Here the Program on Negotiation offers a checklist of negotiation design categories. Whether your overall negotiation design is decide-announce-defend (DAD) or full-consensus (FC), or a hybrid of both, raising these issues is usually preferable to falling into a set of important decisions by default.
Design Choices: Explicit or Implicit?
When planning upcoming talks, should you and the other parties discuss the range of design choices explicitly or let them unfold on the fly? Clarity is usually preferable, because discussion can spur efficiency and commitment to head off misunderstandings – but not always. In contentious situations, the prospect of endless haggling about the “shape of the table” can consume valuable time. Before launching a negotiation about the negotiation, consider the context and the people involved.
Design Choices: Imposed or Negotiated?
Should one side try to impose its design-choice preferences, or should the choice be open to group negotiation? When your company stipulates elements of the process, you can gain control – but you may also generate resentment from parties that could later subvert the decision.
Once you’ve thought about whether your design choices should be negotiated, it’s time to consider several important options.
Auspices
Without deep consideration for the process toward arriving at agreement, you could unintentionally derail it by imposing negotiating conditions under your own ‘auspices,’ that is, you set the agenda, tone, time, and place for the negotiations – leaving your counterparts out of this early and critical process. Doing this may signal partisanship and unilateral control to more skeptical negotiators.
Asking a third party to host and chair the process sets up a more successful negotiation. When principal parties are at odds, a third-party, such as a mediator, may well take the lead in chairing the process.
Mandate
Parties also need to be very clear about the intended output of their forum. Do participants have voting rights or merely the ability to discuss possibilities? Should any agreements arising from the forum bind the participants and their constituents, or will your agreements merely be advisory to some other body, such as a government agency, that will later reach the formal decision?
An ambiguous mandate can also sink the deal.
Participants
When it comes to complex negotiations, the choice of who issues the invitations and who participates can be vital. Should participants be full principals in the process or nonvoting observers? You can directly negotiate such choices or invite groups to select representatives who may or may not have the power to bind their constituents. The underlying vision of the process – DAD or FC, or a hybrid of both – helps determine the breadth and basis of participation.
For more elaborate negotiations, parties may seek coordination, logistics, and process support from a body specifically created or hired for this purpose. In some cases, mediation or outside technical expertise may be desirable, especially when negotiators have divergent expertise and limited resources. To avoid actual or perceived bias, the issue of who pays for such support – the project proposer, an outside entity such as a foundation, or some combination of stakeholders – must be carefully considered.
Agenda and Staging
Negotiators must decide whether to set an agenda at the beginning of talks. Should issues be specifically related to an intended contract or formed by a wider set of stakeholders, as is common in the FC process? Once you’ve established an agenda, it’s time to decide who will deal with which issues. Participants might be broken into subgroups to confront specific issues, or they may negotiate each issue together.
Your negotiations can be ad hoc or consciously staged. For example, you might begin talks by jointly defining problems, followed by fact finding, negotiation of agreed upon issues, and a decision and commitment phase.
Procedures and Decision Rules
Procedures to be decided upon include determining whether to appoint a chair, how to recognize speakers, and how to adopt, revise, and accept documents. When it comes to the actual procedure for reaching agreement, at one extreme, ad hoc deliberation can occur informally; alternatively, decisions may be made through majority rule, through sufficient consensus – enough support to reach a meaningful decision – or by full consensus.
External Communication
Frequently, groups will have conflicting opinions about what information to share with those outside the negotiation, including constituencies and the press. When stakeholders trust one another and are genuinely committed to solving their joint problem, a more closed process will be productive.
However, a more open process will be less apt to generate controversy and opposition from excluded stakeholders and constituencies.
Postdeal Arrangements
The deal forum may not have a life beyond the agreement. Parties may agree in advance on a process for implementation and any possibilities for adaptation or renegotiation. Ultimately, your choice or process design can affect whether you achieve the result you intend and whether interested parties believe that the outcomes of a negotiation were fair, respectful, and inclusive.
Discover step-by-step techniques for avoiding common business negotiation pitfalls when you download a copy of the FREE special report, Business Negotiation Strategies: How to Negotiate Better Business Deals, from the Program on Negotiation at Harvard Law School.
Related Article: Mediation in Transactional Negotiation
