Are there any rules in negotiation?

By Joshua N. Weiss, Ph.D.

Recently I was reading the book Finite and Infinite Games by Simon Sinek.[1] In the book he talks about two different games we play in business (and elsewhere). Finite Games are ones where the purpose is winning, the game is externally defined with fixed rules, the parties are defined, you strategize to win, and there is an agreed upon objective. Then there are Infinite Games, which are characterized by the following: the purpose is continuing to play (i.e. meeting one's goals while also developing relationships), the game is internally defined with known and unknown players, the goal is continual play, the strategy is built around the long term perspective, and the rules are changeable.[2]?

Now, given I have worked in the field of negotiation for the better part of 30 years I began to think – well, which category does negotiation fit it? Either? Both? It Depends? None? And equally importantly, it got me wondering are there any agreed upon rules of negotiation? As you might imagine, it depends on which game you are playing…and even then I was left with more questions than answers.

To think this through I went to the two primary models of negotiation. Positional or distributive negotiation and Interest-Based negotiation. Depending on your view and approach to negotiation, you get two different answers. Let’s dive into each model and compare them to Sinek’s criteria for each game and see if we can answer the question about rules.

A commonly held definition of Positional or Distributive Negotiations is that it is “an approach that frames negotiation as an adversarial, zero-sum exercise focused on claiming rather than creating value. Typically in positional bargaining, one party will stake out a high (or low) opening position (demand or offer) and the other a correspondingly low (or high) one. Then a series of (usually reciprocal) concessions are made until an agreement is reached somewhere in the middle of the opening positions, or no agreement is reached at all.”[3] If we apply this to Sinek’s games it is certainly much closer to the Finite Game perspective. The purpose is indeed winning, the parties are fairly clearly defined, you certainly strategize to win, and there is an agreed upon objective (this last point is a mixed bag because negotiation is internally defined by each party AND externally defined by the desire to reach some form of agreement or by exercising one's Best Alternative To a Negotiated Agreement -- BATNA). However, one aspect is missing. The game does not have fixed rules. More on that later.

What about the Interest-Based Approach to negotiation? According to a think tank I have been an affiliated with since 1995, the Program on Negotiation based at Harvard Law School, Interest-Based Negotiation is defined as a process “in which parties share the interests that underlie their grievances and try to jointly negotiate a solution that satisfies all parties. Interest-based negotiation, or integrative negotiation, involves exploring the deeper interests underlying parties’ stated positions to identify potential tradeoffs and win-win opportunities across issues and interests.”[4] So, back to Sinek’s criteria. Clearly this way of negotiating is less about a Finite Game and better fits the Infinite Model. It is fair to say that the purpose of the Interest-Based approach is continuing to play (meeting short term goals while developing long term relationships), the game is internally defined (again this is a mix of internal and externally defined criteria) with known and unknown players, and the strategy is built around the notion that the rules are changeable. This last point is important and due largely to the challenge all negotiators face, which is incomplete information. If we don’t know everything we need to know at the outset the rules -- whatever they may be -- require some flexibility and adaptability.

We can therefore see that one model of negotiation fits the Finite approach and the other the Infinite approach with one glaring issue to tease out. The concept of rules (defined by the Oxford Dictionary as “one of a set of explicit or understood regulations or principles governing conduct within a particular activity or sphere”).[5] When I finished the book, I asked myself – What are the rules of negotiation? Can these be clearly defined? If not, what does that say, if anything, for those of us working in this realm? I sat for quite some time contemplating these interconnected questions, while also posing the questions to some seasoned negotiation colleagues. We landed on the notion that there are no agreed upon rules of negotiation. In fact, something a colleague said during our conversation rang true. In their words, “When you have seen one negotiation…you have seen one negotiation.” Their point was that negotiations, while following some patterns and having similar dynamics at times, are unique processes that need to be treated as such. (AKA...there are no rules).

But I was not satisfied with that answer so I tried again. In the Positional Approach negotiators experience several tactics – many of them are manipulative and often based on lies and deceit. Unless you are playing a bit of an odd game with unique ‘rules’ this is not a process that has identifiable guidelines or dictates. I searched my memory for all the negotiations of this kind I had been in and struggled to find any agreed upon rules I could identify that did not have some caveats.

Similarly, with the Interest-Based Approach to negotiation there are no concrete rules. There is a collaborative mindset that sees the other negotiator as a problem-solving partner, but I would not exactly call that a rule. There is a search for meaning and underlying motivation. But again, not a rule.

So, this is an open invitation to the negotiation community and those interested. Are there any universally accepted rules to negotiation and, if so, what are they? What am I missing? And what are the implications?

[1] The original concept was laid out in 1986 by James Carse in his book Finite and Infinite Games

[2] https://www.forbes.com/sites/workday/2019/04/30/simon-sinek-applying-the-infinite-game-mindset-to-business/?sh=5c91ee533dd9

[3] https://www.pon.harvard.edu/tag/positional-bargaining/

[4] https://www.pon.harvard.edu/tag/interest-based-negotiation/

[5] https://www.google.com/search?q=definition+of+rules&oq=definition+of+rules&gs_lcrp=EgZjaHJvbWUyDggAEEUYFBg5GIcCGIAEMgcIARAAGIAEMgcIAhAAGIAEMgcIAxAAGIAEMgcIBBAAGIAEMgwIBRAAGBQYhwIYgAQyCQgGEAAYChiABDIJCAcQABgKGIAEMgcICBAAGIAEMgcICRAAGIAE0gEIMzkwN2oxajeoAgCwAgA&sourceid=chrome&ie=UTF-8

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