Which of the following makes a negotiation more likely to be at an impasse? 17

Generally speaking, although the labels may vary from one commentator to the next, negotiating styles can be divided into two categories:

1. Competitive/Positional-Based Negotiation

   In the competitive model, the parties try to maximize their returns at the expense of one another, will use a variety of methods to do so and view the interests of the opposing party or parties as not being relevant, except insofar as they advance one's own goal of maximizing returns. Competitive bargaining has been criticized for its focus on specific positions rather than attempting to discern the true interests of the parties. Among the criticisms which have been levelled at the competitive model are its tendency to promote brinkmanship and to discourage the mutual trust which is necessary for joint gain.

2. Cooperative/Interest-Based Negotiation

   Cooperative or problem-solving negotiation starts from the premise that the negotiations need not be seen as a “zero-sum” situation, i.e., the gains of one party in the negotiation are not necessarily at the expense of the other party. Common interests and values are stressed, as is the use of an objective approach, and the goal of the negotiations is a solution that is fair and mutually agreeable.

In recent years, the form of cooperative negotiating style known as principled bargaining has won widespread acceptance. The proponents of principled bargaining believe that bargaining over fixed positions can lead to situations where parties will either be stubborn (“hard bargaining”) or accept unilateral losses (“soft bargaining”) in order to reach agreement. Principled bargaining, which attempts to reconcile the interests underlying these positions, helps the parties to reach agreement and circumvent the problems of hard and soft bargaining. It is this form of negotiation which is seeing increasing use. See Part G “Steps of a Negotiation” for further discussion.

Simply put, a negotiator is supposed to advance the interests of the party that he or she represents in order to obtain an optimal outcome. Beyond this general statement, the functions to be performed by a negotiator will vary, depending on the mandate conferred on her or him by the party.

In the most elementary form of negotiation, two or more parties work to achieve an agreement between themselves. However, the parties can delegate representatives to act on their behalf. These representatives include the following:

1. members or employees who have been designated by the party in question;
2. third parties (e.g., dispute resolution professionals, lawyers, labour negotiators, etc.) whose services have been retained by the parties because of the negotiating skills of these individuals rather than any involvement on the part of the latter in the dispute or discussion in question.

The role of Justice counsel in a negotiation will vary with the circumstances and the mandate of the negotiating team. The extent to which Justice counsel will participate in the negotiations will depend on a variety of factors, including whether or not legal issues or issues of mixed fact and law are at stake as well as whether the client department needs or simply wants Justice counsel to participate actively in the negotiation. For example, counsel with Legal Services Units work with their clients and on their behalf and help represent their views in a variety of situations, e.g., formulating contractual terms concerning the development of a project. In some cases, Justice counsel will have carriage of files such as ongoing litigation and may be directly involved in negotiations, e.g., settlement conferences in litigation files.

When negotiating on behalf of the client, counsel must ensure that there is no divergence between his or her negotiating stance and the mandate of the client. This is best done through following the client's instructions and providing frequent updates to the client. At other times, client departments may ask the Justice counsel to participate as a member of the negotiating team. Should the client be present at the negotiations, counsel must determine in advance whether the client will actually participate in the negotiations. It is crucial for the success of the negotiations that no divergences, real or apparent, emerge between the positions advanced by Justice counsel and those proposed by the client. To avoid any such disclosures, counsel and the client should clarify their respective mandates and formulate a common negotiating strategy.

The choice of negotiating style will also be an important consideration, as a competitive negotiator will view the bargaining exclusively in terms of advancing his or her interests and will conduct the negotiations accordingly. The cooperative negotiator, however, will view the issues in a fundamentally different light and will attempt to seek common ground with his or her counterpart.

While the role of counsel will depend on the circumstances surrounding the negotiations, she or he is always bound by the principles of professional ethics. For example, the Code of Professional Conduct of the Canadian Bar Association states that when acting as an advocate, the lawyer must treat the tribunal with courtesy and respect and must represent the client resolutely, honourably and within the limits of the law. Although no two negotiations are identical, counsel must apply these principles of professional responsibility in each situation. Counsel for the Department of Justice are bound as well by the provisions of the Department of Justice Act, and relevant directives and policies which outline the appropriate role for Justice counsel. Of note is the Treasury Board Contracting Policy, which specifies negotiations as one means of resolving contractual disputes. Section 12.8.3 reads:

Efforts should be made to resolve disputes as they arise, first by negotiating with the contractor. This can be through discussion between representatives of the contractor and the contracting authority or by a more formal review established by the department or agency. Contracting authorities should develop systems that ensure:

1. prompt attention is given to disputes;
2. unresolved disputes are brought forward quickly to a designated senior level in the department or agency for decision;
3. the decision is quickly communicated to the contractor so that the contractor may take further action if so desired.

Counsel should also be aware of all other legislative and government policy requirements including, for example, the Access to Information Act, the Privacy Act and the Official Languages Act.

Underlying any successful relationship is the principle of mutual respect. This is particularly true during negotiations, where cultural and/or linguistic differences between the parties may occasionally result in misunderstandings between them. Such differences will influence the perceptions and assumptions of individuals and how they bargain. Differences in gender may also play a role in the negotiating process, whether the parties are of the same or different cultural backgrounds. Reliance on stereotypes, whether they be based on gender, cultural, physical or racial differences or physical disability, will cause and reinforce misunderstandings between the parties.

The ability to deal with others who are not of the same gender or cultural origin or who differ in some way from one's self varies with each individual and the degree to which she or he has been exposed to and is willing to accept diversity. Whatever one's background, clearly demonstrating respect for and an open-minded attitude towards others is always an appropriate course of action. When there are cultural or other differences among parties to a negotiation, it is important to be aware of and sensitive to these differences. In such a situation, it is essential to communicate clearly and effectively with the other party or parties in a negotiation. Doing so will enhance the relationship between the parties as well as minimize the chances of a misinterpretation of the underlying message.

At any point during negotiations, one party may decide to use a variety of tactics in order to obtain an advantage over another party. This behaviour can range from pressure tactics (attempting to force a party to accept specific terms), intimidation (implicit or explicit), deliberate ambiguity regarding the scope of the negotiating mandate to blatantly unethical behaviour (providing misleading or false information, lies, etc.).

Advance preparation is essential in order to respond effectively to these tactics, whenever they may arise. In devising strategies to counter such behaviour, each situation must be viewed as unique. Previous experience of others can provide useful guidelines in formulating a suitable response. Awareness of basic communication techniques and strategies on how to communicate with difficult or deceptive individuals may also be extremely helpful. Ultimately, the choice of tactic(s) to be used to rebut difficult or unethical conduct is a question of personal judgment, as what may be an appropriate response in one situation may be excessive or too conciliatory in other circumstances.

Preparing for a Negotiation

1. Initial Assessment

   The negotiation process begins with a communication or signal from one party to the other indicating a willingness to bargain. Since negotiation is a voluntary process, the first and fundamental step to be taken is to confirm whether or not the other party or parties are interested in negotiations. In making such an assessment, it is important to take into account the following factors:

   • the desire to resolve the dispute;
   • whether a negotiated solution is in the interests of any or all of the parties in question;
   • the credibility of the other party(ies);
   • the willingness of the parties to establish or preserve a relationship;
   • whether or not there is a disparity between the parties to the extent that it would be impossible to bargain equally, i.e., there is a marked contrast between the parties in terms of the level of education or the resources of the parties;
   • the desirability of using another form of alternative dispute resolution, such as mediation or arbitration; and
   • proper authority to enter into negotiations and to reach an agreement or settlement.
2. Contacting the Other Party

   Once it has been decided that negotiations are an appropriate course of action, arrangements that must be made with the other parties include:

   • outlining the agenda and the scope of the negotiations;
   • fixing the timetable, i.e., whether or not there will be a fixed period for the talks as well as the frequency and the duration of the negotiations;
   • determining the identity of the participants, ensuring that all interested parties have been consulted;
   • choosing the locale for the negotiations (preferably a neutral location) and arranging necessary support services;
   • specifying the official language(s) to be used for the purposes of the negotiations, as well as the need for translation and interpretation services (please refer to the discussion of the Official Languages Act).
   • deciding whether or not the negotiations and any resulting agreement will be confidential (please see the discussion of the Access to Information and Privacy Acts).

   Consistency in these matters will not only assist in ensuring the negotiations are as effective as possible, they will also reinforce one's credibility and can thus contribute to establishing mutual confidence and trust.

3. Preparation of a Strategy and Interest Assessment

   A crucial factor in achieving one's goals in negotiation is thorough preparation. Therefore, it is suggested that the following steps should be taken prior to any bargaining session:

   • Study the dispute in question before the negotiations. This means not only obtaining the facts surrounding the dispute, but also attempting to find out as much as possible about the other party or parties, their background and their negotiating interests.
   • Harmonize and reconcile the varying and sometimes competing interests within one's negotiating side before negotiating with the other side. Failure to do so can undermine one's negotiating stance by making the other party aware of internal disagreements and thus raising doubts as to one's ability to implement any future agreement.
   • When assessing one's interests as well as those of other parties, the Best Alternative To a Negotiated Agreement (BATNA) must be taken into account. The BATNA is “the standard against which any proposed agreement should be measured”. It is, in essence, the best of all the possible alternatives to negotiation should the latter fail. Assessing one's BATNA is indispensable and should be done carefully and well in advance of any bargaining session so as to avoid unpleasant surprises from the opposing party during the negotiations. Attempting to estimate the BATNA of the other party will also be worthwhile when planning one's negotiation strategy.
   • Creativity is necessary when attempting to devise solutions when at first glance the dispute appears to be insoluble. An impasse will often result when the negotiating parties advance specific positions and refuse to change them. Each party should then canvass the various members of the negotiating team in order to obtain their views regarding possible solutions, i.e., determining the parties' underlying interests and how they may be satisfied. This should be done in an environment which encourages the team members to express their ideas freely and without fear of criticism, e.g., a brainstorming session.
   • Thought must be given as to how the negotiations will be handled. For example, it must be decided in advance whether there will be one spokesperson or whether each member of the negotiating team will be responsible for one or more particular areas or topics. Another consideration is fixing in advance when and how to call a private team caucus that will interrupt the negotiations. Resorting to a caucus of team members is helpful when a new issue emerges at the table or an issue on the table requires clarification or further analysis. Finally, all members of the negotiating team should be aware of the need to resolve any internal disputes away from the negotiating table and to avoid revealing any such disputes or doubts to the other parties, e.g., through the use of inappropriate body language.

Each negotiation has its own unique characteristics. There is thus no uniform and exclusive manner governing the organization of a bargaining session. For example, the timing of an offer and the question of which party is to make the first offer fall within the discretion of the negotiator and are determined by the overall dynamic of a particular negotiation.

1. Negotiation Session

   During any negotiation, the following considerations should be kept in mind:

   • Concentrate on interests, not positions. Try to focus on the underlying interests of all the parties, i.e., their needs, desires, concerns and fears, and how they might be acknowledged and reconciled.
   • Separate the people from the problem. Avoid blaming the other side for the problem(s) one has encountered and discuss the perceptions held by each side. Ensure that there is effective communication between all parties.
   • Listen carefully and actively to what the other side is saying and acknowledge what is being said. This can be done through methods such as asking questions and by making frequent summaries.
   • Try to make the negotiations a “win-win” outcome by creating options for mutual benefit.
     1. There is no need to wait until negotiations have begun, however, in order to develop these options. They can and should form part of the development of the negotiating strategy, although they are subject to modification in the course of the negotiation.
     2. Creating these options implies a willingness to look beyond the limits of the issue(s) in question. Doing this can be achieved through means such as brainstorming sessions with one's negotiating team. Brainstorming can also be a joint exercise involving all the parties. These sessions should be structured so as to allow all participants the opportunity to voice ideas in a non-adversarial and non-critical environment.
   • Use objective standards. Citing objective standards such as legislation or government policies enables parties to view the issues in rational rather than emotional terms and facilitates the conclusion of an agreement. There is likely a variety of alternative objective criteria that could be cited by the parties and, if possible, they should be identified by each negotiating team prior to entering into the negotiating session.
   • Evaluate proposals of the other party and the progress of the negotiations in light of the BATNA (Best Alternative To a Negotiated Agreement). It may become necessary to break off the negotiations if there appears to be no way of achieving an outcome which is superior to the BATNA. This can occur when it becomes apparent that the underlying interests between the parties are irreconcilable or that the other side does not really want an agreement.
   • When necessary, feel free to stop the negotiations if there is a need for the members of the negotiating team to confer on a new development. To avoid revealing the content of these discussions, the caucus should be held in a private location which is preferably not visible to the other side.
   • Stay within the limits of one's negotiating mandate. Ensure that there is constant communication with the client when acting on the latter's behalf. The same principle applies when bargaining in the governmental context; before committing the government to a position Justice counsel must be clear as to the extent of her or his bargaining authority. More specifically, counsel must be certain that they have received specific instructions as to whether or not to conclude an agreement as well as the limits of the mandate, e.g., the limits governing any offer to the other party as well as the degree to which other options can be offered. As well, any agreement that is reached must respect existing laws and government policies.
   • Prepare for the possibility of being confronted with provocative, intimidating, unfair or deceptive behaviour of a party to the negotiations. At worst, it may become necessary to end the negotiations, having carefully examined one's BATNA and having concluded that termination is the preferable course of action.
2. Statutory/Policy Considerations

   A negotiator's authority is limited not only by the mandate given by his or her principal or client, but also by factors that may not be explicitly mentioned in her or his mandate, such as existing statutes, regulations or government policies.

   Justice counsel have a particular duty to ensure that any agreement reached does not breach the terms of any law or policy directive. For example, the Minister of Justice has responsibility for a number of federal statutes, including the Access to Information Act, the Canadian Human Rights Act, the Canadian Bill of Rights, the Commercial Arbitration Act, the Crown Liability and Proceedings Act, the Federal Real Property and Federal Immovables Act, the Official Languages Act, the Privacy Act, and the United Nations Foreign Arbitral Awards Convention. These statutes are cited here only as examples and are not intended to provide a definitive list of federal statutes to be consulted by Justice counsel. Counsel should examine the relevant federal, provincial or territorial laws which may be applicable to the particular fact situation or client department.

   Any agreement reached between the parties cannot override the terms of the Access to Information Act, the Privacy Act or the Official Languages Act as these laws are of general application. Please refer to sections ins “Confidentiality: Access to Information Act and Privacy Act” and “Official Languages Act: Considerations” contained in this Reference Guide for further discussion.