24 Nov 2005

Escalation reduction in negotiation

By Michael Klug

Not only is escalation largely your choice but there is a plethora of creative options to assist negotiators to avoid the usually fatal pitfall of negotiations getting out of control.

Of the many rules that have emerged in the specialised field of negotiation, there are very few, if any, that are more important than the rules that flag the obstacles to concluding a negotiation satisfactorily.

It has often been said the only two things that will stop a negotiation reaching fruition are the impasse and uncontrolled escalation. There are of course an infinite number of reasons that give rise to these two phenomena but nonetheless if one is to look at any failed negotiation it is highly probable that an impasse or uncontrolled escalation will manifest themselves somewhere. At first blush they appear to be opposites but in truth they are really non-identical twins. We are all too familiar with the pattern in family conflict where a needling comment gives rise to a more robust counter-comment and within minutes, if not seconds, a shouting match ensues with accusation and counter-accusation being made, usually resulting in a walkout and then a frigid period of silence and non-communication (the impasse).

This process is not evident just in families but also in corporations, partnerships, government departments and between sovereign states.

A rule which neatly encapsulates this process and is partially borrowed from the laws of physics is as follows:

"For each and every action there is an equal and opposite reaction plus 20% (to teach you not to do it again)"

The 20% is of course variable dependant upon the severity of the initial act and is intended to be symbolic of the natural desire to strike back when one feels aggrieved, affronted, insulted or harmed.

When this process of escalation becomes uncontrolled it can lead to wars, feuds, breakdowns of collaborative working environments, divorces and partnership dissolutions.

A simplistic but powerful rule has often been put forward by stating that "escalation is largely your choice". Virtually all well recognised authors in the negotiation and collaborative have dealt with techniques for dealing with escalation and some have developed powerful models for doing so.

Fisher & Brown in their landmark book, "Getting together: Building a relationship that gets to Yes" at page 38 developed a prescriptive approach of being unconditionally constructive by stating six benchmark behavioural rules:

  • Rationality: Even if they are acting emotionally, balance emotions with reason;
  • Understanding: Even if they misunderstand us, try to understand them;
  • Communication: Even if they are not listening, consult them before deciding on matters that affect them;
  • Reliability: Even if they are trying to deceive us, neither trust them nor deceive them but be reliable;
  • Non-coercive modes of influence: Even if they are trying to coerce us, neither yield to that coercion nor try to coerce them, but 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.

(Do only those things that are both good for the relationship and good for us – whether or not they reciprocate).

At first pass, these rules seem to suggest turning the other cheek or perhaps even giving in. In truth, on close examination the wisdom of this prescriptive approach reveals a golden thread running through the model, namely not to succumb to the all too human response of escalation when severely provoked by unfair or even dishonest behaviour by one's negotiation opponent.

Lewicki, Hiam and Olander in their book "Think before you speak" at pages 156 to 176 have developed conflict reduction strategies by developing five different strategies for reducing conflict and enabling parties to move from a competitive to a collaborative process.

These are:

  • reduce tension and hostility;
  • improve the level and degree of communication;
  • reduce the number and size of the issues involved;
  • enhance or improve the options and alternatives;
  • find some common ground as the basis for agreement usually, by calling on the relationship.

Apart from developing better negotiation and communication skills ourselves, one of the most time honoured ways of achieving and overcoming the challenges and objectives raised in each of these models is to seek the intervention of an independent neutral third party. That is often done by resorting to litigation and arbitration, two highly effective and powerful processes where an independent adjudicator not only decides our disputes for us but also has the power to bind the parties.

The benefits of finality, fairness and enforceability are often outweighed by cost, an inability to manage our own outcomes and the almost certain destruction of the relationship between the parties.

Self-managed outcomes can be achieved in the third party context by selecting the processes of facilitation, conciliation or mediation (or their various hybrids), in the broadest sense being processes that may be usefully characterised as "assisted negotiation'.

Bernard Mayer, the world renowned mediator and teacher, in his new book "The Dynamics of Conflict Resolution" at page 224 identifies the intervention of the independent third party as a crucial tool in preventing escalation.

He identifies the following as useful and often crucial in preventing escalation:

  1. procedural assistance;
  2. assessment;
  3. convening of process;
  4. facilitating a process;
  5. training the parties;
  6. coaching the parties;
  7. substantive assistance:
    (a) technical input and fact finding;
    (b) data gathering;
  8. professional consultation;
  9. reconciliation;
  10. decision-making assistance;
  11. advisory mediation.

Some authors ascribe to the mediation process greater advantages than mere "assisted negotiation". The well regarded Bush-Folger (1994) Transformative Model talks about the fundamental principles and healing of a relationship that mediation can give rise to.

Sarah Cobb (Fordham Urban Law Journal (28 Fordham LJ.2001, 1017)) speaks of mediation or facilitation creating a sacred space for the parties.

For those of us who prefer to always try to resolve disputes in a collaborative, interest-based way first, uncontrolled escalation is one of the most significant impediments in achieving that outcome.

For all of us being in the midst of a deep and unrelenting conflict, we often see no way out, no solution and no hope (and indeed no desire) of restoring what was once a productive and satisfying commercial and personal relationship.

This overview of some of the available techniques is to demonstrate that not only is escalation largely your choice but there is a plethora of creative options to assist negotiators to avoid the usually fatal pitfall of negotiations getting out of control.

Commonsense suggests that when calm and reason prevail a more rational, well-managed and wise outcome is more likely. A process of concession and counter-concession of a well ordered and thoughtful kind is vastly preferable to outbursts, intemperate behaviour and the use of force, threat or bluff.

However, logic rarely prevails when emotions are running high. The techniques and options for de-escalation set out in this article have few if any downsides.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.