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Citation: William McCarthy, "The Role of Power and Principle in Getting to Yes," in Negotiation Theory and Practice, eds. J. William Breslin and Jeffery Z. Rubin, (Cambridge: The Program on Negotiation at Harvard Law School, 1991), pp. 115-122.
McCarthy draws on his extensive experience with labor disputes in the United Kingdom to critique the theory of principled negotiation. The principled approach to negotiation was originally set forth by Fisher and Ury in their influential text, Getting to YES. For the most part McCarthy endorses the elements of principled negotiation. However, he notes exceptions to a number of the principles, and closes with two central criticisms of Fisher and Ury's approach.
Areas of Agreement
McCarthy agrees with many of the basic elements of principled negotiation. Each party should try to put themselves in the other party's place, in order to understand the other party's position and interests. Negotiations should focus on the parties' interests rather than their positions. Negotiator should focus on the future rather than the past. Parties should develop and consider as many settlement options as possible. They should assume that mutual gains are possible, and should not assume that one party must suffer for the other to benefit. Fisher and Ury's concept of the party's BATNA (Best Alternative To A Negotiated Agreement) is also very useful. The BATNA is used to define each party's minimum acceptable negotiated outcome. Parties should identify their BATNA, and should not reveal it to the other side unless it is better than the other side believes it to be. Finally, negotiators should separate the people from the problem. McCarthy sees these elements as "part of a useful drill or model which would-be bargainers should practice and commit to memory."[p. 117]
Exceptions and Reservations
McCarthy expresses limited agreement with other principles. Principled negotiators are instructed to always try to maintain or improve long-term relations with the other side. In labor disputes, as in the business world in general, short-term concerns and limitations may often overrule longer-term issues. McCarthy also notes that "often what the parties want is a way out of an immediate impasse, and long-term considerations make this more difficult." While the best agreements may seek to improve long-term relations, this is not always a practical or desirable goal. Principled negotiators are also told to set aside trust, that is, to employ a model of bargaining that does not depend on trust between the parties. McCarthy argues that this approach underestimates the importance of trust in negotiations. Trust is needed in order for the parties to risk exposing their interests and alternatives. Trust fosters informal contact between bargainers which in turn facilitates more formal contact.
Fisher and Ury further stress the importance of taking community interests into account when crafting an agreement. McCarthy points out that in labor disputes both sides claim that their positions are best for the larger community. In labor disputes the nature of the community's best interests are themselves in contention, and so focusing more narrowly on the parties interests may be the best way to reach a settlement. Another principle cautions negotiators to avoid extreme opening positions. McCarthy notes that extreme opening positions have become part of the ritual of labor negotiations. Unions use their opening demands to increase union solidarity. While they are expected, neither side takes these extreme positions seriously. McCarthy also has reservations about the use of brainstorming sessions. In his experience brainstorming is often way to avoid making hard decisions. He observes that "it is the grisly business of getting down to this kind of work that leads some bright spark to suggest another spot of brainstorming. The good bargainer is the one who knows when this has become a substitute for action."[p. 119]
McCarthy has two main criticisms of Fisher and Ury's approach to negotiation. First, they do not provide an adequate analysis of the role of power. For instance, McCarthy observes that their notion of negotiation jujitsu does not actually turn power back on the other party, as claimed. Instead it encourages parties to simply ignore dirty tricks and minor power plays. Fisher and Ury approach the issue of negotiation power through the concept of the BATNA; a better BATNA conveys more power. What is lacking, according to McCarthy, is a discussion of the factors which improve a party's BATNA and which affect the relative strength of the parties' BATNAs. The balance of power between the parties is the key element in determining the limits of an mutually acceptable settlement. McCarthy concludes that, "in the area of collective bargaining, at least, I know of no set of maxims or principles which will enable any of us to escape from the limits set by a given power situation."[p. 121] Getting to YES uses examples drawn from widely differing areas of conflict: from family quarrels to international negotiations, from market haggling to government regulation. McCarthy's second criticism is that Fisher and Ury "assume, rather than argue, that the factors which make for effective negotiation in all these circumstances are the same."[p. 122] Labor negotiations, for instance, involve representation and constituencies. There is a strong political and ideological component to the parties' underlying relationship. Labor-management relations are a "game" which continues over time, and so long-term strategies are possible. These factors significantly shape negotiations, but are not present in all disputes. McCarthy argues that the assumption of a common model of negotiation is premature, and that the effect of differences among disputes needs further study.
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