There’s A Right Way To Negotiate

With the NFL lockout dragging on and with talks frozen until sometime after Judge Susan Nelson rules on the union’s injunction to block the lockout, the odds of any negotiation taking place before May is quite remote. Then again, it seems that very little meaningful discussion has occurred at all.

The critical problem thus far has been that both sides seem intent on sticking to power positions instead of looking for ways to create added value for both parties. This is a big no-no, according to Roger Fisher and William Ury in their influential guide to negotiation, Getting to Yes, Negotiating Agreement Without Giving In.

The two members of the Harvard Negotiation Project lay out four steps to get past conflicts that delay or prevent settlements: Separate people from the problem; focus on interests, not positions; invent options for mutual gain and insist on using objective criteria.

It’s clear the warring parties don’t think much of each other. Both sides have for months used the media in an attempt to sway public opinion.

Neither the NFL nor the players have this concern, since the public is pretty much sick of both.

Being able to separate people from the problem isn’t easy. Regardless of experience or intent, each participant in a negotiation brings with them particular prejudices.

Even if both sides are committed to finding a solution that moves them away from fixed sums to a position of increased mutual gain, cultural, professional and ethical differences can get in the way. And when things get contentious, as they have between the owners and the union, finding common ground is even more difficult. Called “reactive devaluation,” the mutual distrust means that any concession from one side is automatically devalued just because it comes from the other side. As Fisher and Ury write, “Ultimately … conflict lies not in objective reality, but in people’s heads.”

Fisher and Ury write that when parties negotiate over positions, they lock themselves into those positions and that leads to a new interest in saving face. One way to get past the conflict is to quit attacking the other side’s position and instead look for the interests behind it. That is key, because as of yet both sides have been committed to advancing their position instead of exploring their interests.

Which fits with Fisher and Ury’s second point to focus on interests and not positions. The difference between the two is simple enough: A position is what you want and interest is why you want it. For example, the NFLPA does not want an 18-game season. That is its position. The reason it doesn’t want it, at least publicly, is health concerns. That is its interest.

No doubt the biggest mistake the NFL is making in reference to Getting to Yes is the failure to use objective criteria. Fisher and Ury say parties must “insist” on this type of cooperation. For more months than anyone can remember, the union has been asking the league to fully disclose its financial information.

The league has refused until recently, when it offered to submit an audited profitability data of the combined 32 teams to the union. The NFLPA rejected the offer, saying it wanted audited information from each individual team. This information is critical. Without equal access to information, it will be very difficult for either side to move from its bottom-line positions to one that will expand economic opportunities for both parties, which is what a negotiation is supposed to do.

One of the strongest weapons anyone has during a negotiation is the ability to simply walk away. Known as a BATNA (Best Alternative to Negotiated Agreement), this sets a minimum for what either side will agree to. Much like shopping for a new car, if the dealer cannot meet your target price, the best alternative could be going to another dealer or keeping the car you have.

The only alternative to a negotiated agreement for the owners and the players is no NFL football.