date submitted.

2. Introduction— Briefly describe the context of the role- play (what was the conflict about). Define three or four of your educational objectives for the assignment. What did you want to learn? Focus on your own objectives as a developing CR professional, rather than the particular details of the substantive conflict. For example, “My first learning objective for this assignment was to develop a practical understanding of how game theory (Rapoport, 2017) can be applied in the context of a conflict between professionals in a social agency,” not “The purpose of the assignment was to get Pam to stop calling Arnie a wimp and to get Arnie to promise not to slash Pam’s tires every time he was mad at her.” [1 paragraph]

3. Preparation— Describe the steps that you and the other parties took to prepare for this exercise— for example, reflection or mental preparation; use of instruments to aid in preparation; theory and approaches from your readings that you planned to apply; steps taken to set up the meeting; issues you expected to deal with; and strategies you prepared. Include brief descriptions of key concepts from your readings (you should use 3 to 10 scholarly books or articles in addition to this textbook). If you used any preparation tools or questions, you can attach these as an appendix or simply summarize how you used them. If you decided to enter the role- play with little or no preparation, indicate this, but also note what types of preparation might have been useful in retrospect. [1 to 3 pages]

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4. Overview of the Intervention— Briefly describe the overall process of the CR interac- tion. Write this narrative in either third person or first person, depending on which you believe will be more clear and concise. [2 to 3 pages]

5. Process Recording— Use the following table format to develop a process record- ing that provides a detailed analysis of key interactions during the role- play. The left column includes a word- for- word transcript of what the parties said during these key interactions. You do not need to transcribe the whole role- play, just the key interac- tions. Video- recording your role- play can be helpful for transcribing; otherwise, use your memory. Start a new row each time a new client or professional speaks, so the comments across each row relate to just one person’s response. The second column describes what you observed about the client(s) or other parties during that segment of the role- play (e.g., “The client was smiling from ear to ear”; “The client raised her voice”). Also, include different interpretations of what you observed (“The raised voice may have indicated she was either nervous or angry”). The third column indicates the thoughts or feelings of the work at that point in the interaction (e.g., “I thought she was irritated with me, so I felt defensive”). The right column indicates skills and theory that either were used or could be used by the professional at this point, for example, “Hatley’s (2017) anger theory suggests that anger often masks feelings of insecurity, and power- based CR suggests that I could play on the client’s insecurity in order to put her on the defensive.” [5 to 8 pages]

6. Critique— Provide an overall analysis of what worked well, what did not work well, and why. Be sure to use nonjudgmental, positive, future- focused language. Rather than “My pathetic attempt to use structured role reversal really sucked,” try “I was trying to use role reversal so that Mabel could gain an insight into Garnet’s concerns. Mabel was not ready to engage in a role reversal, because I had not dealt with her anger (Sibyl, 2018). If I were to be faced with this type of conflict in the future, I would try. …” Your critique may also include any ethical, cultural, or practical issues that arose in trying to apply certain theories in your role- play. [3 to 6 pages]

7. Conclusion— Describe any follow- up that you would suggest for dealing with the con- flict in the exercise. Identify your key learnings from this exercise, including how the role- play and analysis may have added to your understanding of what you have read and discussed in class. Was there anything that you learned that went beyond what was covered in class and in your readings? [1 to 3 paragraphs]

I have provided a sample assignment and process recording in Appendix 2 to illustrate how to perform this analysis.

NARRATIVE (VERBATIM)

OBSERVATIONS OF CLIENT

AND POSSIBLE INTERPRETATIONS

REFLECTIONS (THOUGHTS AND FEELINGS OF THE

PROFESSIONAL[S] )

SKILLS, THEORY, AND

ALTERNATIVES

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Assignment 6A: Phyllis’s Case

Phyllis has recently been admitted to the psychiatric unit of Conflictia Hope Hospital. She was having auditory hallucinations that caused her to destroy most of the furniture in her apartment. She was seen by a psychiatrist, Dr. Nguyen, who admitted Phyllis to the hospital on an involuntary basis because she was a danger to herself and others. Previously, Phyllis has been diagnosed as having schizophrenia. She has been able to function well when she stays on her medication. However, she has a tendency to stop taking her medication when she is not feeling well.

Sandy is a social psychologist who has been working with Phyllis in the community. Phyllis wants to get out of the hospital right away and has been uncooperative with hospital staff. The hospital has contacted Sandy and asked her to meet with Phyllis, because Sandy has developed a positive relationship with Phyllis. Essentially, the hospital is asking Sandy to negotiate a treatment plan with Phyllis on their behalf.

Sandy’s Confidential Facts (Not to Be Read by Phyllis) You do not work for the hospital, and you need to define what your role will be in meeting with Phyllis. You believe she can be returned to the community, but you do not have the power to decide this. You also believe that Phyllis does need some type of monitoring to ensure that she is safe. If she does not follow through on her medication, then she is likely to continue to have more problems. You are open to being creative and realize that medication and ongoing hospitalization are not the only options to consider. Use IBN to try to develop a contract with Phyllis to deal with the conflict. Also, consider what types of commitments you may need from Phyllis and others. Refer back to preparation tools in this and other chapters in this module to help you strategize for this role- play.

Phyllis’s Confidential Facts (Not to Be Read by Sandy) When Sandy arrives, you are quite angry with her. You think she is teaming up with the hospital against you. You hate the psychiatric ward at the hospital, because you don’t think of yourself as crazy or sick. You acknowledge that things got out of control at home, but you believe this will not be a problem in the future. You went off your meds for a few days because you thought they were turning you into a zombie— you’ve been feeling lethargic and unmo- tivated. You also feel embarrassed about the nervous twitches that you have developed from the meds. You are scared about having hallucinations again, but the hospital also scares you. Your mother was admitted to a mental hospital when you were 12, and she never got out. You have heard voices in your head telling you that Dr. Nguyen wants you locked up forever.

Your main goals are to get out of the hospital and to be left alone. You want Sandy to promise to get you an immediate discharge from the hospital. You want to be treated like an adult and a human being. The nurses and hospital staff are disrespectful, talking to you as if you were an imbecile or an infant.

To prepare for this meeting, think about how Phyllis would present herself and what questions that you might expect from Sandy. You do not have to show great insight into your issues, unless Sandy draws these out during your meeting. Begin by using power- and rights- based strategies (see Chapters 4 and 5). Eventually, you may allow Sandy to engage you in IBN if she uses appropriate IBN strategies.

Assignment 6B: Methadone Maintenance Case

You’re Off Drugs and Alcohol (YODA) is a substance abuse treatment program. Because of concerns about the spread of HIV and AIDS among intravenous drug abusers— through

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sharing unclean needles— YODA has decided to open up a methadone maintenance clinic in the Huntington Village of Conflictia. Methadone maintenance is a chemical therapy used for people addicted to heroin. Methadone is a synthetic opiate that is used to prevent heroin users from going through withdrawal. Studies show that methadone maintenance is related to improved social functioning in the family, at work, and so forth. Darth is the direc- tor at YODA. One of Darth’s roles is to maintain positive relations within the community.

Not In My Backyard (NIMBY) is a community group in Huntington that opposes the plans for the methadone program. NIMBY believes the program will attract “undesirables” to their neighborhood, particularly minorities such as Hindus and Scots. NIMBY fears the clinic will put their children at risk. It believes the clinic will lead to increased crime and vio- lence. NIMBY is also opposed to the concept of spending taxpayer money to give addicts a psychoactive drug, even if it is methadone. Sidney is the spokesperson for NIMBY. Sidney’s position is that YODA must not be allowed to open any type of methadone maintenance clinic. NIMBY has threatened to go to court for an injunction to prevent YODA from open- ing its program in its neighborhood. In response, Darth called Sidney for a private meeting in order to try to settle things out of court.

Darth’s Confidential Facts You see NIMBY as a group of rednecks for whom you have little patience. You find Sidney particularly shallow and abrasive. However, you are responsible for ensuring the best pos- sible services for YODA’s target population. That means that you may have to work out an amicable arrangement with NIMBY. You could go ahead with the plans without consulting NIMBY, but at what costs?

Conflictia has no other methadone maintenance program. Three of your clients have tested HIV positive in the last 2 months (one woman and two men). Methadone main- tenance is not a cure- all. There is actually a low level of success in terms of detoxification from methadone and all other drugs. However, methadone does work as a means to stop- ping intravenous drug use. It also fits with your agency’s philosophy of “harm reduction,” as opposed to abstinence. The only other location that would be suitable for the program would be the Bridal Path community. Bridal Path has a sister organization to NIMBY called NOTE (Not Over There Either), and there would be even fiercer resistance if YODA tried to set up a methadone program there. Accordingly, you see Bridal Path as a nonstarter. Huntington is the only location that will work. It is accessible via public transit and you already have land where you can build a clinic.

Sidney’s Confidential Facts You represent a group of upstanding citizens in the Huntington community. You want to ensure that the streets are safe from drug users and traffickers. The proposed metha- done maintenance program was initiated without any consultation with the community. Accordingly, you believe that YODA does not care to hear your views. Darth appears to show concern, but you think Darth is just a “bleeding heart liberal.” There are two schools and a day- care program within three blocks of the proposed clinic. However, you do not believe that there is any good place for it. You do not agree with the idea of handing out free drugs to anyone. It just encourages more drug use and crime, and does nothing to prevent AIDS. If people are concerned about stopping the transmission of AIDS, then they would be well advised to get off all drugs. You have seen news reports from Zurich where they allowed needle use in a public park, and it attracted drug users from all over Europe. You do not want Huntington to become a magnet for those types of people. One possibility for the clinic would be to place it in the Bridal Path neighborhood. This is not your first choice,

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since you oppose any distribution of methadone or other opiates, but at least the Bridal Path is far from your neighborhood.

You are not sure what will happen if the case goes to court. There are 60– 40 odds that you can get temporary injunction, and only a 20 percent chance of gaining a permanent injunc- tion. The legal costs may be prohibitive, but you may be able to scare off YODA by initiating a court proceeding (even if you have no intention of going through with a full trial). You may also try to solicit political pressure from your local member of the legislative assembly, who happens to be leader of the right- of- center ROC Party, Mr. Alby Wright. Begin the role- play by using power and rights- based strategies (see Chapters 4 and 5). Eventually, you may allow Sandy to engage you in IBN if she uses appropriate IBN strategies.

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