Katja Funken
Master-Thesis “LL.M. (Dispute Management Law)” an der University of Queensland, Brisbane (Australien)
THE PROS AND CONS OF GETTING TO YES
Shortcomings and Limitations of Principled Bargaining in Negotiation and Mediation
"But in the way of bargain, mark you me, I'll cavil on the ninth part of a hair."
Shakespeare, Henry IV, Act III, Scene I, Hotspur to Glendower.
I. Introduction
With over two million copies sold worldwide, Getting to YES has become one of the most
influential works on the subject of negotiation. In the book, the authors Fisher, Ury and
Patton propose an alternative method of bargaining which they call principled negotiation.
Although Getting to YES does not explicitly mention the concept of mediation, it is said to
form the foundation of the modern mediation movement as well.1 The importance of a
book, however, can also be measured in part by the number and quality of its critics - and
Getting to YES has been questioned by heavyweights.2
This paper examines the alleged shortcomings and limitations of principled bargaining in
negotiation and mediation and analyses whether the criticism raised about Getting to YES
can withstand closer scrutiny. After a brief introduction to the book, this paper will be
divided into seven parts which will deal with the major points of criticism. The main focus
will be on the following issues: (1) the danger of generalisation, (2) the distinction between
1
See Alexander N, Wirtschaftsmediation in Theorie und Praxis, Peter Lang, Frankfurt, 1999 at 68.
Anstey M, Negotiating Conflict: Insights and Skills for Negotiators and Peacemakers, Juta & Co,
Kenwyn/South Africa, 1991 at 210; Boulle L, Mediation: Principles, Process, Practice, Butterworths,
Sydney, 1996 at 52; Condliffe P, Conflict Management: A Practical Guide, Tafe, Collingwood/Vic, 1991 at
82; Condlin RJ, 'Bargaining in the Dark: The Normative Incoherence of Lawyer Dispute Bargaining Role'
(1992) 51 Modern Law Review 1 at 26-34; McCarthy W, The Role of Power and Principle in Getting to YES,
in: Negotiation Theory and Practice, Breslin J & Rubin J (eds.), 1993, at 117-22; Provis C, ‘Interests vs.
Postions: A Critique of the Distinction’, (1996) Negotiation Journal 305; Tidwell A, Conflict Resolved?,
Pinter, London, 1998 at 25-6; White JJ, 'The Pros and Cons of Getting to Yes' (1984) 34 Journal of Legal
Education 115; Wolski B, 'The Role and the Limitations of Fisher and Ury's Model of Interest-based
Negotiation in Mediation', (1994) 5 Australian Dispute Resolution Journal 210.
2
1
interests and positions, (3) distributional bargaining and zero-sum games, (4) the hard
bargainer, (5) power imbalances, (6) objective criteria and (7) perception and cognitive
biases.
I.
The Book
In Getting to YES, Fisher, Ury and Patton develop an alternative method of negotiation
which they call principled negotiation. The principled negotiation approach is contrasted to
the traditional negotiation method which is called positional bargaining.3 In positional
bargaining, each side takes a position, argues for it and makes concessions to reach a
compromise.
Principled negotiation, on the other hand, focuses on the needs or interests of the parties the reasons why they have adopted a particular position rather than the position itself.4 The
rationale for focusing on interests is that for every interest there usually exist several
possible positions or solutions that could satisfy it.5 It may be possible to find an
alternative solution which meets the interests of all parties.6
Principled negotiation is based on the four principles "Separate the People from the
Problem", "Focus on Interests, Not Positions", "Invent Options for Mutual Gain" and "Use
Objective Criteria". The first principle, "Separate the People from the Problem", suggests
that the substantive issues should be disentangled from relationship problems and dealt
with separately.7 The second point, "Focus on Interests, Not Positions", is designed to
overcome the drawback of focusing on people's stated positions when the object of a
negotiation is to satisfy their underlying interests.8 "Invent Options for Mutual Gain"
proposes to think up a wide range of possible solutions that advance shared interests and
creatively reconcile differing interests.9 The fourth principle, "Insist on Using Objective
Criteria" suggests that negotiators should base their agreement on some fair objective
standard such as market value, expert opinion or law.10
3
See Anstey M, supra note 2 at 125-64; Boulle L, supra note 2 at 47; Menkel-Meadow C, 'Towards Another
View of Legal Negotiations: The Structure of Problem Solving' (1984) 31 UCLA Law Review 754.
4
Fisher R, Ury W, Patton B, Getting to YES, 2nd edition, Random House, Sydney, 1999 at 11.
5
Fisher R, Ury W, Patton B, Getting to YES, supra note 4 at 43.
6
Id at 43.
7
Id at 11.
8
Id at 11.
9
Id at 12.
10
Id at 12.
2
The advantages of principled negotiation over positional bargaining have been extensively
discussed by writers from various fields. They can be summarised as follows.
-
Principled negotiation provides more satisfying results for the parties, as it deals with
their underlying needs and interests and thereby establishes agreements which are more
likely to be adhered to.
-
It is efficient, in that parties look more creatively at a range of options for dealing with
their problem, and reduces the likelihood of stalemate or leaving anything of value at
the negotiation table.
-
It provides a basis for a better relationship between the parties by dealing with
emotional and interpersonal dimensions of conflict and taking account of future
relations between the parties.
-
It provides legitimate standards (objective criteria) for evaluating and accepting
settlement options, without the parties appearing to be unduly compromising.11
However, scholars and practitioners have also frequently pointed out the shortcomings and
limitations of the principled negotiation approach. The next part of this paper examines
some of the most persistent points of criticism raised about Getting to YES.
II.
The Critics
The principled negotiation theory proposed by Fisher, Ury and Patton has been questioned
by a number of authors for various reasons. They mainly criticise Fisher, Ury and Patton
for trivialising conflict, routinising methods of negotiation, and undervaluing the role that
situation and context play in handling conflict. Fisher himself commented on that criticism
in several publications.12
He has attempted to clarify that this approach cannot provide "perfect" solutions for all
possible bargaining situations. However, though he recognises that there are important
differences depending primarily on the subject under negotiation, Fisher defends and
advocates "the power that comes from general theory."13 He has compared himself and his
co-authors with physicists advancing hypotheses about a general theory of elements who
11
See Boulle L, supra note 2 at 52; Condliffe P, supra note 2 at 84.
Fisher R, Beyond Yes, in: Negotiation Theory and Practice, Breslin J & Rubin J (eds.), 1993,
Fisher R, 'Comment' (1984) 34 Journal of Legal Education 120; Fisher R, "Negotiation Power", (1983) 27
American Behavioural Scientist 1; Fisher R, The Process of Dispute Resolution: The Role of Lawyers,
Foundation Press, New York, 1989 at 99-100; Fisher R, Ury W & Patton B, Getting to YES, supra note 4 at
101-198; Fisher R, Ury W, Patton B, Negotiation Power: Ingredients in an Ability to Influence the Other
Side, in: Negotiation: Strategies for Mutual Gain, Hall (ed.), London, 1993.
12
3
do not deny differences of elements.14 He states that like such physicists, they have been
looking for common concepts and a common structure that apply across the board.15
That general theory, or more specifically the implied generalisation about the negotiation
process, however, is McCarthy's16 and Tidwell's17 major concern about Getting to YES.
1. The Danger of Generalisation?
Of these critics, Tidwell especially, claims that it would be more productive to have the
parties think critically about their specific situation and design steps more appropriate to
their needs than to ask them to stick to those four principles.18
To illustrate his point, he states that, for instance, the first principle becomes impractical if
it is impossible to separate the people from the problem, because the people are the
problem. However, though it is true that "people problems" often are the main issues in a
dispute, this does not necessarily mean that the first principle of Getting to YES does not
work.
To the contrary, its practicability is first illustrated when it comes to identifying people
problems as such: the fact that the relationship between the parties is the true issue might
only become clear after relationship issues have been disentangled from substantive issues.
Furthermore, Tidwell criticises the book for overlooking the fact that in some cases
designing options for mutual payoffs may not be practical if reality prevents the
implementation of creative solutions and that objective criteria may not be available,
especially when one is dealing with highly subjective matters such as feelings.19
In his criticism, Tidwell misjudges the aim and character of Getting to YES. The book is a
handbook dispensing advice on how to expand one's skills and techniques required to
effectively negotiate. One should not construe it as providing a warranty containing
workable solutions for every single aspect of negotiation. Similarly, it provides nothing but
guidelines for mediators that they should not rely too heavily upon. Both mediators and
13
Fisher R, Beyond Yes, supra note 12 at 125.
Id at 125.
15
Id.
16
McCarthy W, supra note 2 at 120, Tidwell A, supra note 2 at 26.
17
Tidwell A, supra note 2 at 26.
18
Id at 26.
19
Tidwell A, supra note 2 at 26.
14
4
negotiators should expand their repertoire of strategies beyond those defined in Getting to
YES in order to manage situations that do not fit in the Fisher, Ury and Patton model.20
However, even though there may be situations where each of the four core principles may
not work, this, for the reasons stated above, does not mean that the principles of Getting to
YES are impractical.
Still, as to the limitations of principled negotiation, there have been other persistent
questions raised about Getting to YES that deserve separate and more detailed
consideration.
2. The Distinction Between Interests and Positions
The first of those questions regards the utility of Fisher, Ury and Pattons' distinction
between interests and positions. Provis has criticised this distinction on various levels.21
One aspect of his criticism emphasises the authors' failure to distinguish between objective
and subjective interests. These terms are characterised as follows: "objective" refers to
what actually promotes an individual's well being, whether or not it is known or preferred
by the individual; "subjective" refers to what the individual prefers, whether or not it
actually promotes the individual's welfare.22 According to Provis, the difficulty with
conflating those concepts is that sometimes people want things that are not good for
them.23 Similarly, Provis complains that Getting to YES does not differentiate instrumental
from ultimate interests. "Instrumental interests" are instrumental in attaining objects of
other more fundamental desires. "Ultimate" or "intrinsic interests" are items of desire for
their own sake.24
Moreover, Provis warns that the focus on the concept of "interests" flattens out the
complexity of human interests, values and beliefs. He points out that often negotiations
hinge on people's values and perceptions, rather than on their interests. The sole focus on
interests, Provis adds, also neglects some important functions of positions in negotiation
dynamics, particularly in communication and intergroup bargaining. One aspect of the
utility in positions is that they give the overt appearance of give and take, which can be of
20
See Alexander N, supra note 1 at 78; Boulle L, supra note 2 at 52; Brown HJ, Marriott AL, ADR Principles
and Practice, Sweet & Maxwell, London, 1993 at 91; Rogers B, McCafferty BP, Dispute Resolution for the
Queensland Legal Profession, Queensland Law Society, 1997 at 35; Wolsky B, supra note 2 at 214.
21
See Provis C, supra note 2.
22
Provis C, supra note 2 at 307.
23
Id.
24
Id at 309.
5
psychological value to the negotiators.25 Provis also argues that positions are also
important for maintaining the internal unity and cohesiveness of a bargaining unit, as they
are the result of a framing process within the respective organisation.26 Accordingly, Provis
maintains that sometimes the parties' sole focus on interests, to the exclusion of positions,
can be counterproductive.
In an earlier paper, Fisher admitted that Getting to YES blurs the distinction between
descriptive analysis and prescriptive advice.27 It creates categories for analytic purposes
and then combines them with prescriptive rules of thumb.28 This carries the inherent
danger of appearing simplistic. Provis' objection that the category of "interests" is too
broad touches upon that point. His observation that Getting to YES does not distinguish
between subjective and objective and instrumental and ultimate interests is more of
academic interest than of practical use. This is because it makes no difference for the
practical utility of the second principle, “focus on interests, not positions”, whether those
interest could be further classified or not.
However, it is useful to point out that negotiators, as well as mediators, should not focus
exclusively on interests. Sometimes conflict is related to cognitive differences or to
differences in values or beliefs, rather than interests.29 Furthermore, the sole emphasis on
interests neglects the important functions of positions with respect to negotiation dynamics.
Often the parties need to see the other side moving and positions allow the negotiator to
see how much the other party has shifted from its initial negotiation claim. Provis'
reflection that parties which are groups may rely for their unity and existence on positional
consensus is correct as well.
Fisher, Ury and Patton, however, have never explicitly suggested that that negotiators
should focus solely on interests, to the exclusion of positions. Nevertheless, inexperienced
negotiators and novice mediators may be mislead to do so.
To the extent that it helps to prevent this potential misinterpretation of the second principle
of Getting to YES, the criticism by Provis is of great practical, not just academic value in
both the negotiation and mediation context.
25
Id at 311.
Id at 313.
27
Fisher R, 'Comment', supra note 12 at 123.
28
Id.
29
Religious conflicts provide an example. See also Mayer B, The Dynamics of Conflict Resolution: A
Practioner’s Guide, Jossey Bass, San Francisco, 2000 at 26.
26
6
3. Distributional Bargaining and Zero-Sum Games
Another question raised about Getting to YES has been whether the principled negotiation
approach will work if the parties' underlying interests are incompatible.30
In reality, most negotiations contain two aspects.31 In one aspect, modifications of the
parties' positions can produce benefits for one without significant cost to the other.32 This
element has been characterised as "exploring for mutual profitable adjustments", "the
efficiency aspect of bargaining" or "problem solving".33
The other is "distributional bargaining" or "share bargaining", where each gain for one
party means a corresponding loss for the other.34 Game-theorists call this situation a zerosum game.35 In those situations, it is impossible to create new options and to "expand the
pie before dividing it."36
From this, White concludes that principled negotiation is not applicable in zero-sum game
situations. As a consequence, he states that Getting to YES only provides workable
solutions as long as the parties' interests are compatible, but not when they are directly
opposed. As the book does not make such a distinction, he criticises it for overlooking the
hard bargaining and the distributional negotiation. 37
Fisher himself has commented on White's view. He states that even in distributional
bargaining situations, principled negotiation is still applicable and preferable to positional
bargaining.38 The main reason he gives is that the parties, although their interests as to the
substantive issues may be opposed, still have the shared interest in finding quickly and
amicably, a solution acceptable to each, provided one is possible. According to him,
30
See Westbrook JE, 'How to Negotiate with a Jerk without Being One' (1992) 2 Journal of Dispute
Resolution 443 at 444.
31
See Karass CL, Give and Take: The Complete Guide to Negotiating Strategies and Tactics, Thomas Y.
Cromwell Company, New York, 1974 at 127, 145; Singer LR, Settling Disputes: Conflict Resolution in
Business, Families, and the Legal System, Westview Press, Boulder, 1990 at 18; White, JJ, supra note 2 at
116.
32
Condliffe P, supra note 2 at 82; White JJ, supra note 2 at 116.
33
Id at 116.
34
Id at 116; Thompson L, 'The Mind and Heart of the Negotiator', Prentice Hall, Upper Saddle River/New
Jersey, 1998 at 47.
35
See Eidenmuller H, Verhandlungsmanagement durch Mediation, in: Mediation für Juristen, Breidenbach S
& Henssler M (eds.), Cologne, 1997 at 42; Wertheim E, Love A, Peck C, Littlefield L, Skills For Resolving
Conflict: Creating Effective Solutions Through Cooperative Problem Solving, Eruditions Publishing,
Emerald/Victoria, 1998 at 11.
36
Fisher R, Ury W, Patton B, Getting to YES, supra note 4 at 58.
37
White JJ, supra note 2 at 116-120.
38
Fisher R, Comment, supra note 12 at 121.
7
principled negotiation is the better process to find such a quick and friendly solution, rather
than a contest of will in which the most stubborn will tend to fare better.39
Fisher's assumption that both parties generally have the shared interest in solving the
dispute as quickly and amicably as possible is quite convincing. As the problem of finding
the right process to resolve their substantive differences is a joint problem, even apparent
"distributional bargains" are amenable to joint problem solving. Rather than insisting on
their positions, parties can treat the distributional issues as a joint problem they have to
solve together. Accordingly, the applicability of principled negotiation is not limited to
those aspects of bargaining where the parties' interests are compatible.40
However, the question remains whether principled negotiation is also, as contented by
Fisher, the better approach in those situations, as contrasted to positional bargaining. To
answer that question, one should balance all advantages and disadvantages of those two
approaches.
Although positional bargaining has the advantage that it takes less efforts than inventing
creative options and finding objective criteria, it carries two inherent dangers. Firstly, if
both parties are very stubborn, positional bargaining may result in a deadlock situation of a
contest of will, which costs the parties a lot of valuable time and energy. Secondly, in
extreme cases parties may become so pig-headed and fixed on their position that their fight
over "who gets the last dollar" might endanger the agreement reached earlier on the other
issues.
Those risks can be minimised when the parties jointly look for a solution acceptable to
each. If the parties can agree on standards to govern their settlement, agreement on the
substance will be easier. This may save them a lot of time, energy and emotional stress, as
contrasted to a contest over who is the most stubborn. Accordingly, although principled
negotiation cannot ease the tension between the parties' opposing substantive or material
interests, it clearly better serves their shared procedural interest in finding a solution as
smoothly as possible.
Even if there are no "rational objective criteria" available, as a last resort, the parties can
agree on neutral criteria independent of the their will, such as random chance, by tossing a
coin or drawing straws. Though White would probably call this procedure "no more than
39
Id at 121.
8
(…) the superficial appearance of reasonableness"41, it can save the parties a lot of time
and enable them to maintain a good relationship. In addition, one may also wish to
consider Rohl’s observation that “[…]in the real world, unlike as in the game-theorists'
games, there are additional things to distribute in a zero-sum game situation: positive
feelings and the recognition as a moral person.”42 Principled negotiation is the better way
to achieve this.
However, this paper only suggests that principled negotiation is generally applicable and
preferable in zero-sum games. Yet, there may well be situations where this is not the case.
Fisher himself remarks that positional bargaining might be the more appropriate approach
in single-issue negotiations between strangers without any future relationship, where the
transaction costs of considering options are high and where each side is protected by
competitive opportunities.43 Similarly, with regard to the mediation context, Alexander and
Boulle clarify that one of the functions of a mediator is to assist the parties to develop an
appropriate approach for their particular circumstances.44 Mediators often have the parties
resolve the remaining issues by way of positional bargaining, after they have solved the
other issues by way of principled negotiation.45 Thus, a mediator has to be familiar with
positional bargaining techniques, such as assisting the parties to make trade-offs,
concession and compromises.46
40
The interrelated problem whether principled negotiation will work if the other side takes an adversarial
bargaining approach will be elaborated upon under point III 2b).
41
See White JJ, supra note 2 at 177.
42
Rohl K, 'Beraten, Vermitteln, Schlichten und Richten', (1979) 7 Schleswig-Holsteinischer Anzeiger 134,
referenced in Alexander N, supra note 1 at 79.
43
Fisher R, 'Comment', supra note 12 at 123.
44
Alexander N, supra note 1 at 78; Boulle L, supra note 2 at 52.
45
Aexander N, supra note 1 at 78.
46
Alexander N, supra note 1 at 78; see also Whiting RA, 'The Single-issue, Multiple-issue Debate and the
Effects of Issue Number on Mediated Outcomes' (1992) 10 Mediation Quarterly 57 at 68-69. Wolsky
provides some examples of concrete strategies used by mediators to accomplish the goal of initiating tradeoffs, concessions and compromises. Those include (1) identifying and utilising directional information, that
is, information as to the flexibility of a party's position and information as to the party's preferences and
priorities; (2) promoting the making of mutual concessions, for example, by use of "What Ifs" and other
conditional or hypothetical examples; (3) suggesting what concessions might be required and why; (4)
explaining the rationale for concessions so that a party does not suffer a loss of face; (4) taking responsibility
for concessions; (5) assisting parties to accept that they have extracted the largest concession possible from
the other party; (6) assisting the parties to compare what they are getting with the consequences of failure to
reach agreement; (7) as a last resort, using the time deadline implicit in the mediator's presence to extract
concessions, see Wolsky B, supra note 2 at 218-219 with reference to Ross L, Stillinger C, 'Barriers to
Conflict Resolution' (1991) 7 Negotiation Journal 389 at 400.
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4. The Hard Bargainer
A further concern expressed about Getting to YES has been whether the principled
approach will work if the other side takes an adversarial hard bargaining approach.47
Fisher, Ury and Patton have responded to this criticism in the second edition of Getting to
YES. In chapter seven they offer a strategy for changing the game to joint problem solving,
which they call negotiation jujitsu. 48 Negotiation jujitsu encompasses simply listening to
the other side and crediting its demands as possible solutions, rather than as competitive
demands. Further, one should show passive resistance so that the other side sees that one is
not going to participate in the escalation of the conflict.49 In the next chapter the authors
suggest that the hard bargainer who is using "dirty tricks" can be most effectively tamed by
principled negotiation over the negotiation process.
50
This includes recognising the
negotiation tactics, making it explicit and calling attention to what is making the
negotiation competitive and ineffective.51
Additionally, William Ury has formulated what he calls a five-step "breakthrough strategy"
for overcoming barriers to cooperation in his book Getting Past No: Negotiating with
Difficult People.52 The first step is to "go to the balcony" and, instead of reacting to one's
opponent's tactics, find a way to buy time for reflection. Step two and three are "stepping
to the side" in order to create a more favourable negotiating climate and reframing
whatever one's opponent has said as an attempt to deal with the problem.53 Fourth, one
should attempt to make it easy for one's opponent to say yes by "building him a golden
bridge".54 That includes involving one's opponent in developing one's proposal, while
presenting it in a way that makes it easier for him to accept and helping him save face by
showing him how circumstances have changed since he adopted his position. In the fifth
and final step "make it hard to say no"55 Ury suggests to educate one's opponent about the
costs of not agreeing, to warn rather than to threaten and to demonstrate one's BATNA.
Reviews by scholars and practitioners show that Ury's strategy has proved to work in many
cases.56
47
See Boulle L, supra note 2 at 52, Westbrook J, supra note 30 at 444.
See Fisher R, Ury W, Patton B, Getting to YES, supra note 4 at 112-123.
49
Id at 112-120.
50
Id at 134-49.
51
Id at 135.
52
Ury W, Getting Past No: Negotiating with Difficult People, Random Century, Sydney, 1991.
53
Id at 59-89.
54
Id at 87-109.
55
Id at 111-36.
56
See, for instance, Westbrook JE, supra note 30 at 446.
48
10
Yet, even if the other party does not respond to those techniques and does not want to play
that game, the principled negotiator can still seek to expand resources and attempt to meet
the parties' underlying interests. Some writers have stated that in some cases the better
solution offered by the principled negotiator will be its own reward.57 Though the
achievement of better solutions may be enhanced if both parties are principled negotiators,
a problem-solving conception need not be abandoned simply because both parties do not
use the same negotiation behaviours. The creative option generation and identification of
objective criteria of just one negotiator is still better than no creativity or objectivity at all.
In the words of Menkel-Meadow, for problem solving to be rewarding, it does not
necessarily "take two to tango". 58
However, Boulle correctly notes that Fisher, Ury and Patton have overlooked the fact that
some parties have ulterior motives for taking part in the negotiations.59 Those ulterior
motives may be, for instance, to exact revenge, to discover information or simply to get the
thrill of competitive confrontation.60 In those cases one-sided principled negotiation cannot
help to bring about an amicable agreement - but any other method of negotiation is not
more promising either.
Nonetheless, even if one-sided principled negotiation cannot help to find a solution both
parties can agree on, it can have a positive side-effect that positional bargaining does not
have. It might contribute to establish a reputation for fair dealing which may prove very
valuable for future business and in future negotiations. As Fisher, Ury and Patton put it, "a
well-established reputation for fair dealing can be an extraordinary asset. It opens up a
large realm of creative agreements that would be impossible if others did not trust you."
Accordingly, it is well worth to engage in principled negotiation, even if the hard bargainer
turns out to be "untameable".
In a mediation, the mediator can employ additional techniques and interventions above
those suggested in chapter seven of Getting to YES and Getting Past No that can assist to
turn intractable hard bargainers to principled negotiators. These include setting the ground
rules for the mediation and visualising the problem on a whiteboard, flip chart, or other
visual aid. The visualisation may get the parties not to focus on their "opponent" but to
"combine against" an objective problem external to them. While setting up the agenda on
57
See, e.g., Menkel-Meadow C, supra note 2 at 838 (Fn 328).
Menkel-Meadow C, supra note 3 at 838 (Fn 328).
59
Boulle L, supra note 2 at 52.
60
Id at 52.
58
11
the visual aid, the mediator should convert the parties' statements into a set of problemsolving questions61, which are open-ended, interest-based, forward looking and provide a
basis and guideline for principled negotiation. Furthermore, the mediator can attempt to
redirect the negotiations away from positional claims by asking the parties not to say what
they want, but why the want what they want. This may help to shift the focus of the hard
bargainer to his or her interests. Another important technique to try and tame the hard
bargainer is reframing. Reframing involves the mediator responding to a communication
from the parties and, without repeating what they have said, reworking their words, terms
and phrases.62 When one party attacks the other in the form of blame for past incidents, the
mediator can reframe the blame as a joint responsibility for tackling the problem and move
the issue from the past to the future. However, the success of these techniques is dependent
the hard bargainer's cooperation. If one party is not interested in a fair outcome and has
ulterior motives for participating in the mediation, the mediator's techniques and
interventions cannot be expected to turn that party into a principled negotiator.
5. Power Imbalances
An additional critique is that Getting to YES neglects the likely impact of power
imbalances in negotiations.63 Where one party can call upon financial, personal or any
other source of power, the weaker party may be unable to use problem-solving techniques
in the face of the exercise of that power by the stronger party.64 Hence, it is argued,
interest-based bargaining assumes a rough equality in power between the parties. Thus,
those critics contend, Getting to YES does not take into consideration that in many
situations, one party is considerably more powerful than the other and is able to prevail
through crude positional bargaining.65
In answering his critics Fisher acknowledges that insufficient attention in Getting to YES
has been devoted to the issue of power.66 He especially stresses that the concept of "power"
is not presented as precisely as it should be.67 Fisher attempts to clarify this and points out
that the role of power does depend upon another's perception of one's strength. He
61
See Fisher R, Ury W, Patton B, Getting to YES, supra note 4 at 63.
Boulle, supra note 2 at 166; Moore CW, Mediator Communication and Influence in Conflict Management
Interventions, in: New Directions in Mediation, Folger JP & Jones TS (eds), Sage Publications, London,
1994 at 218.
63
Anstey M, supra note 2 at 210-19; Astor H, Chinkin CM, Dispute Resolution in Australia, Butterworths,
Sydney, 1992 at 91; Boulle L, supra note 2 at 52, Condliffe P, supra note 2 at 82.
64
Astor H, Chinkin CM, supra note 63 at 91.
65
Boulle L, supra note 2 at 52.
66
Fisher R, Negotiation Power, supra note 12 at 149.
62
12
identifies six sources of power that a negotiator can develop in order to use them to
enhance his own ability to influence the other side.68 Those sources are (1) the power of
skill and knowledge69, (2) the power of a good relationship70, (3) the power of a strong
BATNA (Best Alternative To a Negotiated Agreement)71, (4) the power of an elegant
solution72, (5) the power of legitimacy73 and (6) the power of commitment.74 A skilled
negotiator, Fisher contends, can use negotiation preparation time in order to identify those
sources of power.75 In addition, in chapter six of the second edition of Getting to YES,
Fisher, Ury and Patton particularly stress the negotiation power that results from
developing and improving one's BATNA. 76 They state that developing one's BATNA not
only enables one to determine what is a minimally acceptable agreement, but that it will
probably raise that minimum.77 Thus, they say, developing a good BATNA is perhaps the
most effective course of action one can take in dealing with a seemingly more powerful
negotiator.78
However, all those techniques cannot guarantee equality of power or induce a powerful,
but unmotivated party to negotiate in a principled manner. Accordingly, it is correct to
remark that there are limitations to the utility of principled negotiation, when there are
power imbalances between the parties that cannot be balanced by reference to any of the
above-mentioned sources of power. That is true for both negotiation and mediation, but a
mediator can employ additional techniques to enhance the negotiation power of the weaker
party, such as private caucuses. Still, even private caucuses are often of no great help if the
power imbalances between the parties are structural, for instance if one party is
economically dependent on the other. In cases like these, some mediators refuse to mediate
the dispute from the outset when they detect structural power imbalances between the
parties during the intake procedures.
67
Fisher R, 'Comment', supra note 12 at 120.
Id at 150.
69
Id at 153.
70
Id at 155.
71
Id at 156.
72
Id at 157.
73
Id at 158.
74
Id at 159. For all these sources of power see also Fisher R, 'Comment', supra note 12 at 122.
75
Id at 154.
76
See Fisher R, Ury W, Patton B, Getting to YES, supra note 4 at 101-111.
77
Fisher R, Ury W, Patton B, Getting to YES, supra note 4 at 111.
78
Id.
68
13
6. Objective Criteria
Furthermore, Condliffe remarks that the ability to find objective criteria may be very
difficult and instead, the negotiation may rest on persuasive rationalisations.79 De Bono has
noted earlier that each party in a conflict starts out by believing in the rightness of its case
and later chooses its sources of rightness according to the case it needs to make.80 Along
those lines, White states that the most common approach is for a negotiator first to adopt a
position and later to develop rationalisations for it.
With respect to the criticism by White, Fisher remarks that White seems to be more
concerned with "the way the world is"81, while he is more concerned with "what intelligent
people ought to do".82 He points out that he has never wanted to imply that in most
negotiations there are objective standards that both parties will quickly accept as
determinative. His intention, Fisher argues, was to suggest that in general a negotiator
should seek to persuade by coming up with better arguments on the merits rather than with
mere rationalisations of his positions.83 This, Fisher adds, is often more efficient and
amicable than hard positional bargaining and frequently leads to satisfactory results for
both parties.
Fisher's argument as such is powerful. However, it cannot change the fact that there are
practical limitations of the use of objective criteria. Experience has shown that negotiators
are likely to find their own preferred standards of legitimacy in support of their respective
cases. The criteria put forward by both parties are often equally convincing, but lead to
different results.84 In those cases, the search for objective criteria might result in a separate
spin-off conflict of its own as to which criteria are more legitimate or persuasive.85
Furthermore, there are situations where the parties actually agree that the standard each has
proposed is equally persuasive and legitimate but application of those standards produces
different results. For those cases, Fisher, Ury and Patton suggest that the parties can resort
to fair procedures for resolving remaining differences86, explore trade-offs87 or seek a third
79
Condliffe P, supra note 2 at 82.
De Bono E, Conflicts - A Better Way to Resolve Them, Penguin Books, London, 1985 at 154.
81
Fisher R, 'Comment', supra note 12 at 120.
82
Id at 120.
83
Id at 122.
84
Wolsky B, supra note 2 at 217.
85
Astor H, Chinkin CM, supra note 63 at 84; Wolsky B, supra note 2 at 217.
86
Fisher R, Ury W, Patton B, Getting to YES, supra note 4.
87
Id at 161.
80
14
party's opinion regarding which standard is the more persuasive.88 They were not referring
specifically to a mediator although in some circumstances a mediator might be able to
make an appropriate recommendation.89 Wolsky notes, however, that there is a high
probability that the mediator will not be able to say which standard is the most persuasive
and it will not always be practical for the parties to go outside the mediation to obtain an
independent opinion, even if they are willing to pay the cost of that opinion.90
Thus, there are clearly limitations to the use of objective criteria in both negotiation and
mediation. Boulle concisely summarises those limitations, stating that objective criteria
may be elusive, in that no industry standard exists or the parties have competing standards
of what is fair or objective, expert or legal opinions may be in conflict and may themselves
contribute to the difficulties of achieving resolution.91
7. Perception and Cognitive Biases
Finally, Eidenmuller criticises Fisher, Ury and Patton for overlooking the impact of
psychological barriers on the parties' perception of interests, mutual gain and even
objective criteria. Eidenmuller maintains that cognitive biases, which the parties
themselves are often not aware of, can limit the parties' ability to engage in joint problem
solving. These cognitive biases include (1) loss aversion, (3) the winner's curse, (4)
reactive devaluation, (5) overconfidence, (6) the influence of so-called "sunk costs" and
(7) the law of small numbers.92
Loss aversion refers to the asymmetry in the evaluation of positive and negative outcomes,
in which losses loom larger than corresponding gains.93 In the negotiation context, a party's
own concessions will be evaluated as losses, while concessions by the other side will be
evaluated as gains. However, if one party's own concessions ("losses") loom larger than
corresponding concessions ("gains") by the other side, that party will require the other side
to make relatively more concessions in order to outweigh the loss.94 Kahneman and
88
Id at 94.
See Wolsky B, supra note 2 at 217.
90
Id.
91
Boulle L, supra note 2 at 52.
92
Eidenmuller H, supra note 35 at 48.
93
Eidenmuller H, supra note 35 at 48; Kahneman D, Tversky A, 'Conflict Resolution: A Cognitive
Perspective', in: Arrow KJ et al. (eds.), Barriers to Conflict Resolution, Norton, New York, 1995 at 45;
Mnookin RH, ‘Why Negotiations Fail: An Exploration of Barroers to the Resolution of Conflict’, (1993) 8
Ohio St. J. on Disp. Resolution 235, reprinted in: Trachte-Huber EW, Huber SK, Mediation and Negotiation:
Reaching Agreement in Law and Business, Anderson Publishing, Cincinnati/Ohio, 1998, 180 at 183.
94
Eidenmuller H, supra note 35 at 48.
89
15
Tversky provide the example of two countries negotiating the number of missiles that they
will keep and aim at each other.95 Missiles eliminated by the other side are evaluated as
gains, and missiles one must give up are evaluated as losses.96 If losses have twice the
impact of gains, then each side will require its opponent to eliminate twice as many
missiles as it eliminates - not a promising start for the achievement of an agreement.97 This
example illustrates that the phenomenon of loss aversion is likely to reduce the range of
acceptable agreements and, at the same time, inhibits the parties' capability to invent
options for "mutual gain".98
The winner's curse refers to the tendency of negotiators to settle quickly on an issue and
then feel discomfort about a negotiation win that comes too easily.99 If the other party
makes concessions too promptly, the negotiator may suspect that the other side knows too
much or has insight into an unseen advantage and that he, thus, "could have done better" or
"must have gotten a bad deal".100
Due to the phenomenon of reactive devaluation a negotiator might value an offer
differently, depending on who made that offer. 101 An offer made by the other party might
arouse some suspicion and therefore be declined, although it might be well acceptable on
its terms, whereas an identical offer made by a third and neutral party might be accepted.102
Such devaluation may be based in emotionality or on distrust fostered by past experience.
Reactive devaluation leads negotiators to minimise the magnitude of a concession made by
a disliked other, to reduce their willingness to respond with a concession of equal size, or
to seek even more from the other party once a concession has been made.103
Overconfidence is the tendency of negotiators to believe that their ability to be correct or
accurate is greater than is actually true.104 Overconfidence has a double-edged effect: (1) it
95
Kahneman D, Tversky A, supra note 93 at 50.
Id.
97
Id.
98
As there is a perceived imbalance between one's own losses and gains.
99
Akerlof G, 'The Market for Lemons: Quality Uncertainty and the Market Mechanism', (1970) 84 Quarterly
Journal of Economics 488; Bazermann MH, 'Why Negotiations Go Wrong', in: Lewicki RJ, Litterer RJ,
Saunders DM, Minton JW (eds), Negotiation, 2nd edition, IRWIN, Sydney, 1993 at 204, Thompson L, supra
note 34 at 31.
100
Id.
101
See Ross L, Reactive Devaluation in Negotiation and Conflict Resolution, in: Barriers to Conflict
Resolution, Arrow, Mnookin, Ross, Tversky, Wilson (eds), New York, 1995 at 26; Mnookin RH, supra note
93 at 185.
102
Eidenmuller H, supra note 35 at 48; Thompson L, supra note 34 at 64.
103
Bazerman MH, 'Why Negotiations Go Wrong', in: Lewicki RJ, Litterer JA, Saunders DM, Minton JW,
supra note 99 at 206.
104
Kramer R, Newton E, Pommerenke P, 'Self-Enhancement Biases and Negotiator Judgment: Effects of
Self-Esteem and Mood', (1993) 56 Organisational Behavior and Human Decision Process 110; Bazerman
96
16
can solidify the degree to which negotiators support positions or options that are incorrect
or inappropriate, and (2) it can lead negotiators to discount the worth or validity of the
judgments of others, in effect shutting down the other parties as sources of information.105
Studies have found that overconfident negotiators are usually more persistent and less
willing to move from their positions than realistically confident negotiators.106
Another psychological bias that might negatively affect the parties' capability to engage in
joint-problem solving is the influence of "sunk costs" on the negotiation process.107 Costs,
which have been incurred in the past, might influence the decision of a negotiator. In
extreme situations, the negotiations may just be continued because the participants have
"invested" in the conflict or non-consensual options for a solution.
The law of small numbers refers to the way negotiators learn and extrapolate from their
own experience.108 For instance, if all prior negotiations have been very positional and
distributive, the tendency is to extrapolate those experiences onto future negotiations and
assume that those future negotiations will be distributive as well. Lewicki et al. note that
people who expect to be treated in a distributive manner will (1) be more likely to perceive
the other party's behaviour as distributive, and (2) treat the other party in a more
distributive manner.109 The other party will then be likely to interpret the negotiator's
behaviour as distributive, and will therefore respond in kind.110
Against this background, Eidenmuller states that Fisher, Ury and Patton fail to take into
consideration that the parties' perception of interests, options for mutual gain and even
"objective" criteria might be blurred or distorted due to these cognitive barriers.111 Thus,
these psychological biases can significantly impair the parties' ability to engage in jointproblem solving. Eidenmuller further points out that the authors' recommendation to "put
yourself in their shoes"112 only emphasises one aspect of the meaning of "perception" in
negotiations. According to Eidenmuller, it is therefore of no help when it comes to solving
MH, 'Why Negotiations Go Wrong', in: Lewicki RJ, Litterer JA, Saunders DM, Minton JW, supra note 99 at
206.
105
Bazerman MH, 'Why Negotiations Go Wrong' , in: Lewicki RJ, Litterer JA, Saunders DM, Minton JW,
supra note 99 at 206; Thompson L, supra note 34 at 126.
106
See Kramer R, Newton E, Pommerenke P, supra note 104 at 110 ff.; Lim RG, 'Overconfidence in
Negotiation Revisited', (1997) 8 The International Journal of Conflict Management 52; Neale M, Bazerman
M, 'The Role of Perspective-taking Ability in Negotiating Under Different Forms of Arbitration', (1983) 36
Industrial and Labor Relations Review 378.
107
See Karras CL, supra note 31 at 211.
108
Lewicki RJ, Saunders DM, Minton JW, Negotiation, IRWIN, Boston/Mass., 1985 at 160.
109
Id.
110
Id.
111
Eidenmuller H, supra note 34 at 48.
17
problems that can be traced back to the negotiator's incapability to critically question and
evaluate his own perception.113
It is correct that the parties' perception and cognitive biases can constitute limitations to the
utility of principled negotiation in practice. Still, as also pointed out by Eidenmuller and
Mnookin, in those situations a mediator as a third party neutral might help out.114 He can
assist the parties overcome these psychological barriers and help them become principled
negotiators. A mediator can test the parties' realism and help them to appreciate the
implications of their views and proposals. Reality testing may become relevant at different
stages in a mediation. It may involve asking questions designed to test for non-agreement
(best-worst alternatives to a negotiated agreement), dissonance (what if he/she doesn't) or
incentives required to be given and attitude change ("would you mind if…").115
Therefore, cognitive biases are a greater barrier to negotiation where the parties do not
seek the assistance of a third party neutral such as a facilitator or mediator.
IV. CONCLUSION
This paper has shown that not all of the alleged shortcomings and limitations of principled
bargaining in negotiation and meditation can withstand closer scrutiny.
Tidwell’s claim that it would be more productive to have the parties design specific steps
according to their needs than to ask them to stick to those four principles shows a clear
misunderstanding of the character of Getting to YES. The book is a guide dispensing
advice on how improve one’s negotiation skills. One should not misinterpret it as
providing a warranty containing workable solutions for every single aspect of negotiation.
Provis’ observation that Getting to YES does not distinguish between subjective and
objective and instrumental and ultimate interests is more of academic interest than of
practical use. However, it is helpful to point out that negotiators, as well as mediators,
should not focus exclusively on interests. This is because of the important functions of
positions with respect to negotiation dynamics. Although Fisher, Ury and Patton have
never suggested that negotiators should focus exclusively on interests, to the exclusion of
positions, the novice negotiator or mediator might be mislead to do so. As it might help to
112
Fisher R, Ury W, Patton B, Getting to YES, supra note 4 at 79
Id at 79.
114
Eidenmuller H, supra note 35 at 48; Mnookin RH, supra note 93 at 185.
115
See Step 8 of A guide to the 12-step mediation process as practised by the Dispute Resolution Centres,
Queensland, obtainable from: Queensland Government - Dispute Resolution Branch, 179 North Quay,
Brisbane 4000; Charlton R, Dewdney M, The Mediator's Handbook: Skills and Strategies for Practitioners,
LBC Information Service, Sydney, 1995 at 149; Noone M, Mediation, Cavendish, London, 1996 at 119.
113
18
prevent this potential misinterpretation of the second principle, the criticism by Provis is of
great practical value.
The critique that principled negotiation is not amenable in distributional bargaining
situations cannot be upheld. Although the parties’ interests as to the substantive issues may
be opposed, it is mostly true that both parties have the shared interest in finding quickly
and amicably, a solution acceptable to each. Principled negotiation is the better process to
find such a quick and friendly solution, rather than a contest of will by way of positional
bargaining.
In response to concerns on how to tame the hard bargainer, Fisher, Ury and Patton have
suggested a variety of strategies and tactics. These tactics have often proved to be
successful in practice, however, even if the hard bargainer turns out to be untameable, it is
well worth to engage in one-sided principled negotiation. This is because the creative
option generation of just one negotiator is still better than no creativity at all. In addition,
this one-sided principled negotiation may help to establish a reputation for fair dealing
which may prove very valuable for future negotiations. In a mediation, the mediator can
employ additional techniques above those suggested by Fisher and his co-authors to tame
the hard bargainer. However, if one party is not interested in a fair outcome and has
ulterior motives for participating in the mediation, the mediator’s techniques and
interventions cannot be expected to turn that party into a principled negotiator.
In reply to the alleged impact of power imbalances on the parties’ ability to engage in
principled negotiation, the authors of Getting to YES have identified additional sources of
power that can be used to enhance one’s negotiation power. Yet, these techniques cannot
guarantee equality of power or induce a powerful, but unmotivated party to negotiate in a
principled manner. Thus, power imbalances can limit the utility of principled negotiation in
both the negotiation and mediation context.
Furthermore, there are limitations to the use of objective criteria in both negotiation and
mediation, that is, objective criteria may be elusive, in that no industry standard exists or
the parties have competing standards of what is fair or objective, expert or legal opinions
may be in conflict and may themselves contribute to the difficulties of achieving
resolution.
Finally, it is correct that the various cognitive biases can constitute limitations to the utility
of principled negotiation in practice. However, in those situations a mediator or other third
party neutral can assist the parties overcome those psychological barriers. Thus, cognitive
biases are a greater barrier to unassisted negotiation than to mediation.
19
In sum, the lesson to be learned form this analysis is that Getting to YES should not be
misinterpreted for more than it actually is. While its contribution to both the modern
negotiation and mediation movement cannot be disputed, Getting to YES was intended
more as a handbook on how to improve ones skills to effectively negotiate. It should thus
not be construed as a nostrum for all different aspects of negotiation. Both negotiators and
mediators should consider the four principles of only as guidelines that they should not rely
too heavily upon. Rather, they should expand their repertoire of strategies beyond those in
the book to manage situations that do not fit in the Fisher, Ury and Patton model.
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23