Je reproduis ci-dessous trois billets de blog publiés ces derniers mois sur le site du PON, Program On Negotiation (lire ici), ce consortium de chercheurs et de praticiens (issus de Harvard University, du Massachusetts Institute of Technology et de l’Université Tufts) dédié à la théorie et à la pratique de la négociation et du règlement des conflits.
Le premier, paru le 3 janvier 2022, rappelle l’essentiel : l’intérêt des techniques intégratives en négociation, gage de gains mutuels et d’accords collectifs durables.
Le deuxième, du 14 juin 2021, rappelle les (nombreuses) ressources pédagogiques proposées par le PON à propos de la négociation d’accords collectifs en entreprise.
Le dernier, daté du 13 septembre 2021, est un plus long billet consacré aux blocages des négociations collectives et au déclenchement de conflits collectifs du travail.
Pour lire d’autres billets du PON Daily Blog, cliquer ici.
Un : Expanding the Pie: Integrative versus Distributive Bargaining Negotiation Strategies
Imagine that you’re buying a used car from its original owner. Of course, you want to get the best deal you can for your money, while your counterpart wants to maximize the value of his asset. After haggling with one another, each side finally arrives at a price point acceptable to both parties. But how much better could the deal have been for both sides if they’d used integrative bargaining?
The above scenario is common in many transactional negotiations: You hold your cards close and share as little information as needed to achieve your goal.
Michael Wheeler, Harvard Business School and Program on Negotiation at Harvard Law School faculty member, asks us to imagine a different scenario, one in which both parties reveal their interests at the onset of a negotiation.
An article by Katie Johnston for Harvard Business School, “The Art of Haggling,” describes the difference between distributive bargaining and integrative bargaining. Getting to Yes, the seminal work from Harvard Law School professor and Program on Negotiation founder Roger Fisher and Harvard Negotiation Project Senior Fellow and Program on Negotiation cofounder William Ury, advocates for integrative bargaining. In integrative bargaining, each side seeks to create an agreement beneficial to both parties.
The integrative approach is taught in most professional schools. Professor Wheeler emphasizes that situations that initially look like win-lose negotiations can often be turned into opportunities for mutual gain and value creation.
Of course, the integrative approach has its limits, and Wheeler notes that the art of negotiation lies in simultaneously creating and claiming value, or “riding two different horses at the same time.” Negotiators are often cautious about revealing too much information, but integrative bargaining explicitly relies upon revealing preferences and interests. As Professor Wheeler cautions, “Sometimes getting 70 percent of the small pie might be better than getting 50 percent of a marginally larger one.” An emphasis on relationship building marks integrative bargaining’s approach as being oriented toward a long-term vision for future negotiations with your counterpart.
Deux : Labor Relations: Negotiating Collective Bargaining Agreements
Contract bargaining in labor relations is one of the most complex areas of negotiation and dispute resolution. There are rarely clear cut or mutually agreed upon notions of what a fair salary and benefits package would be, so employers and workers, either individually or collectively, often find themselves at odds. Furthermore, contract bargaining in a unionized setting is rarely limited to questions of compensation. Working conditions, safety concerns or questions about worker rights, regularly surface and must be resolved. Appropriate negotiation and dispute resolution techniques can help all parties engaged in labor and workplace-related negotiations achieve mutually advantageous outcomes.
The Teaching Negotiation Resource Center offers a variety of role-play exercises to help parties engaged in negotiations and labor-related dispute resolution hone their skills and prepare for upcoming contract negotiations. The Brachton Collective Bargianing Exercise focuses a traditional contract negotiation in which groups representing a municipal school committee and a teachers union must reach agreement internally on a range of contentious issues, and then negotiate with each other. In Costless Wahehouse, an individual recently fired following accusations of embezzlement and his advocate face off against a large company, claim that the real reason for the firing was racial prejudice. In the MAPO Administration Negotiation, a police union and municipal representatives negotiate over salaries and benefits for police officers. Finally, in Collective Bargaining at Central Division, union and management representatives in the telecommunications industry have an opportunity to move away from the traditional hard-bargaining that has characterized their relationship towards a more problem-solving approach to contract bargaining. PON faculty have used several of these role play simulations to help parties worried about upcoming negotiations to explore options for previous adversarial battles that led to strikes.
- Brachton Collective Bargianing Exercise :
This four hour, two-team, multi-issue employment contract negotiation involves three teachers’ union representatives and three school committee representatives. It requires internal team meetings prior to external negotiations. The Brachton Teacher’s Union has been negotiating with the city’s School Committee over teacher contracts which will y expire shortly. Brachton public schools and teachers, funded largely through local property taxes, have come under fire from some segments of the community. Both teachers and school administrators fear that community support for the Brachton schools is diminishing. There is pressure on the school committee, headed by the mayor, to impose a moratorium on all city salaries, including teachers. The issues that need to be bargained have been identified. All that is left is for the two sides to hammer out an agreement. Major lessons that can be taught using this exercise include:
Failure to resolve internal conflicts prior to external negotiations can create problems when it comes time to ratify carefully crafted agreements.
To maximize joint gains, it is necessary to listen closely to the interests of the other side prior to staking out an opening position.
- Costless Wahehouse :
This two hour, five-person negotiation focuses on an employee’s claim of discriminatory firing and the employer’s claim of illegal conduct. Andy Appros is a well-qualified and efficient employee of Costless, a consumer outlet chain, who quickly advanced within the company hierarchy. After three years at Costless, Appros was fired following allegations of embezzlement. Appros claims that his firing was based solely on his supervisor’s racial prejudice. He is now suing the company for discrimination. Both sides wish to avoid a trial and the accompanying publicity, so they have each hired someone to negotiate on their behalf to settle the dispute. Each side possesses undisclosed information which may bear on the outcome of the settlement, and it is up to the clients to determine how much of this information to divulge to their respective negotiators. Major lessons that can be taught using this exercise include:
How does internal conflict manifest itself in verbal and nonverbal behavior?
What differential effects do alternative negotiation and dispute settlement techniques have on the level of conflict? Are partisan perceptions strengthened by some approaches to negotiation while greater understanding promoted by others?
This case provides an excellent opportunity to plan, practice, and test skills in “separating the people from the problem,” and dealing with disputes on their merits.
- MAPO Administration Negotiation :
This three hour, two-team, multi-issue collective bargaining negotiation involves three police union representatives and three municipal representatives. The focus is on police salaries, benefits, and working conditions. Negotiations between the Metropolitan Association of Police Officers (MAPO) and the Administration of Mayor Holmes of Metropolis are about to begin. Discontent police are demanding an increase in the police budget, which is essential in their view if the police are to provide adequate protection for the community. Rising crime rates now rank Metropolis as the 10th most dangerous city in the nation. The MAPO leader has threatened “some kind of protest activity” if the budget is not increased substantially. Proposition 6, which will limit municipal budget increases for any department to a maximum of 6% over the previous year’s allocation, is on the ballot in two months. The mayor’s budget can be enacted before then. The Mayor (who is seeking another term) is anxious to have the police budget settled before the election and has arranged a meeting between his representatives and MAPO. In addition to overall budget increases, specific issues likely to be addressed include: starting salaries, maximum salaries, vacation days, sick leave, holidays, life insurance, pension benefits, health insurance, weapons upgrading, and drug testing. Major lessons from this exercise include:
Using objective criteria; Standards can be developed from careful analysis of the data provided in the exercise as well as from other data collected through outside research.
Finding Pareto-efficient solutions.
Preserving a good working relationship while pressing hard for what might be seen as substantive concessions. This tension is exacerbated by the temptation on both sides to try to use the media to enhance their bargaining power.
Deciding how authority agents should have, whether they can really speak for their principals.
- Collective Bargaining at Central Division:
This three hour, two-team, multi-issue contract negotiation involves three union representatives and three management representatives in a telephone company. The union and management bargaining teams for American Phone Company are preparing for upcoming negotiations. The last round of negotiations in 1986 was disastrous; there was a strike and relationships were damaged. The leadership on both sides would like things to go better this time around and has indicated that they want to work toward a more cooperative relationship. Trust between the two groups has eroded over the years. Any attempt to propose a mutual gains approach to contract bargaining is likely to be opposed by factions on both sides. They have got to address wages, employment security and medical benefits. Major lessons of this exercise include:
There are often legitimate differences within bargaining teams. These internal conflicts must be worked out before serious contact bargaining can begin.
The significance of relationships and trust-building can be studied in the context of collective bargaining. The impact of impact of past and future relationships on implementation of negotiated agreements can be explored.
Issues of representation can be examined, since each of the players represents a group or institutional constituency. Each representative has a mandate which aids or constrains his or her ability to negotiate.
- Teaching Negotiation Resource Center :
Negotiation exercises and teaching materials are designed for educational purposes. They are used in college classroom settings or corporate training settings; used by mediators and facilitators seeking to introduce their clients to a process or issue; and used by individuals who want to enhance their negotiation skills and knowledge.
Negotiation exercises and role-play simulations introduce participants to new negotiation and dispute resolution tools, techniques and strategies. Our videos, books, case studies, and periodicals are also a helpful way of introducing students to key concepts while addressing the theory and practice of negotiation and conflict management.
Trois : Collective Bargaining Negotiations and the Risk of Strikes
When collective bargaining negotiations collapse, the threat of a strike often looms large. We offer strategies for avoiding strikes and, when they do occur, getting parties back to the bargaining table.
Collective bargaining negotiations help level the playing field between individual employees and management by enabling employees to organize and find strength in numbers. But when collective bargaining negotiations fall apart, the result can be a devastating strike.
To take just two examples, back in 1988, the Writers Guild of America (WGA) strike lasted five months and cost approximately $500 million in lost revenues and wages. The 1994 Major League Baseball (MLB) players’ strike led to the cancellation of the season and led owners and players to lose an estimated $1 billion in the years that followed.
Usually, disputing parties would do better to remain at the negotiating table than to head for the picket lines. Yet many negotiators fail to recognize this fact until it’s too late.
A number of factors contribute to strikes and prevent parties from reaching agreement in collective bargaining negotiations:
Overconfidence leads negotiators on both sides to believe their cases are stronger than they really are, while underestimating the other side’s willingness to stand firm. When one side doubts the other side’s claims, a strike becomes even more tempting.
Fairness concerns cause negotiators to reject deals that would leave both sides better off. We sometimes are even willing to pay good money to punish those who treat us unfairly.
Agents at the bargaining table can have incentives that are misaligned with the interests of those they represent in collective bargaining negotiations. At times, elected union representatives may be more concerned about appearing to “stand firm” than with working out a deal with management, for example.
Viewing negotiation as a competition to be “won” keeps us focused on distributive negotiation at the expense of integrative bargaining and stands in the way of an agreement that will satisfy everyone’s interests.
Incremental commitment to a strike can make it difficult to end one. When the decision to “hold out for a few more days” is repeated, a strike can last for months, even years. Economists have long advised us to ignore our past investments of time, money, and other resources when making decisions about the future. Yet such “sunk costs” weigh heavily on us. The decision to cut our losses can be extremely difficult to make.
Strikes often end up being a waste of everyone’s time and money. To avoid or end a strike in collective bargaining negotiations, follow these five steps and enhance your negotiation skills:
*Avoid extreme demands. When talks get heated, it’s tempting to draw a line in the sand. But making firm demands is usually a mistake. When you do so, you prevent yourself from considering alternative proposals that might meet your needs just as well. To make matters worse, demands increase the tendency to escalate commitment to a strike.
*Take the other party’s perspective. Far too often in negotiation, we assume we fully understand the other side’s interests and goals. This is especially true in competitive situations such as competitive bargaining negotiations, where we tend to fall back on stereotypes. By looking for nuances in each other’s positions, we can open up opportunities to brainstorm the types of creative solutions we propose below.
*Get an outside opinion. When collective bargaining negotiations get heated, third parties can add a degree of rationality and impartiality to the proceedings. Before going on strike, seek advice from a disinterested adviser, such as an industry expert. Ask for an objective critique of your plans and encourage your expert to offer alternatives.
*Make it a “virtual” strike. In the midst of the 1994 baseball strike, Harvard Business School professors Michael Wheeler and James K. Sebenius proposed a novel solution, which unfortunately wasn’t followed: resume the MLB season, but do not allow owners and players to receive their revenues and pay. Rather, deposit these funds into an escrow fund to be disbursed only after the dispute was resolved. Presumably, the money rapidly accumulating in escrow during this “virtual strike” would motivate both sides to reach a deal. By building virtual-strike clauses into their contracts during collective bargaining negotiations, unions and management could create a situation in which strikes would not destroy long-term value to either side.
*Structure contingencies. Contingent contracts are an innovative tool for resolving negotiators’ differences of opinion about the future. When you add a contingency clause to your deal, you place a bet on how events will unfold. For example, if parties disagree about how large profits from a certain revenue stream would be, they could stipulate two different profit-sharing formulas based on their different predictions, and then see how the future plays out.
What advice would you add from your own experiences with collective bargaining negotiations?