Laws of Power 39: Know the Triggers
By Karen S. Walch
Over the centuries, the classic hardball negotiation orientation has been shaped by military strategy and scenarios. Today, methods to deceive others and to prevent others from doing the same continue to be promoted through folk stories and popular idioms. “Deceive the Sky and Cross the Ocean” reminds negotiators to divert a counterpart with slight of hand, and “Surrounding Wei to Rescue Zao” outlines how to attack vital weak points and avoid direct communication. This week’s law will focus on the need to use a rights-based negotiation approach when deceptions and smoke screens lead to an impasse or breakdown in negotiations.
When attacks, traps, and distractions prevent you from meeting your negotiation needs or protecting your rights, it is often time to employ rights-based practices. If your counterpart does not respond to an integrative method, this is a critical time to trigger legal or contentious procedures. In the next several weeks, we will explore the triggers for, benefits of, and procedures to follow for a rights-based negotiation process.
Throughout the 48 Laws series, we have focused on how integrative approaches are best because they can preserve personal and professional relationships, increase value, and generate creative thinking and solutions. It continues to be the case, however, that there are many negotiators who are still unfamiliar with the integrative negotiation approach and underestimate the power of the problem solving method of negotiation. Sometimes, despite all your efforts to use an integrative negotiation approach, your counterpart continues to use deception, takes advantage of you, and uses destructive techniques.
This week we will address how to think about utilizing a legal or industry procedure to force the other party to acknowledge your rights in a professional and constructive manner. Regional, international, and industry courts or arbitration procedures, for example, can provide the much needed framework for protecting your rights and interests when your direct problem solving negotiation skills cannot. The rights-based procedures and skills may require you to hire an agent or lawyer to protect and advocate for your rights because there are often rules, timetables, requirements, and procedures that must be followed.
Either with an agent or through direct representation, a rights-based approach requires negotiators to: 1) switch from perceiving counterparts as partners, but as adversaries; 2) think not in a creative problem solving way, but in a contentious and rigid procedural manner; and 3) expect that an agreement will not be designed by the negotiators themselves, but imposed upon them by an adjudicator.
Whether it is the result of deliberate deceptive tactics or unintended consequences of linguistic or cultural gaps, negotiations can break down or parties do not deliver what is promised in their contracts. When trust is low between the parties, they often have conflicting expectations about how a dispute or damages can be resolved fairly. Distrust, uncertainty, and lack of information are often common in disputes where the parties believe that their interests and rights have been violated.
These difficulties are also compounded by geographic distance and jurisdictions in global negotiations. Therefore, it is important to adopt adjudication processes which can protect your rights in a fair and legitimate fashion.
For many global and cross national negotiation disputes, there is an increasing interest in arbitration and Alternative Dispute Resolution. The International Chamber of Commerce (ICC), International Court for Arbitration, for example, is increasingly in demand and effective in resolving disputes when parties cannot agree on a particular national jurisdiction for their rights protection. ICC arbitration has for many years been the preferred method of resolution for foreign-related commercial disputes in China, for example.
China serves as a good illustration of how ICC arbitrators have, at least until recently, been more experienced and better qualified in the cross-national negotiation disputes than local judges. ICC procedures have been more flexible and predictable than local courts, and are not subject to a lengthy Chinese court appeal process.
Arbitration in China is governed by the Arbitration Law of 1995 and the Civil Procedure Law of 1991 and the Chinese Supreme Court now requires courts to monitor the enforcement of rulings. The China International Economic and Trade Arbitration Commission (CIETAC) is the best known Chinese local institution for foreign-related disputes. CIETAC recently released information about its panel of arbitrators and it included over 200 foreign arbitrators. CIETAC hearings tend to be short and often last only one day.
In response to international commercial negotiation disputes in China, there are now several fair and effective rights-based protections there today.
Law 39 Exercises
Here are some preparation questions to consider:
1. Analyze the history of the issue and evidence that led to your dispute. You will be requested to provide the name and addresses of each of the parties, a description of the nature and circumstances of the dispute, a statement of the relief sought, and any comments about the arbitration laws.
2. Arrange for public hearing. Most arbitration tribunals meet at least once a month or several times a month. Some arbitration findings become public knowledge and some sessions are confidential. Once a case is submitted, this sets the arbitration in motion and the arbitrators make decisions as required by the procedures.
3. Use pressure, delays, and adversarial positions. Legal and adjudication processes have many timetables and procedures to follow. It is common to be uncertain about long it takes for a decision to be made in most cases. Pressure tactics, delays and counter suits are to be expected.
For an overview of international arbitration and current practices in China, see International Chamber of Commerce, International court of Arbitration.
48 Laws for 21st Century Global Negotiators: Join Thunderbird Professor Karen S. Walch, Ph.D., as she explores the laws of power for 21st century global negotiators. Each Monday she discusses one law and provides an exercise to identify and enhance individual negotiation power. Go to the main menu for the series.