By Alexios Arvanitis & Antonis Karampatzos
The authors suggest that negotiation is guided by the truth, rather than interests alone, and present to us the basic principles of ‘true’ negotiation. However utopian this idea may prima facie sound, the authors firmly believe that the truth can indeed guide negotiation and help parties converge on a negotiation ‘solution’, which reflects the parties’ joint decision to recognize the other’s claims.
In this short article, we would like to propose that negotiation is guided by the truth, rather than interests alone, and discuss the basic principles of ‘true’ negotiation. Does this sound like a perfect or ‘moral’ idea for an imperfect and ‘immoral’ world? In fact, we will argue that the truth, the concept of which will be clarified later on, can guide negotiation and help parties converge on a negotiation ‘solution’. The term ‘solution’ often refers to the achievement of win-win outcomes and the mutual satisfaction of parties’ interests but we will treat such convergence as the parties’ joint decision to recognize each other’s claims, even those that go beyond or even oppose interests and win-win outcomes.
The idea of truth
‘Win-win’1 is a phrase that is instantly recognizable as the ultimate negotiation goal by anyone who is even faintly acquainted with the idea of negotiation, let alone theorists and practitioners. Scientists in the field primarily seek to understand why people fail to explore integrative potential and offer advice regarding the ways in which negotiators can overcome barriers to the satisfaction of their interests. All advice is essentially built around the idea that people strive to maximize potential gains and that negotiation should be guided by this fundamental striving. This perspective, though, fails to appreciate the dynamics of communication as it unfolds among negotiators. More particularly, it fails to realize that any type of negotiation agreement is founded upon the same building blocks as any type of communicative agreement. We have a simple word for these building blocks: the ‘truth’.
The truth is actually a controversial concept that has been the basic subject of scrutiny for philosophers since the birth of philosophy. According to Habermas, a philosopher that tried to approach truth on the basis of communicative rationality,2 all claims we can make during communication have to be supported by reasons. Not all issues and claims exhibit the same properties though. Moral issues tend to focus on the rightness of norms, aesthetic issues tend to focus on aesthetic criteria, practical issues focus on the effectiveness of means to achieve certain goals, expressive issues focus on the sincerity and truthfulness of intentions. This is why arguments surrounding the moral character of an act need to establish appropriate norms of conduct, arguments concerning aesthetics concentrate on relevant criteria, arguments regarding goal-directed actions should evaluate available means, and arguments concerning self-presentation focus on the sincerity of feelings and intentions. In our view, the ‘truth’ lies in the properties of the arguments that would help them stand the test of communication. If you take into consideration that negotiation is a type of communication, you would expect the acceptability of negotiators’ arguments, and therefore the ‘truth’, to guide negotiation.
Still, mainstream analysis of negotiation fails to appreciate the significance of argumentation and focuses on how the negotiators’ goals can be served. The ultimate objective of win-win outcomes has been proposed by the literature so as to serve the parties’ efforts to maximize their gains. In fact, the underlying reasoning is that negotiation is either guided or should be guided by the negotiating parties’ attempts to satisfy interests in the best way possible. Therefore, what needs to be discussed and evaluated during negotiation are appropriate means that will lead to a beneficial allocation of resources that are on the table, making each party feel satisfied with the final outcome. Only one type of rationality is employed according to this behavioral paradigm: Instrumental rationality, which decides the best way to allocate the resources that are on the bargaining table. Well, if negotiations were as simple as that, they would not be as challenging or as interesting. Let’s take for example the negotiation concerning the sale of a work of art, a painting of a famous French artist. Instrumental rationality considerations would focus on the practical issues of the value of the painting to the owner and the seller and the ways in which their interests could be satisfied. Buyer and seller would negotiate over price, payment arrangements, means of delivery, other cost, freight or insurance issues and any other issue that would be of interest to the counterparts. But isn’t any negotiation of this sort likely to take into account aesthetic arguments about the painting’s artistic nature, expressive issues concerning the intentions of the artist, moral issues about whether the work needs to be displayed in a museum or in a private home, or even the real intentions of the seller and the buyer? All these issues will be brought on the bargaining table and are likely to influence the course of the negotiation. Although agreement in communication is brought about when any claims are able to withstand the criticism of communication counterparts, in negotiation we often fail to acknowledge the breadth of arguments that support negotiating positions and are likely to support agreement. In other words, we fail to transcend instrumental rationality and appreciate the intricacies of communicative rationality.
The persuasive power of a ‘true’ argument
The idea of truth in our case does not refer to a unilateral respect for objective facts but rather to an inter-subjectively created ‘truth’. Aristotle was one of the first to promote the idea of truth through his work on rhetoric: “for one ought not to persuade people to do what is wrong”. In essence, he believed that what is true or just may be proven or may persuade more easily than its contrary. In other words, the persuasive power of a true or just argument is deemed, in principle, to be higher than that of an untrue or unjust one and thus the true argument is seen as a communicative instrument that may more easily produce inter-subjective consensus and agreement.3 Aristotle’s view that the true and the just exhibit superior properties than their opposites may sound utopian but what it really aims to defend is the type of argumentation that will convince other people about the appropriateness of norms, the correspondence to objective facts, the sincerity of intentions, the suitability of aesthetic criteria and, of course, the correct selection of means. This is not the way you ideally convince people, this is the way you practically convince them.
Let’s take an example of a negotiation between a private investor and a public authority regarding the purchase of a public piece of land. As parties gradually reach the core issue of their bargain, the selling price, we are supposed to believe that the public authority should aim for a high price, in order to boost the reserves of the public fund and, thus, serve the public interest; on the other side, the investor is supposed to be interested in getting the land at the lowest possible price, in order to raise her margin of profit. Negotiation should therefore be guided by the opposing forces of the counterparts’ interests. Win-win reasoning proposes a basic technique out of this difficult situation: Adding more issues, other than price, would help parties achieve efficient trade-offs and slowly converge toward a solution. An analysis of this sort rarely takes into account issues beyond the parties’ interests such as the appropriateness of norms -e.g. market values or indexes-, or the correspondence of negotiating positions to objective facts, -e.g. similar precedents-. Still, any arguments used on the negotiating table do not have to be evaluated only on the basis of their potential to satisfy parties’ interests but also on the basis of their ability to persuade an imaginary universal audience,4 or at least a group of people specialized in a certain transaction field or in the matter at issue. In other words and according to a perspective that focuses on argumentation, what seems persuasive to a broader class of people rather than only to a specific person or counterpart has greater chances of being accepted on a negotiating table. So that parties may converge, communicative rationality reasoning will search for solutions that may be accepted by broader classes of people. In the above-mentioned case, parties may agree to receive two or more evaluations from independent real estate evaluators, in order to converge on a ‘true’ assumption of the fair price of the land under discussion. In such a case, interests alone do not pave the way for a possible ‘solution’ to the negotiation. Instead, an independent, third-party ‘argument’, a ‘true’ one, might offer the basis for a mutual understanding, a common ground for businessmen to proceed with their project in good faith and fair dealing. In this way negotiators are offered the chance to look at what lies beyond their immediate interests or desires, which sometimes might not be able to stand the objective scrutiny of ‘truth’ that always lies in reasoned communication.
To be clear: Interests and win-win reasoning are indeed an integral part of communicative rationality mechanisms – on the basis of which it can be argued that businessmen should be interested in increasing their profits–, but they simply do not tell the whole story, since there are many other factors that affect or even guide the negotiation process.
How to analyze negotiation
If negotiation is not captured very well by the concept of interests, we propose to replace interests with a concept that connects communication claims with resources: ‘Claim-rights’.5 As interests offer a more static representation of the connection of negotiators to resources, which presumably exists irrespective of their communication, ‘claim-rights’ are a more dynamic concept that can be used to describe the process of negotiation while it truly unfolds by means of communication.
Let’s take a simple example of a buyer going into the store and offering 90$ in an attempt to bargain the price of a T-shirt, which has an initial price of 100$. If we decided to use the concept of interests to analyze the negotiation objectively, we would essentially perform a cost-benefit analysis concerning the potential sale of the T-shirt, by taking into account all potential options including alternatives to a negotiated agreement for both the store owner and the buyer. Any 5$ drop in the price would be measured only in terms of what the 5$ represent in real money for buyer and seller. However, let’s imagine that the store owner offers to drop the price by 5$. What has she really done? She hasn’t actually given 5$ to the potential buyer. What she has really done is to offer claim-rights over the 5$ to the buyer. During the negotiation, there is a conflict of claim-rights over the 100$-90$=10$ that both the store owner and buyer are trying to reap. In a way, there is a conflict of claim-rights over 10$ that both parties are asserting simultaneously. How can this conflict be resolved? During negotiation—unlike situations of extortion or blackmail,—conflicts can only be resolved when other parties acknowledge and choose to award a claim-right to a particular side.
But why would someone decide to acknowledge any claim-right to another party? Any analysis that takes only interests into account–an analysis that is based on instrumental rationality–will accept only one reason: because it is in their interest to do so. However, our analysis–based on communicative rationality–is much broader and accepts the following reason: because the claim-rights asserted by the other party can be supported in the context of communication. This essentially means that claim-rights are subject to criticism during negotiation and if they are able to withstand objections, they are likely to be acknowledged. Arguments do not only have to do with what the parties stand to gain though. Even in the simple above-mentioned bargaining example, arguments about the aesthetic value of the T-shirt, about the intentions of buyer and seller, about the fair price of the T-shirt or the general state of the economy will complement arguments about the benefits that each party stands to gain, during the parties’ efforts to have their claim-rights acknowledged. In other words, interests are only one source of good argumentation: objective facts, subjective truthfulness, normative rightness, aesthetic value can all provide an equally valid source of argumentation that we have, admittedly in a rather simplifying manner, classified under the label of ‘truth’, i.e. whatever can make people converge toward agreement by creating a mutually accepted basis of argumentation.
Power What about power? Argumentation sounds fine in a perfect world but in the real world money talks and power takes over. Parties are likely not to yield to the power of the better argument but to the power of the party that holds the most resources or the most influential position in a certain negotiation field (see, for instance, the relation between employer and employee). And the way we usually refer to power is as something that stems from having many available resources, not necessarily financial ones – such as various connections, strike rights, media pressure etc. Of course, negotiation is supposed to be a voluntary process; still, parties might often be forced to concede and accept the demands of the more powerful party. As long as we are talking about negotiation, though, it should be understood that parties should have the ability to refuse an offer or even exit negotiations: instead of a forced ‘negotiated’ agreement there is always the possibility of non-agreement, especially when the party that is willing to withdraw holds an attractive Best Alternative to a Negotiated Agreement (the so-called ‘BATNA’). Once, however, the parties choose to accept the demands of the most powerful amongst them (e.g. a trade union threatening to resort to strike, if the employer does not yield to its pressure to sit on the negotiation table), they are invariably legitimizing her power and acknowledging her claim-rights.
At this point, though, it is crucial to differentiate between the power that stems from resources and negotiating power, which stems from the ability to have claim-rights acknowledged. The latter type of power can often be based on the traditional definition that emphasizes resources but can equally be based on widely accepted justice norms, on the truthfulness of negotiators or the ability to base positions on true facts. As long as negotiation is voluntary, negotiating power will be expressed in the ability to support arguments whether that ability is connected to interests or other complementary or even conflicting bases such as norms, aesthetic criteria or objective facts. On the contrary, use of bare power during negotiations may have an adverse effect, i.e. frighten the other side and lead the negotiation astray.
Negotiation, seen as a communicative process, is based on agreement and consensus over the acknowledgment and allocation of claim-rights, however powerful one side might be. Real negotiating power should be able to elicit the other sides’ agreement and thus can be viewed as an additional way to strengthen a claim-right, as long as negotiation is still viewed as a process that requires agreement of all parties involved; in any other case, the whole communicative process can hardly be classified as negotiation, since it is rather closer to blackmail or arbitrary behavior. If, for instance, the world community has to address a serious international conflict and does not first choose to exhaust the peaceful remedies for conflict resolution (diplomatic pressure and so on) and then resort to violence, it actually chooses not to engage itself in a negotiation process at all, thus risking undermining its own prestige and depriving itself of a legitimate argument for military intervention as a last resort. We do not necessarily allude here to soft-power politics –which is, however, a crucial factor of legitimacy in international affairs,– but we merely feel the need to stress the fact that the use of raw power, especially in international relations, must always be tamed and ‘negotiated’ in the above mentioned sense, i.e. legitimized through the process of the mutual recognition of valid claim-rights.
All this may sound somehow theoretical, even utopian. But it could convincingly enough explain why complicated negotiations around the Israeli-Palestine conflict should also address justice concerns as well as practical-instrumental issues. It could explain why Britain’s persistence to satisfy its interests, through the words of its Prime Minister David Cameron, led to its isolation in last December’s EU summit.6 It could further explain why the ability of the USA to incorporate values such as freedom, democracy or protection of human rights in its rhetoric increases its bargaining power whereas the unilateral pursuit of interests undermines its negotiating positions and detracts from its convincing power on an international level.
Negotiation is much more than an effort to satisfy interests: It is a complicated communicative process that is governed by the principles of persuasive argumentation. As such, it is more governed by the truth people are willing to accept than the interests that they pursue. Truth, however, does not reveal itself during negotiation automatically, somehow as a revealed religion, but it must be brought forth through the parties’ communication and by means of inter-subjectively accepted arguments, i.e. arguments that are conceived as fair and convincing by an imaginary universal audience. Although this type of truth does not refer to the absence of lies but to whatever people understand as real, just, ethical and sincere, it should be entirely evident that, in this vein, there is actually no place for lies or deception, since they do not promote a reasoned interpersonal communication and tend to create an atmosphere of mutual mistrust and suspicion between the parties.
Negotiations turn out to work like marriages: lies and deception may be beneficial but they will come up sooner or later and the marriage will eventually break down; even if parties prefer only to satisfy their interests than serve the truth, upholding the basic principles of persuasive argumentation—in one word, the truth—may still protect them from the worst and lead to mutually effective and profitable financial bargains or social relations.
About the authors
Dr. Alexios Arvanitis is a researcher at Panteion University and an adjunct lecturer at Business College of Athens (BCA). He is interested in broad areas of social psychology such as social influence, intergroup relations, and motivation. Specific areas include the study of essentialism, negotiation, social exchange theory, and self-determination theory.
Dr. Antonis Karampatzos, Attorney-at-Law (Athens Bar Association), is Ass. Professor at the Law Faculty of Athens University. He is mainly specialized in Contract and Tort Law as well as in arbitration issues; he is also interested in broad areas of legal philosophy and methodology. Both authors are Certified Mediators of the Chartered Institute of Arbitrators.
1.For principles of win-win negotiation see the best seller: Fisher, R., Ury, W., & Patton, B. (1991). Getting to yes: Negotiating agreement without giving in. New York: Penguin Books.
2.For an analysis on Habermas’ theory see Habermas, J. (1985). The theory of communicative action – Vol. 1: Reason and the rationalization of society. Boston: Beacon Press.
3.See Arvanitis, A., & Karampatzos, A. (2011). Negotiation and Aristotle’s rhetoric: Truth over interests? Philosophical Psychology, 24, 845-860. http://www.tandfonline.com/doi/abs/10.1080/09515089.2011.569910
4.For more about the role of a universal audience in argumentation see Perelman, C., & Olbrechts-Tyteca, L. (1958). Traité de l’Argumentation: La nouvelle rhétorique. [The new rhetoric: A treatise on argumentation]. Paris: Presses Universitaires de France.
5.See Arvanitis, A., & Karampatzos, A. (in press). Negotiation as an intersubjective process: Creating and validating claim-rights. Philosophical Psychology. http://www.tandfonline.com/doi/abs/10.1080/09515089.2011.633692
6.For fuller description of argument see Arvanitis, A. (2012). The truth about negotiations. Project Syndicate. http://www.project-syndicate.org/commentary/the-truth-about-negotiations