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University of New South Wales Law Journal Student Series |
MATTHEW T DOYLE
Negotiation is a fundamental and unavoidable aspect of human existence and is encountered and undertaken by people around the world on a daily basis.[1] Avoiding the need to negotiate would require avoiding human interaction altogether, however, in the very process of doing so, one will almost certainly engage in negotiation with themselves due to a conflict between “impulsive wants” and “reasoned wants” known as the “multiple-selves problem”.[2] Negotiations can be affected by a broad range of factors and influences including: personality and upbringing;[3] emotions and emotional intelligence;[4] age;[5] sex;[6] and culture,[7] among others. In many instances, these factors can adversely influence a negotiation, whether by derailing the negotiation or by damaging relationships between parties. This occurs partly because these factors comprise one’s identity,[8] and when aspects of one’s identity feel threatened, emotionally-charged conflicts and ineffective negotiations can ensue.[9]
Negotiation theory and research has developed a great deal over many years,[10] and has had a substantial number of contributors, many of whom have posed theories in an attempt to improve experiences and outcomes in negotiations by addressing one or all of the aforementioned factors. Of these contributors, Roger Fisher and William Ury have been perhaps the most notable and influential. They are responsible for the widely lauded theory of ‘Principled Negotiation’, which is a form of ‘interest-based negotiation’ adopted at the Harvard Negotiation Program and detailed in Getting to Yes: Negotiating Agreement Without Giving In (“Getting to Yes”).[11] The important contributions of Bruce Patton as editor of the first edition and as co-author of the second and third editions are also noted. Whilst some have claimed that there is nothing particularly new about Principled Negotiation,[12] many are of the view that “Fisher and Ury changed the game and the debate” in regard to negotiation theory.[13]
In an increasingly globalised economy, cross-cultural negotiations are inevitable and necessary.[14] Whilst many contextual factors can influence negotiations, culture is perhaps the most significant.[15] Factors such as personality and upbringing are partly forged by culture and cultural identities,[16] whilst research has highlighted a significant interplay between culture and the impact of age,[17] emotions,[18] and sex or gender on negotiation outcomes.[19] It is undebatable that cultural differences and misunderstandings have the potential to derail negotiations.[20] Some have claimed that most negotiation theory is dominated by “values and assumptions that are Western”,[21] however, in ‘Negotiating With the Russians and With Your Spouse’, Fisher suggests that the tools of Principled Negotiation are universal and result in effective and efficient negotiations in spite of influencing factors such as culture.[22] This essay will examine this claim and the extent to which it holds up in the context of cross-cultural negotiations. It will be argued that cultural divides pose limitations for Principled Negotiation, but that these limitations can be managed through integrating further research on intercultural negotiation and the role of emotions in negotiation into the method in order to provide better experiences and interest-based outcomes in cross-cultural negotiations.
Principled Negotiation is an interest-based approach to negotiating documented in Getting to Yes by Fisher and Ury, first published in 1981. Principled Negotiation has attracted many supporters but also a substantial number of critics, some of whom have claimed that there is nothing particularly new about Principled Negotiation and that the recommendations that follow from the theory “have a long history” in the “field of alternative dispute resolution”.[23] It is true that the distinction between distributive bargaining, the act of splitting the pie or claiming value for one’s self, and integrative bargaining, which involves expanding the pie by creating value for all parties to the negotiation, was earlier recognised in Walton and McKersie’s “foundational negotiation theory” in 1965.[24] Indeed, some attribute the idea of interest-based bargaining to Mary Parker Follett as far back as 1942 or even earlier writers.[25]
Nevertheless, the significance of Principled Negotiation cannot be overstated. Whilst Fisher and Ury “did not discover interests-based bargaining ... they did popularise it”.[26] Over eight million copies of Getting To Yes had been sold in over thirty languages across all editions by 2013.[27] Ury currently claims the book has sold over fifteen million copies across 35 languages.[28] The theory has also been described as “path breaking... and has quickly become a focal-point in mediation training courses” with mediators and mediation training courses “still heavily biased towards interest based negotiation”.[29] Moreover, “Collaborative Law or Collaborative Practice” is also “explicitly based” on the interest-based negotiating principles espoused in Getting To Yes, with lawyers’ professional associations urging its use, and practitioners’ guidelines suggesting that professional codes of conduct for lawyers should require its use.[30]
Principled Negotiation is presented as an alternative to conventional strategies that Fisher and Ury claimed were essentially always unsatisfactory.[31] The conventional approach presents negotiators with a dilemma and with only two ways to negotiate, being “soft” or “hard”.[32] The soft approach avoids personal conflict, readily makes concessions, and aims for an amicable solution.[33] The soft negotiator is often left “exploited and feeling bitter”.[34] The hard negotiator regards negotiations as a “contest of wills” where the one who “takes the more extreme position and holds out the longer” wins, or at least “fares better”.[35] The hard response exhausts the negotiator and their resources and generally harms the relationship with the other side.[36] The authors claim that negotiations are conventionally a trade-off between the soft and hard approach, requiring the balancing of objectives against “getting along with people”.[37]
Fisher, Ury and Patton describe the conventional approach, positional bargaining,[38] as a significant problem because it is inefficient,[39] often damages relationships,[40] can lock parties into unwise outcomes,[41] and has disastrous consequences in multi-party negotiations.[42] The conventional approach is often also described as adversarial or distributive.[43] In distributive bargaining, which has also been referred to as competitive, zero sum, win-lose, or value-claiming,[44] there are fixed resources to be distributed. One side’s gain is the other side’s loss, and the dominant concern is maximising your own share with tactics such as manipulation, withholding information, and forcing,[45] perhaps through threats.
Adversarial bargaining is described as positional bargaining because it is characterised by parties focusing on their respective ‘positions’ with the primary aim being to maximise one’s own outcome without recognising the underlying interests of either party. There is usually an absence of mutual gain and little attention to relationship issues. In some cases, this mindset is driven by a “threat response” as a result of the “Tribes Effect” which occurs “when a meaningful aspect of our identity feels threatened”.[46] In other cases, it may be driven by perceived requirements of one’s role or relationship. It has been suggested, for example, that there is a degree of role conflict for lawyers representing clients in negotiations, with Jonathan Hyman questioning whether the tasks, goals and fiduciary duty of lawyers as trial advocates are consistent with “what they must do if they also seek to create wise agreements”.[47]
Principled Negotiation, on the other hand, is presented as the “third way to negotiate” which is “neither hard nor soft”, but both.[48] It advises one to be “soft on the people while remaining hard on the problem”.[49] The key elements to Principled Negotiation, which will be examined shortly, are premised on an understanding of objectively “fair standards independent of the will of either side”, “no tricks or posturing”, and getting what is deserved based on merit while being decent and not being taken advantage of through your fairness.[50] It aims to achieve win-win outcomes, focusing on “bettering the interests of everyone and finding solutions that are mutually beneficial”.[51] Importantly, it “removes the all or nothing attitude”.[52] Principled Negotiation is offered as a universal approach. It is argued that whilst “every negotiation is different...the basic elements do not change”,[53] and that irrespective of whether the negotiation is formal or less formal, collective or individual, two-partied or multi-partied, Principled Negotiation can be used effectively.[54]
Principled Negotiation has also been described as integrative bargaining, collaborative and value-creating.[55] It requires a recognition of the validity or reasonableness of each other’s interests and objectives. It is common to see those applying Principled Negotiation using strategies such as cooperation, information sharing and mutual problem solving.[56]
There are four primary chapters outlining the “method” of Principled Negotiation, however, there are also strategies provided for when the other side is more powerful, won’t play, or uses dirty tactics.[57] In essence, there are seven key elements to Principled Negotiations, which are derived from Sections II and III of Getting To Yes and summarised effectively in pages 183-193.[58] These elements, or “sources of power”,[59] are: relationships; communication; interests; options; legitimacy; alternatives; and commitment.[60]
The first chapter of Section II concerns “separat[ing] the people from the problem”.[61] This chapter espouses good working relationships as a key source of power,[62] and forms part of the discussion of the key element of communication,[63] although this element is addressed throughout the book. Separating the people from the problem includes consideration of the emotional aspects of the matter in conflict or otherwise the subject of the negotiations.[64] This is because “every negotiator has two kinds of interest: in the substance and in the relationship”.[65] In this sense, negotiations are often emotionally charged. “Separating the people from the problem” is something that one must “keep working at”, dealing “with people as human beings and the problem on its merits”.[66]
The role of emotions as the “fundamental force of conflict” was expanded on by Fisher and Daniel Shapiro in other works,[67] with Shapiro later observing “how easily the world explodes in the lives of divorcing couples, competing business units, and rival factions”.[68] Shapiro also noted that emotionally charged conflicts arise from a threatened sense of identity,[69] advising that one should consider the “Five Pillars of Identity” to identify the nature of the threat.[70] It is suggested that a threat to identity can elicit an “adversarial mindset that pits your identity against that of the other side”.[71] In this regard, it is important to recognise and counter the lures of the “tribal mind”,[72] whilst also being aware of “vertigo”, the term given to describe “a warped sense of consciousness in which a relationship consumes your emotional energies”.[73]
The next chapter of Getting to Yes advises to “focus on interests not positions” (emphasis added). The “difference is crucial” as “interests define the problem” to be solved.[74] Interests are the “desires and concerns” that “motivate people” and from which a party decides their respective positions.[75] The interests behind the position may include both shared and competing interests of the other party.[76] It is important not only to understand the interests of the other party to a negotiation, but to also fully understand one’s own interests.[77] To identify interests the authors suggest that one should practise empathy, asking “why” and “why not” and reflecting on the answers.[78]
The third chapter in Section II concerns “inventing options for mutual gain” (emphasis added).[79] This “does not come naturally” and may not happen due to four obstacles:[80] “premature judgement”; “searching for the single answer”; assuming that the size of the “pie” is fixed; and thinking that the other party’s problem is theirs alone to solve.[81] The key to inventing creative options lies in avoiding critical judgement of options whilst inventing them, broadening the options on the table, seeking mutual gains, and making the other party’s decisions easy.[82] Many critiques of Principled Negotiation claim, at least in part, that it is unrealistic to assume that “mutual gains” and “shared interests” are always viable given the vast number of possible differences between parties.[83] In some regard, this is a flawed view and a common misunderstanding, as option-generating for mutual gain does not rely on consensus or agreement by parties on all issues, interests, criteria or otherwise. Rather, it is the differences in interests and perceptions that often allow for the generation of options through “dovetail[ing]” interests.[84] The classic, albeit simplistic, example is the dispute over an orange between two children who split the orange in half without realising that one child only wanted the peel for baking whilst the other wanted to eat the fruit inside.[85]
The fourth feature of the method is to “insist on using objective criteria”,[86] which can also be described as the element of legitimacy. Despite the other elements being applied, they cannot conceal the “harsh reality of interests that conflict”.[87] In order to reach “wise” outcomes amicably and efficiently it is necessary to employ objective measures and criteria.[88] The more “standards of fairness, efficiency, or scientific merit” that are applied to the particular problem, “the more likely you are to produce a final package that is wise and fair”.[89]
The next key element, alternatives, is discussed in chapter six.[90] The chapter specifically considers the development of one’s “BATNA” (Best Alternative To a Negotiated Agreement) as “perhaps the most effective course of action” when negotiating with a (seemingly) more powerful party.[91] In the process of selecting your best alternative, however, one must inevitably consider all of the alternatives available before improving on those that are more promising and then choosing the most favourable.[92] Importantly, a BATNA protects you from making an unwise agreement under certain external pressures without the high cost of “using a bottom line”,[93] which is not the same as a BATNA, given that a BATNA can develop as circumstances change and more information becomes available.
The final element is commitment. The authors advise to “think about closure from the beginning” and “consider crafting a framework agreement” in one’s preparation and as the negotiation progresses.[94] Ideally, one should “move towards commitment gradually” and “be persistent in pursuing your interests but not rigid in pursuing one particular solution.”[95] After exploring issues, one should be prepared to make an offer as “a natural outgrowth of the discussion”.[96] Finally, the authors advise that one should be “generous at the end” of the negotiation by considering giving the other party something they value as a “final gesture” which aligns with your interests.[97]
Getting To Yes is one of the most widely-lauded texts on negotiation, with some claiming “it is the single most important book on the topic”.[98] James Sebenius, former director of the Harvard Negotiation Program, argues that probably the most significant contribution of Roger Fisher and his colleagues is that in Getting To Yes, they “constructed frameworks of aphorisms that, on average, respond to widely perceived practitioners needs” and ‘systematically direct negotiators’ focus to aspects of the situation that will reliably generate helpful prescriptions’.[99]
Sebenius describes the key elements in slightly different terms: ‘focus on the other party’s position in order to craft a “yesable proposition”; make “interests” central; generate fresh, mutually beneficial ideas; use “objective criteria” to transform negotiations from a test of wills to a search for fairness principles’; and “pay attention to BATNAs”.[100] Sebenius believes that these “five contributions fit together and support each other nicely”,[101] and taken together are the most “enduring” contributions to negotiation.[102]
Andrea Kupfer Schneider argues that empirical evidence based on surveys of lawyer effectiveness in the US ‘should serve to shatter the myth that adversarial bargaining is more effective and less risky than problem solving’.[103] The empirical study matched perceptions of lawyer effectiveness with perceptions of problem solving (integrative) versus adversarial negotiation styles. The findings included: only 9% of adversarial lawyers were effective negotiators and only 9% of effective lawyers were adversarial; 91% of ineffective lawyers were adversarial; 91% of effective lawyers were problem-solvers; more than half of the problem solvers were effective; and only 4% of problem solvers were ineffective.[104] Schneider also concluded that adversarial bargaining was tending over time to “become more extreme...and less effective” and that this is the key lesson for lawyers ‘hoping to become effective “Rambo” negotiators’.[105] Schneider also acknowledged the study’s limitations in that the self-selecting respondent population may not have been representative of the entire population and that the respondents’ ratings of others was subjective.[106] Despite the limitations, Schneider concluded that lawyers who
maximize their problem-solving skills balancing assertiveness and empathy ... are more effective [and are] able to enlarge the pie through creativity and flexibility ... understand the other side with listening and perceptiveness ... argue [with] ... confidence, poise and zealous representation ... and set the standard [for others].[107]
Although some claim that Principled Negotiation “clearly has an inherently ethical concern in its content for the interest of others and its recourse to principled criteria when conflict arises”,[108] it is also claimed that the extent to which Principled Negotiation is inherently ethical may be overstated. Just as not all adversarial or positional negotiators “exaggerate, bluff and engage in deceit” it has been argued that interest-based negotiators are not “premised on honesty and candour” and that ethics and Principled Negotiation are “separate issues”.[109] Principled Negotiation “says only that you should not deceive the other party about your core, underlying interests”.[110]
It has also been argued that Getting to Yes provides “false promises” in relation to Principled Negotiation being an "all-purpose strategy of negotiation", and that “the method is built on incomplete definitions and erroneous assumptions”.[111] This seemingly raises questions about the applicability of Principled Negotiations in negotiations with specific strategic goals. Other criticisms include that Principled Negotiation “oversimplifies the multiplicity of types of negotiation processes”,[112] and that it misunderstands the concept of strategy.[113]
Furthermore, Bobette Wolski has identified limitations of Principled Negotiation in its context as an interest-based negotiation method, including a number of situations or circumstances where it is not possible or desirable.[114] These circumstances include: “single-issue” or “one shot” bargaining with little or no scope for negotiations and where parties will not meet again and there is limited scope to broaden the issues;[115] “where there are conflicting interests and/or values”;[116] where there is “conflicting objective criteria”;[117] where there is a “mixed-nature” to the negotiation;[118] and where parties are “unwilling or unable to negotiate”.[119] It is worth noting that the final point has been acknowledged as a limitation by Ury and associates.[120] Wolski, however, importantly noted that “single-issue negotiations” are rare or potentially nonexistent outside of theoretical domains.[121] Whilst Wolski’s points regarding conflicting interests, values and objective criteria fall under the category of criticisms earlier addressed as derived from a flawed understanding, the final two points regarding mixed-nature negotiations and parties being “unwilling or unable to negotiate” are particularly significant and noteworthy limitations.
Although Fisher and Ury claimed that Principled Negotiation applies universally, these critiques, as well as further work by both Fisher and Ury themselves (and associates), have identified particular circumstances where Principled Negotiation faces limitations.[122] These also include: where parties’ interests “are so opposed agreement is not possible”; where there are “divergent perceptions of who is right ... or more powerful”, and in significant public policy questions,[123] where “rights based procedures such as litigation” may be more appropriate.[124]
One of the most common domains in which “mixed-nature” negotiations and an unwillingness or inability to negotiate proliferate is in cross-cultural (or “intercultural”) negotiations, where “underlying differences in... culturally-normative strategies”, among other “cultural differences”, result in “worse economic outcomes” than in intracultural negotiations.[125] The other domain where such issues commonly arise is in involuntary negotiations, where one or both parties are not willing participants and may not desire any improved or continuing relationship. Enterprise (collective) bargaining in Australia to some extent provides examples of involuntary negotiations in circumstances, for example, where one party is compelled to negotiate whether by statutory orders,[126] majority support determinations,[127] or coercion from industrial action. These situations can result in “superficial compliance”, referred to as “surface bargaining”, [128] in order to avoid further orders or penalties. In Endeavour Coal v APESMA,[129] the Federal Court of Australia upheld that Endeavour Coal had breached “statutory good faith bargaining requirements” in failing to undertake “genuine consideration” of proposals from the other party.[130] Such circumstances, where form is prioritized over substance, clearly present major limitations for Principled Negotiation. A discussion on the applicability of Principled Negotiation in involuntary industrial negotiations is a substantial topic which could form the basis for an entirely separate essay. This essay, however, will predominantly consider the limitations of Principled Negotiation in respect of cross-cultural negotiations.
Hofstede defines culture as ‘the collective programming of the mind that distinguishes the members of one group or category of people from others’.[131] Culture is collective and is “manifest in a groups’ values, beliefs, and norms”, “behavioural patterns ... rituals and symbols, and in artifacts”.[132] When visualising “the characteristics of individuals” as varying along “some bell curve”, “variation between cultures” can be described as a “shift of the bell curve”.[133] Culture can be described in terms of tribes, ethnic groups, nations, organisations, occupations, genders, generations and social classes.[134] Societal, national and gender cultures are often “much deeper rooted” within the subconscious mind and are reflected in “broad tendencies to prefer certain states of affairs over others”.[135] National cultures specifically are reflected in differing values, among other things. On the other hand, culture acquired at school or work is exchangeable and resides in visible and conscious practices such as “the way people perceive what goes on in their organizational environment”.[136] Hofstede and associates have also identified cultural differences between provinces and regions within nations, although noting such differences to be less pronounced than between nations.[137]
It is widely recognised that culture is a complex field, with organisational, intranational and international cultures differing across various dimensions and attributes. This essay is primarily concerned with national culture, that is cultural differences between nations, in respect of the limitations posed for Principled Negotiation.
Hofstede’s model identifies six dimensions of national culture: power distance; uncertainty avoidance; individualism versus collectivism; masculinity versus femininity; long term versus short term orientation; and indulgence versus restraint.[138] Hofstede argues that national culture dimensions can change over a long period such as “50 to 100 years” or on account of “extremely dramatic outside events”.[139] Relationships have also been observed between national culture, in terms of Hofstede’s dimensions, and personality dimensions based on the “Big Five personality dimensions” of neuroticism, extraversion, openness to experience, agreeableness and conscientiousness.[140]
The effectiveness of various strategies between negotiators of different national cultures has been documented “dating from Herodotus to a plethora of recent empirical studies”.[141] It is claimed that this research shows that negotiators in different cultures “systematical[ly] use different strategies and that strategies that create value in one culture may not do so in another”.[142] It is undeniable that national cultural differences have an effect on process and outcome in negotiations,[143] however it has been noted that “the study of intercultural negotiation poses a unique set of distinctive challenges”.[144] Notably, the influences of a cultural group can be difficult to separate from an individual’s “reference to their multidimensional personal experiences and surroundings”.[145] Moreover, some claim that professional culture and corporate culture may be “at least as significant in predicting negotiating choices as any national affiliation”.[146]
It is important then to identify a framework through which the effectiveness of Principled Negotiation in cross-cultural contexts can be analysed whilst minimising value distortion from other influences. In some regard, Hofstede’s national cultural dimensions may offer a suitable frame of reference, as they provide “a good foundation of the social and cultural driving factors that perpetuate negotiation styles”.[147] For example, analyses of cultural differences in negotiations through this framework have identified that in more typically “feminine” cultures and societies both males and females are more modest and tender,[148] whilst masculine cultures often have children’s games that tend to be more competitive, embodying a win-lose orientation.[149] The same studies observed that, as a result of these tendencies and upbringings, negotiators from masculine societies tended towards adversarial approaches to conflict resolution and negotiations whilst those from feminine societies demonstrated more cooperative behaviours and strategies associated with Principled Negotiation.[150]
This framework, however, can overlook other cultural variables. One example cited by da Silva demonstrated a negotiation where all negotiators were members of more masculine societies, being from America, Australia and Japan. Despite Japan having the highest masculinity index of the three cultures, “it was the one that settled the negotiation through compromise, which is considered a femininity trait.”[151] There are clearly limitations faced by any framework in this sense, however, it is suggested that another more valuable frame of reference is Brett and Gelfand’s negotiation-specific cultural analysis through the lens of “five assumptions that dominate Western culture theorizing about negotiations” given the dominance of Western “values and assumptions” in most negotiation theory.[152]
This analysis examined cultural differences between Western and non-Western cultures across five common assumptions identified in negotiation theory which “reflect Western cultural traditions”.[153] These assumptions were: the “rationality assumption”;[154] the “assumption of economic capital as a criterion for negotiation outcomes”;[155] the “dispositional attributions” assumption;[156] the “questioning approach to information sharing”;[157] and the “direct confrontation” of conflict assumption.[158] The assumptions are noted as typical Western negotiation approaches to the areas of persuasion, motivation and evaluation of outcome, attribution and causal interpretations, communication, and confrontation of conflict.[159]
Substantial differences were noted between Western and non-Western cultures in respect of all five areas. Concerning persuasion, it was noted that whereas negotiators from Western cultures tend to approach the area of persuasion through rationality, relying “on facts and reason” to draw concessions from their counterpart,[160] the “dominant response to the question of persuasion” “in non-Western cultures... is instead emotional appeals” focused around “status and responsibilities”. This difference is attributed to, amongst other things, the “holistic system of thought” and “high-context communication” of non-Western cultures in contrast with the “individualistic culture” based on “analytic systems of thought” in Western cultures.[161]
Regarding motivation and the evaluation of outcomes, Brett and Gelfand observed that “economic capital” (the “result of claiming for yourself as much value created in negotiations as possible”), which is often measured in “individual gains and joint gains”, is prioritised by negotiators in Western cultures due to their “individualist values”.[162] On the other hand, ‘in non-Western cultures relationships are the dominant motive, and economic capital is the subordinate motive’ primarily due to the “structure of social networks in these cultures” and the “values for social harmony and hierarchy”.[163] Tony Fang has reiterated the importance placed upon interpersonal relations by Chinese negotiators,[164] which can be described by the term guanxi (among others),[165] a type of “personal connection” that demands “reciprocal obligations” between the parties.[166]
Analysis of attribution and “causal interpretation of events” identified that “Western culture observers ... typically make the fundamental attribution error” by “underestimating the impact of situational factors and overestimating the impact of dispositional factors”, which consequently leads to more competitive behaviours.[167] This is again attributed to individualist values and the Western cultural view that “behaviour is shaped by personal preferences and dispositions”.[168] In contrast, people in non-Western cultures “believe that human behavior is constrained by roles”, group norms and scripts, and tend to make situational attributions consistent with “the hierarchical values of these cultures”.[169]
In regard to communication, the authors identified that negotiators in Western cultures typically adopt a “questioning strategy” which involves asking the other party about their preferences (and reciprocating when asked) to build an understanding.[170] This is linked to the direct, explicit “low-context communication” style adopted in these cultures.[171] Negotiators in non-Western cultures generally instead take a “proposal approach” by making “single-issue and multi-issue proposals, and draw[ing] inferences” about interests and priorities from the proposals and counterproposals of the other party.[172] This has been linked to the “indirect and implicit” high-context communication styles usually seen in non-Western cultures.[173]
Finally, the analysis of approaches to confronting conflict revealed that negotiators in Western cultures typically undertake “direct confrontation” by talking about a problem with a counterpart directly rather than avoiding or withdrawing.[174] This has been linked to the Western characteristics of low-context communication and individualism.[175] In contrast, non-Western cultures typically share the predominant view that “not talking is good” (emphasis in original) and specifically in East-Asian cultures, significant value is placed on silence.[176] This is again linked to typical non-Western cultural values of “collective interests and social harmony ... hierarchy ... [and] high-context communication”.[177]
In terms of the cultural differences observed concerning persuasion, Principled Negotiation does, to some limited degree, address how emotional and affect-based communication, which is predominant in non-Western culture, should be managed or addressed in negotiation contexts.[178] Getting To Yes advises that one should “recognise and understand emotions, theirs and yours”, “pay attention to core concerns” (emphasis added), “consider the role of identity”, “make emotions explicit and acknowledge them as legitimate”, “allow the other side to let off steam”, refrain from reacting “to emotional outbursts”, and “use symbolic gestures”.[179] The importance of managing emotions in negotiations, including the significance of addressing the “five core concerns” and the fundamental role of identity, has been further explored in far greater detail by Fisher and Shapiro in separate works,[180] perhaps highlighting an acknowledgement of the shortcomings of Principled Negotiation in responding to the crucial element of emotions and emotional responses in negotiation. One particular shortcoming of Principled Negotiation in this respect is its failure to properly consider potential “tactical uses of emotion”,[181] which are far more likely to be undertaken by negotiators from non-Western cultures than Western cultures, often in an effort to “persuade” counterparts and “remind parties of their status and responsibilities in the social order”.[182]
Examples of tactical or strategic uses of emotion in non-Western culture negotiation theory include the Japanese script of “naniwabushi” which is a strategic three-stage process designed to “persuade the other to be benevolent”.[183] The goal is to make the appeal as emotionally-moving as possible to induce a feeling of higher role status in the other party that forces them to make a concession.[184] Other examples include “behaviors referred to as relational aggressive, including withholding of information”,[185] and the deliberate use of “contempt” “to scorn or disgrace, [and] to offend against dignity”.[186] This can often produce unwillingness to negotiate between parties, which has previously been noted as an area in which Principled Negotiation faces significant limitations.[187] It is also a commonplace tactic for Japanese business negotiators to have a translator present even where they are able to perfectly understand everything their foreign counterpart is saying because it allows them to step back and take time to frame their response, giving them a tactical emotional advantage.[188]
The divide between rationality in Western cultures and emotionality in non-Western cultures is one of the greatest examples of circumstances where cultural values are “actually opposed”.[189] The term ‘values’ can encompass a “range of notions including...ideology, beliefs and worldview”, noting that values “are more deep seated than interests”.[190] Importantly, it has been observed that parties may act irrationally and suffer from “cognitive distortions” when “values are at stake” and value-based conflicts “may resist the sort of rational, problem-solving negotiation practices represented by Fisher and Ury’s model”.[191]
The other significant limitation for Principled Negotiation in light of the framework posed by Brett and Gelfand for examining cultural differences is the inability of the method to address conflict avoidance and harmony values in non-Western cultures.[192] As previously noted, Principled Negotiation faces a significant limitation in respect of parties who are “unwilling or unable” to negotiate,[193] which has been acknowledged by Ury himself.[194] Whereas the direct confrontation approach of Western cultures aligns with the method of Principled Negotiation in uncovering interests, the method is not able to force unwilling parties to negotiate. Negotiators using non-Western tactics such as silence, avoidance, or “diffused voice” will likely be able to create a deadlock with a negotiator practicing Principled Negotiation,[195] which is a considerable limitation of the method.
It is acknowledged that the strategies used by non-Western negotiators to avoid confrontation and conflict, as well as the extent to which they are used, will differ between individual national cultures. For example, silence and withdrawal has been observed as a “typical response” from Japanese negotiators whenever a negotiation reaches an impasse, and it is very common for Japanese negotiators to disguise “their true feelings” or refrain from “bring[ing] up the real objection” to avoid conflict.[196] Similar emphasis on harmony and conflict avoidance can be seen in negotiators from the Middle East and North Africa,[197] and, as previously noted, in Chinese negotiators due to the culture’s “strong family orientation” and the influence of “the Confucian notion of Zhong Yong”.[198] On the other hand, “Singaporeans are pretty up-front people” who will generally have no problem in telling their negotiation counterpart directly “this isn’t going to work”.[199]
Although the purpose of this essay is to identify and understand the limitations faced by Principled Negotiation in respect of cross-cultural negotiations, it is worth noting that the method is likely to be successful in addressing some of the key differences posed by Brett and Gelfand’s “five assumptions” framework. Firstly, Principled Negotiation appears to bridge the divide between Western and non-Western cultures in regard to approaches to motivation and evaluation of outcomes in negotiation by emphasising the importance of relationships. Principled Negotiation advises to be “soft on the people and hard on the problem” and to regard relationships as a “source of power” for achieving joint gain.[200] Such an approach is likely to serve a negotiator particularly well in negotiations with Japanese and Chinese counterparts, where a particularly strong emphasis is placed on developing long-term relationships in business and negotiation.[201]
Principled Negotiation also seems to effectively address cultural differences in causal interpretation of events and attribution by urging negotiators to consider both underlying personal interests and “the differing interests of the various people and factions involved”, acknowledging that interests of constituents and factions will almost always be a factor. [202] This accounts for both the dispositional attribution style of Western cultures and the situational attribution style of non-Western cultures.[203]
Further, Principled Negotiation accounts for the observed cultural differences in communication approaches by Brett and Gelfand. The questioning approach of Western cultures is supported by Principled Negotiation in its focus on interests through asking “why” and “why not” of the other party and reflecting on their answers,[204] whilst the proposal approach of non-Western cultures is addressed by Principled Negotiation in the element of commitment. Fisher, Ury and Patton advise to “think about closure” and what it might entail “from the beginning” and to “consider crafting a framework agreement” in preparation and throughout the negotiation.[205] Most importantly, the method seeks to “move towards commitment gradually”,[206] which aligns with the gradual proposal approach that is characteristic of negotiators from non-Western cultures.[207]
There are undoubtedly many differences across national cultures that can impact negotiations, particularly where parties are ill-advised as to these differences and their potential impact. These differences, and their effects, have been analysed through various frameworks including Hofstede’s cultural dimensions as related to national culture, and importantly in the context of negotiation-specific cultural differences, Brett and Gelfand’s “five assumptions” framework. Differences between negotiators in Western and non-Western cultures are evident in their respective approaches to addressing the five key areas of persuasion, motivation and evaluation of outcome, attributions, communication, and confrontation of conflict.
An examination of the method of Principled Negotiation in light of Brett and Gelfand’s framework of cultural differences demonstrates that, whilst Principled Negotiation addresses some of these key cultural differences, it is perhaps not entirely universal in its application, as Fisher and Ury have claimed. Previous critiques of Principled Negotiation have identified a number of limitations of the method, the most cogent of which pertain to difficulties faced in mixed-context negotiations and where parties are unwilling or unable to negotiate. These limitations, in conjunction with inadequate concern for the significance of emotions in negotiating (particularly when used tactically), leave the method of Principled Negotiation seemingly unable to reconcile differences between negotiators in Western and non-Western cultures in their approaches to persuasion and confrontation of conflict.
Those seeking to utilise the method of Principled Negotiation in cross-cultural contexts should consider integrating further research and theory by Fisher and Shapiro on the role of emotions in negotiation into the method.[208] They should also strive to understand contemporary intercultural negotiation research specific to the culture of their counterpart so that they are attuned to culture-specific approaches to confrontation of conflict and tactical uses of emotion.[209] In spite of its identified limitations, Principled Negotiation remains the most significant and influential negotiation theory posed today, and should be valued for its strengths.
[1] Roger Fisher, William Ury and Bruce Patton, Getting To Yes (Penguin Random House Business Books, 3rd ed, 2012) xxv-xxvii; Pervez Ghauri, ‘The Nature Of Business Negotiation’ in Pervez Ghauri and Jean-Claude Usunier (eds) International Business Negotiations (Elsevier Science Ltd, 2nd ed, 1999) 3, 3.
[2] Max H Bazerman, Ann E Tenbrunsel and Kimberly Wade-Benzoni, ‘Negotiating With Yourself And Losing: Making Decisions With Competing Internal Preferences’ (1998) 23(2) The Academy of Management Review 225, 225-6.
[3] Bruce Barry, Ingrid Smithey Fulmer and Gerben A Van Kleef, ‘I Laughed, I Cried, I Settled: The Role of Emotion in Negotiation’ in The Handbook Of Negotiation And Culture (Stanford University Press, 2004) 71, 79-81.
[4] Ibid 81-2; Edward J Kelly and Natalija Kaminskienė, ‘Importance Of Emotional Intelligence In Negotiation And Mediation’ (2016) 2(1) International Comparative Jurisprudence 55, 55-7, 59-60.
[5] Cathleen Kappes et al, ‘Age Differences in Negotiations: Older adults achieve poorer joint outcomes in integrative negotiations’ (2020) 149(11) Journal of Experimental Psychology: General 2102.
[6] Wen Shan, Joshua Keller and Damien Joseph, ‘Are Men Better Negotiators Everywhere? A Meta‐Analysis Of How Gender Differences In Negotiation Performance Vary Across Cultures’ (2019) 40(6) Journal of Organizational Behavior 651, 652-3, 660-2; Barry, Fulmer and Van Kleef (n 3) 82-3; Laura Kray and Linda Babcock, ‘Gender in Negotiations: A Motivated Social Cognitive Analysis’ in Leigh L Thompson (ed) Negotiation Theory And Research (Psychology Press, 2006) 203.
[7] See, eg, Jeanne M Brett and Michele J Gelfand, ‘A Cultural Analysis Of The Underlying Assumptions Of Negotiation Theory’ in Leigh L Thompson (ed) Negotiation Theory And Research (Psychology Press, 2006) 173.
[8] Daniel Shapiro, Negotiating The Nonnegotiable: How to Resolve Your Most Emotionally Charged Conflicts (Penguin Books, 2017) 14-17.
[9] Ibid 3, 9-10.
[10] Brett and Gelfand (n 7) 173.
[11] Fisher, Ury and Patton (n 1).
[12] Victor Martinez Reyes, ‘The False Promise of Principled Negotiations’ (2015) 9(2) Journal of Global Initiatives: Policy, Pedagogy, Perspective 3, 5.
[13] Shapiro (n 8) 10.
[14] Jeanne M Brett, Brian C Gunia and Brosh M Teucher ‘Culture and Negotiation Strategy: A Framework for Future Research’ (2017) 31(4) Academy of Management Perspectives 288, 288.
[15] Ibid 295-7.
[16] Geert Hofstede, ‘Dimensionalizing Cultures: The Hofstede Model In Context’ (2011) 2(1) Online Readings in Psychology and Culture 3, 8.
[17] Tony Fang, Chinese Business Negotiating Style (Sage Publications, 1999) 138-9, 242-3.
[18] Rajesh Kumar, ‘Culture and Emotions in Intercultural Negotiations: An Overview’ in The Handbook Of Negotiation And Culture (Stanford University Press, 2004) 95.
[19] Shan, Keller and Joseph (n 6) 660-3; Kray and Babcock (n 6) 219; Gordana Dobrijević, ‘The effect of gender on negotiation behaviour’ (2014) 11(1) The European Journal of Applied Economics 43, 51.
[20] Michele J Gelfand and Jeanne M Brett, ‘Integrating Negotiation And Culture Research’ in The Handbook Of Negotiation And Culture (Stanford University Press, 2004) 415, 419-20; John Graham, ‘Vis-à-vis International Business Negotiations’ in Pervez Ghauri and Jean-Claude Usunier (eds) International Business Negotiations (Elsevier Science Ltd, 2nd ed, 1999) 69, 73-5, 89-90; Ray Fells, Effective Negotiation: From Research To Results (Cambridge University Press, 2010) 148-9, 168.
[21] Brett and Gelfand (n 7) 173.
[22] Roger Fisher, Negotiating With the Russians and With Your Spouse. See also Fisher, Ury and Patton (n 1) xxvii.
[23] Reyes (n 12) 5.
[24] Brett, Gunia and Teucher (n 14) 290.
[25] Ross P Buckley, ‘Adversarial Bargaining: An Ignored Aspect of Negotiation Theory’ (2001) 75 The Australian Law Journal Volume 183, 183.
[26] Ibid.
[27] James K Sebenius, ‘What Roger Fisher Got Profoundly Right: Five Enduring Lessons For Negotiators’ (2013) 29(2) Negotiation Journal 159, 159.
[28] William Ury, About William Ury (Web Page, 10 August 2022) <https://www.williamury.com/about/>.
[29] Bobette Wolski, ‘The 'New' Limitations Of Fisher And Ury's Model Of Interest-Based Negotiation: Not Necessarily The Ethical Alternative’ (2012) 19 James Cook University Law Review 127, 127-8.
[30] Ibid.
[31] Fisher, Ury and Patton (n 1) x-xii, xxvi.
[32] Ibid xxvi.
[33] Ibid.
[34] Ibid.
[35] Ibid.
[36] Ibid.
[37] Ibid.
[38] Ibid 3-6.
[39] Ibid 6-7.
[40] Ibid 7.
[41] Ibid.
[42] Ibid 8.
[43] Ibid x-xi.
[44] Edward G Wertheim, Negotiations and resolving conflicts: An overview (2002) Northeastern University, College of Business Administration <https://www.europarc.org/communication-skills/pdf/Negotiation%20Skills.pdf> 5.
[45] Ibid.
[46] Shapiro (n 8) 28.
[47] Jonathan M Hyman, 'Trial Advocacy and Methods of Negotiation: Can Good Trial Advocates Be Wise Negotiators' (1987) 34(3) UCLA Law Review 863, 867.
[48] Fisher, Ury and Patton (n 1) xxvi.
[49] Ibid xiii.
[50] Ibid xxvi.
[51] Ibid.
[52] Ibid.
[53] Ibid xxvii.
[54] Ibid.
[55] Wertheim (n 44) 5.
[56] Ibid.
[57] Fisher, Ury and Patton (n 1) 99-145.
[58] Ibid 183-93.
[59] Ibid 183.
[60] Ibid 183-93.
[61] Ibid 19.
[62] Ibid 20-1.
[63] Ibid 35-9.
[64] Ibid 31-5.
[65] Ibid 21.
[66] Ibid 41.
[67] Roger Fisher and Daniel Shapiro, Beyond Reason: Using Emotions As You Negotiate (Penguin Books, 2006); Shapiro (n 8).
[68] Shapiro (n 8) 8.
[69] Ibid 10.
[70] Ibid 18.
[71] Ibid 27.
[72] Ibid. 29
[73] Ibid 36.
[74] Fisher, Ury and Patton (n 1) 42.
[75] Ibid 43.
[76] Ibid.
[77] Ibid 52.
[78] Ibid 45-9.
[79] Ibid 58.
[80] Ibid 59-61.
[81] Ibid.
[82] Ibid 62.
[83] Wolski (n 29) 140-1; Katja Funken, ‘The Pros And Cons Of Getting To Yes: Shortcomings and Limitations of Principled Bargaining in Negotiation and Mediation’ (2001) 1, 4, 7-8, citing Alan C Tidwell, Conflict Resolved? (Pinter, 1998) and James J White, ‘The Pros and Cons of Getting to YES’ (1984) 34(1) Journal of Legal Education 115.
[84] Fisher, Ury and Patton (n 1) 75-7.
[85] Ibid 75.
[86] Ibid 82.
[87] Ibid.
[88] Ibid 83.
[89] Ibid 84.
[90] Ibid 99.
[91] Ibid 108.
[92] Ibid 105.
[93] Ibid 99-101.
[94] Ibid 175-6.
[95] Ibid 176-8.
[96] Ibid 178.
[97] Ibid 179.
[98] Graham (n 20) 84.
[99] Sebenius (n 27) 167.
[100] Ibid 161-6.
[101] Ibid 166.
[102] Ibid 167.
[103] Andrea Kupfer Schneider, ‘Shattering Negotiation Myths: Empirical Evidence On The Effectiveness Of Negotiation Style’ (2002) 7 Harvard Negotiation Law Review 143, Abstract.
[104] Ibid 167.
[105] Ibid 190.
[106] Ibid.
[107] Ibid 197.
[108] Rodney Harris, ‘Contrasting "Principled Negotiation" With The Adversarial Model’ (1990) 20 Victoria University of Wellington Law Review 91, 95.
[109] Wolski (n 29) 145.
[110] Ibid 146, citing Raymond A Friedman and Debra L Shapiro, ‘Deception and Mutual Gains Bargaining: Are They Mutually Exclusive?’ (1995) 11 Negotiation Journal 243, 246.
[111] Reyes (n 12) 3.
[112] Ibid 7.
[113] Ibid 9.
[114] Wolski (n 29) 138-9.
[115] Ibid.
[116] Ibid 140.
[117] Ibid 140-1.
[118] Ibid 141-3.
[119] Ibid 143-4.
[120] Ibid, citing: William L Ury, Jeanne M Brett and Stephen B Goldberg, Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict (Program on Negotiation at Harvard Law School, 1993).
[121] Wolski (n 29) 139.
[122] Roger Fisher, ‘Negotiating Power’ (1983) 27 American Behavioral Scientist 123, 149; Ury, Brett and Goldberg (n 120) 16-7.
[123] Wolski (n 29) 144, citing Ury, Brett and Goldberg (n 119) 16-7.
[124] Wolski (n 29) 144.
[125] Jeanne M Brett, Brian C Gunia and Michele J Gelfand, ‘The Science of Culture and Negotiation’ (2016) 8 Current Opinion in Psychology 78, 80.
[126] Fair Work Act 2009 (Cth) s 229.
[127] Ibid s 236. See, eg, Association of Professional Engineers, Scientists and Managers, Australia v Peabody Energy Australia Coal Pty Ltd [2015] FWCFB 1451 (3 March 2015).
[128] Mark Rinaldi et al, Fair Work Legislation 2019-20 (Thomson Reuters (Professional) Australia Limited, 12th ed, 2019) 355-6.
[129] Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists, and Managers Australia [2012] FCA 764; (2012) 206 FCR 576 (“Endeavour Coal v APESMA”).
[130] Ibid 585 [30], [33].
[131] Hofstede (n 16) 3.
[132] Brett and Gelfand (n 7) 174-5.
[133] Hofstede (n 16) 3.
[134] Ibid.
[135] Ibid.
[136] Ibid.
[137] Geert Hofstede et al, ‘Comparing Regional Cultures Within A Country: Lessons From Brazil’ (2010) 41(3) Journal of Cross-Cultural Psychology 336, 347-8.
[138] Hofstede (n 16) 8.
[139] Ibid 22.
[140] Ibid 8.
[141] Brett, Gunia and Teucher (n 14) 288.
[142] Ibid.
[143] Jeanne M Brett, Negotiating Globally: How to Negotiate Deals, Resolve Disputes, and Make Decisions Across Cultural Boundaries (Jossey-Bass, 2001) 6-8.
[144] Anne Marie and Rajesh Kumar ‘Culture and Negotiation’ (2011) 16 International Negotiation 349, 349-50.
[145] Ibid 351.
[146] Ibid.
[147] Paulo da Silva, ‘Adversarial Bargaining in Negotiation’ (2020) 25 UNSW Law Journal Student Series 1, 17.
[148] Ibid 16, citing Stella Ting-Toomey, Communicating Across Cultures (Guilford Publications, 1999) 72-3; John Barkai, 'What's a Cross-Cultural Mediator to Do: A Low-Context Solution for a High-Context Problem' (2008) 10(1) Cardozo Journal of Conflict Resolution 43, 77.
[149] Ibid.
[150] Ibid.
[151] da Silva (n 147) 16-7, citing Barkai (n 148) 73.
[152] Brett and Gelfand (n 7) 173.
[153] Ibid 173-4.
[154] Ibid 176-7.
[155] Ibid 180-1.
[156] Ibid 183-4.
[157] Ibid 187.
[158] Ibid 190-1.
[159] Ibid 176-90.
[160] Ibid 176.
[161] Ibid 177-80.
[162] Ibid 180-1.
[163] Ibid 182.
[164] Fang (n 17) 115-27.
[165] Ibid 118-20.
[166] Ibid 118.
[167] Brett and Gelfand (n 7) 184-5.
[168] Ibid 185.
[169] Ibid 186.
[170] Ibid 187-8.
[171] Ibid.
[172] Ibid 188.
[173] Ibid 189-90.
[174] Ibid 191.
[175] Ibid.
[176] Ibid 191-2.
[177] Ibid 193-4.
[178] Fisher, Ury and Patton (n 1) 31-5.
[179] Ibid.
[180] Fisher and Shapiro (n 67); Shapiro (n 7).
[181] Bruce Barry, Ingrid Smithey Fulmer and Nathan Coates, ‘Bargaining With Feeling: Emotionality in and Around Negotiation’ in Leigh L Thompson (ed) Negotiation Theory And Research (Psychology Press, 2006) 99, 108.
[182] Brett and Gelfand (n 7) 178-9.
[183] Ibid 178.
[184] Ibid.
[185] Ibid 179.
[186] Ibid.
[187] Wolski (n 29) 143-4.
[188] Chris Voss and Tahl Raz, Never Split The Difference (Penguin Random House Business Books, 2017) 158-9.
[189] Wolski (n 29) 140.
[190] Ibid.
[191] Ibid.
[192] Brett and Gelfand (n 7) 190-4.
[193] Wolski (n 29) 143-4.
[194] Ibid.
[195] Brett and Gelfand (n 7) 190-4.
[196] Rosalie L Tung, Business Negotiations With The Japanese (DC Heath and Company, 1984) 49, 54-5.
[197] Joerg Schmitz, Danielle Medina Walker and Thomas Walker, Doing Business Internationally: The Guide to Cross-Cultural Success (McGraw-Hill, 2nd ed, 2003) 98-9.
[198] Fang (n 17) 139-41.
[199] Tung (n 196) 54.
[200] Fisher, Ury and Patton (n 1) 20-1, 183.
[201] Tung (n 195) 55-9; Fang (n 17) 115-24.
[202] Fisher, Ury and Patton (n 1) 49-51.
[203] Brett and Gelfand (n 7) 184-6.
[204] Fisher, Ury and Patton (n 1) 45-9.
[205] Ibid 175-6.
[206] Ibid 176.
[207] Brett and Gelfand (n 7) 188-9.
[208] Fisher and Shapiro (n 67); Shapiro (n 7).
[209] See, eg, Brett and Gelfand (n 7).
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