Frequently Asked Questions

Parties often cannot predict what will happen if they walk away from the negotiating table; there is no clear “second choice” that awaits.  This can be due to changing market conditions, uncertainty around the viability of technologies, volatile or uncertain relationships, or lack of knowledge.  Parties can - and should - estimate a BATNA by taking a range of outcomes into account, estimating the likelihood of each.  By averaging the weighted sum of the alternative outcome values (multiplied by their singular probabilities), parties can derive a single “reservation price” that reflects an estimate of their overall BATNA.  (It is worth noting, that parties often focus too much on the Worst alternative (WATNA) and react by conceding too much at the table.  When their WATNA is quite unlikely, this is a poor strategy.)

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You always have a BATNA; you may not like it, but you have one.  A poor BATNA does not doom you to a bad agreement, but improving your BATNA can give you greater confidence at the table, increasing the chances of a good outcome.

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We have taught the Mutual Gains Approach in both public and private sectors, to all kinds of groups, around the world.  The theory of value creation that underpins our approach (the “What”) is easily recognized and understood by participants across cultures.  At the same time, the communication strategies (the “How”) can vary in significant ways across cultures, because of different social norms that govern individual and organization behavior.  We have written about such variation, and provided an expanded set of process prescriptions, for applying the MGA in commercial negotiations with counterparts in Japan, China, and South Korea

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Yes. There are dozens of studies - and many real-world cases described in numerous business school cases - that illustrate the “inefficiency” of most negotiated agreements in terms of missed opportunities to bring more value to the table, failures to understand the other party’s interests and perceived alternatives, stalled or delayed processes, and frayed relationships. Good academic reviews can be found in Thompson’s Heart and Mind of the Negotiator and Bazerman and Neale’s Negotiating Rationally. The Mutual Gains Approach provides a road map for effective preparation, value creation, dividing the value without destroying the relationship, and delivering on promises and commitments. Testimonials from groups CBI has trained suggest that using an MGA can produce gains of hundreds of thousands - and sometimes millions - of dollars.

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Although the evidence is scant, a review of studies on this topic suggests that changes in both knowledge and behavior are possible from negotiation training. There is evidence from other training literature that the relevance of the training to topics at hand can increase gains. Therefore CBI believes that careful assessment and tailoring of materials is essential for training success. We also believe that for most organizations and teams, training alone is not enough. Effective follow up can help the organization to integrate effective negotiation practice into current business processes, to align performance incentives with negotiation success criteria, and to provide coaching and learning opportunities in real time for negotiators.

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The negotiated rulemaking process is based on the principle that agencies can create better regulations by developing new rules jointly with the people affected by the contemplated rule. Negotiated rulemaking is a consensus-based decision making process. The parties involved in the negotiation process agree in advance that they seek an agreement that all the members of the negotiating committee can live with.

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A conflict assessment is a document that spells out what the issues are as well as who the stakeholders are, where they disagree, and where they might find common ground. The assessment is usually prepared by a neutral outsider, based on confidential interviews with key stakeholders. Typically, after interviewing the obvious stakeholders as well as the less obvious participants suggested by the first group, a neutral party will suggest whether or not it makes sense to go forward with a consensus building process, and if so, how the process ought to be structured.

Such an assessment can be presented orally to the convenor, but it is better that it be written and distributed in draft to everyone interviewed, before it is finalized. The recommendations resulting from a conflict assessment are not the final word. Only the stakeholders themselves can decide whether or not they want to proceed, and, if so, how they want to organize the effort.

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Convening, or the gathering together of parties for a meeting or a series of meetings, is not a skill that depends on training. An agency or organization that has decided to host a consensus building process (and wants to encourage others to participate) can play an important convening role. In a private firm, for example, a senior official might be the convenor. In the public arena, a regulatory agency might want to convene a public involvement process. There is some disagreement about whether or not the convenor or the convening organization is obliged to stay "at the table" as the conversation proceeds. In general, convening organizations want to be part of the dialogue, but we do not feel they must commit to on-going participation in a consensus building process.

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Mediation is both a role and a group management skill. Facilitation and mediation are often used interchangeably. However, we think the key distinction is that facilitators work mostly with parties once they are "at the table" while mediators also handle pre-negotiation and post-negotiation tasks, including identifying the right participants for a consensus building process, assisting them in setting an agenda and clarifying the ground rules, and even in "selling" recalcitrant parties on the value to them of participating.

Once the process has begun, mediators (and facilitators) try to assist the parties in their efforts to generate a creative resolution of differences. During these negotiations, a mediator may accompany a representative back to a meeting with his or her constituents to explain what has been happening. The mediator might serve as a spokesperson for the process if the media are following the story. A mediator might (with the parties' concurrence) push the parties to accept an accord (because they need someone to blame for forcing them to back-off the unreasonable demands they made at the outset). A mediator may also be called upon to monitor implementation of an agreement and re-assemble the parties to review progress or deal with perceived violations or a failure to live up to commitments.

Some professionals have both sets of skills; many do not. A group leader may have mediation skills and may be able to broker agreement by putting those skills to use. But, again, when the search for innovative solutions rests in the hands of one of the parties, it is often hard for the others to believe that the leader/mediator isn't trying to advance his or her own interests at their expense.

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Facilitation is a management skill. When people are face-to-face, they need to talk and to listen. When there are several people involved, especially if they don't know each other or they disagree sharply, getting the talking, listening, deciding sequence right is hard. Often, it is helpful to have someone who has no stake in the outcome assist in managing the conversation. Of course, a skilled group member can, with the concurrence of the participants, play this role, too. As the parties try to collect information, formulate proposals, defend their views, and take account of what others are saying, a facilitator reminds them of the ground rules they have adopted and, much like a referee, intervenes when someone violates the ground rules. The facilitator is supposed to be nonpartisan or neutral.

There is some disagreement in various professional circles about the extent to which an effective facilitator needs to be someone from outside the group. Certainly in a corporate context, work teams have traditionally relied on the person "in charge" to play a facilitative role. The concept of facilitative leadership is growing in popularity. Even work teams in the private sector, however, are turning more and more to skilled outsiders to provide facilitation services. In the final analysis, there is reason to believe that a stakeholder might use facilitative authority to advance his or her own interests at the expense of the others.

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Consensus means overwhelming agreement. And, it is important that consensus be the product of a good-faith effort to meet the interests of all stakeholders. The key indicator of whether or not a consensus has been reached is that everyone agrees they can live with the final proposal; that is, after every effort has been made to meet any outstanding interests. Thus, consensus requires that someone frame a proposal after listening carefully to everyone's interests.

Most consensus building efforts set out to achieve unanimity. Along the way, however, it often becomes clear that there are holdouts—people who believe that their interests will be better served by remaining outside the emerging agreement. Most dispute resolution professionals believe that groups or assemblies should seek unanimity, but settle for overwhelming agreement that goes as far as possible toward meeting the interests of all stakeholders. It is absolutely crucial that this definition of success be clear at the outset.

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