How do you negotiate?
Negotiating happens the world over. The bargaining and haggling in bazaars to reach agreements is part of everyday life.
Good negotiations are important to reach good legislative and policy outcomes. They are a core part of the EU decision-making. Despite their importance, there are few people with a successful track record of reaching good negotiated agreements.
By good agreements I mean agreements that (1) meets the interests of both sides, (2) resolve conflicting interests fairly, (3) are durable and (4) are implemented. In the EU context, this is not easy to pull off. To get a wise agreement, you need to satisfy the legitimate interest, and it resolves the conflicting interest fairly. So it’s something that both sides feel like they got a fair deal.
Secondly, it is reasonably efficient. So some negotiating can take forever and you would like it to operate within a reasonable amount of time.
Thirdly, it improves or at least does not damage the relationship.
This post is about how industry and NGOs can participate in the negotiating process for setting new laws and policies. It is not about how governments, the Commission and MEPs negotiate.
- Negotiation Style 1: Hardball
This is being hard-headed and hard-hearted. It’s about basically going to get the best deal you can and whoever you’re negotiating with you let them take care of themselves and worry about themselves because your concern is simply to get the best deal out of the negotiation that you can get out of it. It is the language of horse-trading, haggling, and dealing.
It is common in commercial negotiations. The buyer wants to get it as cheaply as possible and the seller wants to get the most they can. If both sides can’t agree, they walk away.
Hardball works when you can walk away and the future relationship does not matter. Firstly, industries that are regulated and NGOs working to influence law and policy can’t walk away. If they do, they are not going to get anything and will be ignored. It is unlikely they have the political weight to derail the process. I’ve seen it happen. It tends to lead to that interest being ignored for a number of years. Second, you are likely going to continue to need to work with the self-same officials and politicians, and playing hardball and walking away is going to lead you to be placed last on the return calls list.
There is a core problem with importing this style into law and policymaking in the EU. First, you, whether industry or NGO, are not at the table. Governments, MEPs and the Commission are at the table, you are not. Second, the whole policy-making and law-making process is consensual. Third, and this is important, you are not haggling and bargaining in a market bazaar. I have seen it first-hand working in the Commission and for MEPs. The hardball haggling of a bazaar comes across as foreign and alien.
There is an exception. The only time the hardball can work is if you have the clear support of 353 and more MEPs, 15 plus Member States, or 20 plus Commissioners. In that situation, hardball works. But, before using it, make sure you have the votes in the bag, and that everything at the negotiating table knows you do. If you don’t have the votes, hard ball can’t work.
There is a distinct style in the hardball school of negotiations that I call the ‘No Surrender” style. You’ll see it when one side says to the other “Take it or leave it” knowing that the other side will reject it. This leads to the negotiations ending. It usually leads to you getting sidelined for the rest of the negotiations. I’ve seen this style tried many times by both industry and NGOs. After 20-plus years I’ve never seen it work.
2. Negotiating Style 2: Softball.
You need to play softball when the relationship is of critical importance You are giving in to the other side, giving them what they want in order to maintain the relationship.
There are three simple rules to follow when you play softball negotiations:
1. Determine what the other side wants.
2. Give the other side what they want.
3. Suffer the consequences.
The flexibility is that you you may be able to give something to the other side that delivers as good as, or if not better result, for them.
If you need to continue to work with the Commission, Politicians and Member State governments, which is likely the case for many industries working in regulated sectors or NGOs, the softball approach may give you the best long-term results. This works if the other side – Commission, Member States, and European Parliament – agree with you on what is needed.
The biggest challenge for many to this adopting this approach is that they don’t like the taste of appeasement. That aftertaste often biles up just around the same time people realise the negotiating style of haggling in the bazaar does not cross over to legislative and policy negotiations.
3. Negotiating Style 3: Principled.
This comes from Roger Fischer and William Ury in Getting to Yes.
Here you work as a problem solver. You are looking for a win-win solution. The negotiations are based on agreed and fair and objective criteria.
You need to work out the interests behind each position and work out what’s really people really want.
This negotiating style is not easy. It takes a skilled negotiator to pull it off. They’ll find out win-win solutions, that all sides find fair. They’ll not strive to take advantage of others.
I’ve seen this style a few times. It lands up with good outcomes that all sides can live with, and have the agreement implemented. An example is the co-dialogue process of Auto-Oil. It is rare in Brussels.
What can you bring to the table when you don’t have a seat at the table?
The tricky thing is that most of the time you are not at the negotiating table.
You may be impacted by a proposal but you are not at the negotiating table. The negotiating table is reserved for a small group of officials and politicians from the Commission, Member States and the European Parliament.
You can influence the process but you don’t have a seat at the table.
The easiest way to influence the negotiations is simple.
Firstly, step in early, and bring solutions to the table, that are supported by evidence, and have requisite levels of political support. To do this, it helps to be known and trusted.
The trick is you need to adjust from where you are to where (the officials and politicians making the decision) are. You need to tailor your message (supported by evidence) to the audience.
Secondly, you’ll need to switch from being inward-looking and make sure that when you communicate your case, it lands with the audience. This is difficult for many to do. Most people can’t switch from looking at an issue from the point of view to considering how someone else thinks about the issue.
Thirdly, you’ll be able to communicate effectively, namely translate what you want so it sounds, looks and feels the “right thing” to decision-makers. This is not driven by logic. If what you want sounds, look and feels the “wrong thing”, there is no amount of logic that’s going to overturn that.
A good way to test your ask(s) and explanation is to run it by sympathetic officials, politicians and their advisers. If they respond with incredulity and laughter, take note, and adjust your reasoning. Report back to your client how your ask/explanation landed. If they choose to go continue without re-calibration, do so, in the sure knowledge that your ask is likely to receive rejection from decision-makers.
Finally, for your case to be taken up it is vital that you/your client are trusted. If you don’t have a reputation for abiding by any agreement, most people will walk away, or not listen to you at all. If you/your client is not trusted by decision-makers, there is little to no chance of getting what you want taken up.