One could be forgiven for thinking that the art of negotiation is the sole preserve of Government leaders, diplomats and peace envoys, whilst mere mortals like ourselves observe with awe from a safe distance. 

Indeed, the Government’s recent initiative in this area serves to reinforce this perspective, when – with  the support of the social partners (i.e. the Irish Business and Employers Confederation and the Irish Congress of Trade Unions) - it released a 22-point Action Plan designed to promote collective bargaining over the 2026 to 2030 period.

Government’s ‘Action Plan’

This ‘Action Plan’ was assembled by the Department of Enterprise, Tourism and Employment, boldly stating that collective bargaining: ‘when implemented effectively and in good faith, should be seen not as a cost but as a strategic investment with clear, far-reaching benefits for all parties involved’. It also correctly points out that collective bargaining can make a ‘positive contribution to the economy and society … driving and enabling competitiveness and productivity’. Hence, going forward, the Government has given a commitment to ‘empower, promote, and protect collective bargaining, ensuring workplaces remain fair, productive, and resilient’. However, the  recent annual joint Industrial Relations News and Chartered Institute of Personnel and Development survey found that only about one-fifth of respondents agree that they are ‘fully’ prepared for this Action Plan and don’t need to make any further investment in industrial relations skills.

Clearly, this response overlooks the fact that we’re all negotiators. That is – though you may not think it - you are an experienced negotiator. In fact, you’ve been negotiating since you first cried in the cot, looked for pocket money or swapped toys as a child! That is, you’ve always engaged in purposeful persuasion and constructive compromise, as it’s an integral part of day-to-day living. Whether it’s reaching agreement on who’s getting the dinner tonight or  agreeing responsibility for the child-minding, it’s all about the art of negotiation. 

Though the key criteria for successful negotiations are information and power, to get the best deal, there are also some ‘unwritten rules’ that should be heeded.

The ‘Unwritten Rules’

Firstly, when negotiating, agreement is the aim – otherwise it’s a charade or time-wasting process. Of course, whilst the assumption is that both parties want agreement, one party may be recalcitrant or sluggish, as they exploit the process, whilst discretely establishing a stronger negotiating position with a view to what they consider will be a subsequent superior settlement. However, the (normal) wish of both parties in negotiation is to reach a mutually satisfactory agreement or conclusion.

However, this process does not preclude the use of threats, sanctions or similar tactics, like attacks, hard words and (controlled) temper losses. That is, in the course of negotiations, practices that would be inappropriate in the normal course of interpersonal exchanges can be commonplace. Another tactic extensively deployed is the ‘off-the-record’ discussion. This is a means of ‘feeling the way’, probing attitudes and intentions and smoothing the way to a settlement.

In negotiation scenarios, it is standard for each party to be given an opportunity to state their (opening) position – from which they will move, as the negotiations proceed, via alternate offers and counter-offers, eventually leading to a settlement. To enable progress, concessions made are not normally withdrawn. Nor are firm offers usually withdrawn, although it is legitimate to make and withdraw conditional offers.

To smooth the process, adjournments are taken by mutual agreement, serving the purpose of reviewing progress against one’s objectives and assessing your counterpart’s objectives or latest offer/proposal. That is, adjournments provide an opportunity to absorb new information, review progress and to update one’s strategy. It is also an ‘unwritten rule’ that third parties (like a mediator or the Workplace Relations Commission) are not engaged until both parties are agreed that no further progress can be made between them.  

Whatever the stakes, the best deal normally emerges by breaking  the negotiation process into four stages: Preparing, Opening, Negotiating and Closing.

1. Preparing

The key at the preparatory stage is to establish one’s objectives and to assign them relative priorities. This process also entails deciding on:

• the ideal settlement point that you would like to reach;
   
• the minimum that you will accept or the maximum you’re prepared to concede;
   
• the opening claim/offer which will help you achieve your target and provide sufficient room to manoeuvre in pursuit of your target. The difference between the ‘claim’ and the ‘offer’ is what’s called the negotiation range.

Thereafter, the good negotiator decides:  (a) the ideal route or stages to be followed in moving from the opening to the closing position and (b) the negotiation package or items that one is prepared to trade in pursuit of one’s goal(s). That is, at this preparatory stage one decides what needs to be achieved and how to achieve it. Good preparation also involves assembling all relevant information and structuring it in a logical manner. In the Human Resources arena, this is where resources like Legal Island’s Employment Hub can prove invaluable, as one gathers ‘intelligence’ on practices and precedents on the subject matter under negotiation.

Identify your strengths, including the aforementioned facts or information that support your case.  Support for your negotiating position may also be derived from an existing or previous agreement, comparator norms, custom and practice, previous statements from opponents and hard evidence. The good negotiator will also know the main weaknesses in their own position. As one’s negotiation counterpart is likely to raise these, well prepared responses are essential. As Nelson Mandela put it, when negotiating terms for the takeover of power in South Africa: ‘I rehearsed the arguments they might  make and the ones I might make in return’. Once listed, you’re now ready to enter the fray!

2. Opening

The main purpose of the opening stage of negotiation is to reveal the broad outline of one’s position, whilst gathering as much information as possible about your counterpart’s. The more extreme the opening positions, the more time and effort it will take to discover if agreement is possible.  

To keep your negotiation partner ‘at the table’ it is advisable to open realistically, before challenging their position, exploring their attitude(s), asking questions, observing behaviour and - above all – listening. This should enable one to assess the strengths and weaknesses of their case, the tactics they may deploy and the extent to which they may be bluffing. Where the stakes are high, it is not normal to make concessions at this early stage of the negotiation process, as they may prove invaluable further down the road in efforts to break logjams and secure a settlement.

3. Negotiating/Bargaining

After the opening moves, the main bargaining phase begins. This is when the gap is narrowed, as parties persuade each other side that their case is strong enough to force their counterparts to move. This phase of the process is about exchanging - something gained for something given. Ideally, something relatively unimportant or cheap to you is traded in exchange for something that is valuable to you. It is normally the most intense stage of the process and the best way to avoid disaster is to lead with conditions: ‘If you will do this then I will consider doing that’.

The key words to remember are: ‘if . . . then . . .’, as they are translated to: ‘If I concede x then I expect you to concede y’. In reality, most of us are doing this daily (e.g. ‘if you get the dinner today, then I’ll get it tomorrow’). Related to this, good negotiators negotiate on the whole package, refusing to allow their opponent to pick them off item by item. That is, they prefer to extract the maximum benefit from any potential trade-offs at the final hurdle. Hence, the oft used term that ‘nothing is agreed until everything is agreed’.

4. Closing

When and how one closes negotiations is a matter of judgement, and normally depends on an assessment of the strengths and limitations of both sides’ cases. Standard techniques include:

• Make a concession from the package, preferably a minor one, which is traded off against an agreement to settle: ‘If  you agree to settle at x,  then we’ll concede y.’ In the employee relations arena this is often presented as: ‘if you’ll increase your offer to x%, then we’ll recommend it to our union members (or board of directors) for approval’.
   
• Do a deal (e.g. split the difference, introduce something new such as extending/ shortening the settlement time-scale, agreeing to back payments, phasing in the pay increases, making a joint declaration of intent to do something in the future (e.g. a productivity plan).
   
• Summarise what has happened to date, emphasise the concessions made and the extent to which you have moved, stating that you have reached your final position. But never make a ‘final offer’ unless you mean it, otherwise you may find yourself making a series of progressively disadvantageous ‘final offers’, to your counterpart’s advantage.
   
• Apply pressure (e.g. a threat of dire consequences if your final offer isn’t accepted). In extreme circumstances this may take the form of a threat to relocate, sub-contract or take industrial action.
   
• Give your opponent a choice between two courses of action:  ‘You can have x or y, but not x and y’.

This closing stage is a dangerous time for negotiators. When one is keen to get agreement, it is easy to neglect the finer details of that agreement. This can cause problems down the line, when the agreement is implemented and each side has its own interpretation of what was agreed. So, the final agreement should mean exactly what it says.

It should also be borne in mind that whilst a successful outcome is important, so also is the maintenance of the relationship between the parties. Hence, one’s negotiation ‘opponent’ can become one’s ‘partner’. As the aforementioned Nelson Mandela put it: ‘To make peace with an enemy, one must work with that enemy, and that enemy becomes your partner’. This positive perspective can help when problems arise at the negotiation table, as progress is more easily achieved when parties have a good ongoing working relationship - based on mutual respect and trust – and a genuine desire to keep it that way.