Brad E. Bennett Fundamentals of Negotiating Strategy for Public Employers - Ohio Township Association
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1/5/2018
Fundamentals of Negotiating Strategy
for Public Employers
Brad E. Bennett
Labor and Employment Lawyer
and OSBA Certified Specialist
17 South High Street, Suite 900
Columbus, Ohio 43215
beb@zrlaw.com
www.zrlaw.com
Brad E. Bennett
• 20 years of experience as a labor and employment lawyer
and human resources professional.
• Represents clients in litigation, collective bargaining,
arbitrations, and administrative proceedings before the
EEOC, OCRC, SERB, SPBR.
• Assists clients with HR compliance, including day-to-day
issues, discipline, handbook policies, job descriptions,
internal investigations, leave issues, FLSA compliance,
salary surveys, and internal HR audits.
• Selected as a “Super Lawyer” every year since 2015.
• Certified as a Specialist in Labor and Employment Law by
the Ohio State Bar Association.
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AGENDA
Negotiation Ethics
Strategic Negotiation and
Tactics
Pillars of Effective
Communication
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Ethics in Negotiations
• Definition of ethics:
– “a system of moral principles or
values; the rules or standards
governing the conduct of the
members of a profession;
accepted principles of right or
wrong.”
– It is the means of doing what is
right, fair and honest
• How important is it in
negotiations?
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Ethics in Negotiations
• Reputation (as ethical or not) plays a vital role in
every negotiation.
– If counterpart believes you to be unfair or dishonest will
be less likely to negotiate a “win-win” outcome.
– If deemed “untrustworthy” – counterpart will default to
“win-lose” strategies
• Remember:
– Reputation takes years to build and only minutes to
destroy . . .
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Ethics in Negotiations
• Don Carty, former CEO of American Airlines
– 2003 – forced to retire after 20-plus years
– He asked rank-and-file union employees to take deep
pay cuts to “save the company”
– He also put together a $41 million pension funding
program for executives at the same time (never
disclosed it during negotiations)
– Union found out through press release and felt he was
dishonest to them.
– His reputation was ruined and deemed “unethical” by the
union. Would never be believed again.
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Ethics in Negotiations
• Being ethical does not mean you can’t use
negotiation strategy to achieve favorable
results.
– Puffing and persuasion are often used
– Citation to helpful facts/cases while downplaying
others…
– Pointing out if the other side has a poor BATNA while
reminding them if you have a superior BATNA
– Not disclosing your bottom line!
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Bargaining Strategy
Basic Rules for Negotiators
1. Everything is negotiable
2. Keep vision of the outcome desired
3. Prepare in advance
4. Ask questions
5. Actively listen
6. Never accept the first offer
7. Try to determine what the other side really
wants
8. Be cooperative and friendly
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Bargaining Strategy - Types of Bargaining
Negotiating strategy used may depend upon the type
of bargaining you are involved in.
– Bargaining for an initial contract;
• Longer and more involved
– Bargaining for a successor contract;
• Generally certain “hot issues” will monopolize the negotiations
– Mid-Term bargaining
• Continuing obligation to bargain over mandatory topics and
“effects” bargaining
• Changes to past practice may involve mid-term bargaining
• Check for a past practice or standards of benefits clause in
contract
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Preparing For Negotiations
STEPS LEADING TO NEGOTIATIONS
• Gather information
• Assemble bargaining team
• Prepare proposals
– (with goals and BATNA in mind)
• Ground rules
…if you fail to prepare, you prepare to fail!
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Preparing For Negotiations
Gathering Information
• The negotiations “binder”
– the single most important document you may have.
• Organizing the binder.
– Article-by-article
– Subject-by-subject organization.
• What should go in the binder?
•Grievances • Arbitration decisions
•Settlements •Research/ data/ news
articles
•Contract • Negotiation notes
language/Proposals
Correspondence • MOUs
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Preparing For Negotiations
Gathering Information
• Secure data from comparable jurisdictions
• Budget information
• Cost of living information
• Demographic data
• Contract language
• Economic data (wages/benefits/increases)
• SERB data and Census data
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Comparable Jurisdictions
• Why are comparable jurisdictions
important?
– Often highlights absurd positions
– Arbitrators value bona-fide
comparable data
• Weight given to comparable
jurisdictions:
– Internal
– Contiguous
– Non-contiguous but “Most Like”
based upon demographics
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Preparing For Negotiations
Assembling the Bargaining Team
• Characteristics to consider for negotiating
team.
– Patience
– Personal credibility
– Persuasiveness
– Objectivity
– Imagination
– Tact
– Self confidence
– Flexibility
– Creativity
– Experience and expertise in particular areas.
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Preparing For Negotiations
Bargaining Team
Skill Sets for Negotiating Committee Members
• Familiarity with Bargaining Unit
• Spreadsheet ability
• Note taking ability
• Knowing what to document (“intent”/rationale/history)
• Who is Chief Negotiator? (what skill needed?)
• Willingness to work, be available and be part of
a team
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Preparing For Negotiations
Bargaining Team
• The use of experts in negotiations
• What can the expert do?
–Health insurance expert
–Budget/Finance expert
–Comparability expert
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Preparing For Negotiations
- Preparing Proposals
• Proposals
– Test your proposals for ambiguity
• Review comparable contracts, internal & external
• Challenge the interpretation of your language
• “Assume the worst” in terms of later interpretation
– Keep bargaining to the essentials vs wholesale approach
– What is your goal/bottom line?
• Decide where to start.
– What are the issues you will face?
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Preparing For Negotiations
-Preparing Proposals
Know the Issues – none exist in a vacuum
• Background of issue
• Bargaining history of language
• Prior decisions on issue – grievances, arbitrations
• Promises made
• Legislation or statutory changes impact
• Side letters or MOU’s
• Policies, rules, procedures
• Internal consistency
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Preparing For Negotiations
Ground Rules
• Ground rules – yes or no?
• Components:
– Press comments
– Formal proposals
– Cutoff date for new proposals
– Proposals in writing
– Length and location of bargaining sessions
– Caucuses
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Stages of Bargaining
- Initiation Stage
This is the “Honeymoon” Stage and is short-lived
“Getting to know you”
Statement of initial positions
Establishment of rapport
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Stages of Bargaining
- Middle Stage
Working Through the Issues
• Finding common ground
• Describe support for the proposal
• Describe how proposed language will work
• Engage in dialogue – identify mutual issues
• Eye towards Internal consistency – impact on
organization
• Try to identify “individual issues” and where there are
“trade-offs”
• What does other party actually need?
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Stages of Bargaining
- Consolidation Stage
Nearing the end and “hot button” or “must
haves” issues remain
• The continuation of exchange of information
• Package proposals become more
enticing/probable
• “Supposals”
• Keep in mind what the conciliator/arbitrator would
consider at this stage
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Stages of Bargaining
- Consolidation Stage (cont)
• Set aside emotions and rhetoric
• Control your destiny
• Review priorities and goals
• Narrow the open issues
• Develop final offers
• Managing the downside - what goes to impasse?
• Assess position of other party
• Eye to the future – how will issue play out
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Stages of Bargaining
- End Stage (Impasse Process)
• Voluntary Agreement (where you can)
• Mediation
• Fact-finding
• Conciliation
• Unilateral Imposition
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Stages of Bargaining -
Mediation Strategy
Mediation - Think outside the box
Preparation and Flexibility
Frame the issues
Flush out position of other party
Avoid “all or nothing approach” here
Non-binding
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Stages of Bargaining –
Fact-finding & Conciliation Strategy
Impasse Resolution Under ORC
• Very structured, formal process
• Multiple criteria for arbitrator
• Data heavy
• Mediation at impasse hearings
• Research Arbitrator and SERB data
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Conciliation Strategy
• The tactics of constructing a final offer – what to
consider.
• Settlement trends
• Arbitration trends
• The other elements of your package.
• “Selling” your offer.
• The different ways of conducting the hearing
– Interest arbitration mode - Chief spokespersons “testify”.
– Traditional litigation mode – Witnesses testify
– Hybrid
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Conciliation Strategy
• The use of experts
– The experts must be communicators.
– Research the other party’s experts as well as your own.
• The arbitrator’s decision.
– “Split the Baby” Implications
– Challenging an arbitrator’s decision.
• How will an arbitrator’s decision impact the future
relationship between the parties?
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General Strategies for Dealing
With Negotiation Tactics
• How to deal with the other side’s use of lies and
deception:
– Be prepared
– Ask probing questions
– Ask for verification/support
– “Call” the tactic and voice displeasure with it
– Discuss what you are seeing and offer to help the other
side switch to more honest behavior
– Respond in Kind?
– Ignore it (but log it)
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Negotiation Tactics
• Other tactics and how to deal:
– “Left at the Alter” – when the other side feigns
backing out of the negotiations at the last minute to
get additional concessions or to force you closer to
their side.
• Don’t fall for it. Let the negotiation session end.
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Negotiation Tactics
• Other tactics and how to deal:
– “The nibble” – when the other side asks for other
“little concessions” after an agreement is reached.
• State that it appears we have not really reached an
agreement and we will need to open other articles back up
so that we can ask for some of our own nibbles
• Deny the nibble.
• Ask if there are any other items they want considered and
instruct no further nibbles will be considered.
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Negotiation Tactics
• Other tactics and how
to deal:
– “Good Cop, Bad Cop”
• Point it out!
• Tell “good cop” that as
long as “bad cop” is
involved, you are going
to place more weight
on the “bad cop” and
will not trust the good
cop to win the day.
• React in kind
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Negotiation Tactics
• Other tactics to shift the “power paradigm”
– Be the most prepared (gather data/support)
– Have alternative BATNA so that you can trade-off/switch
– Control the logistics (where, when, how negotiations
occur, seat arrangements)
– “Sugar and spice” and win-win offers
– Mimic the other side’s mannerisms/non-verbals
– Avoid weak language/disclaimers
• “I hate to ask you this . . . “
• “I know this might sound like a lot but . . . “
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Negotiation Tactics
• Other tactics for union negotiations:
– Generally, do not renegotiate final terms after union
“votes down” part of the signed tentative agreement .
– Always ask for “intent” behind a proposal
– Try to get other side’s “buy-in” by accepting some of their
counter language changes to your initial proposal
• More likely to accept it if they start to “own” the proposal
– Ask other side for “supposals” as to how they would
handle an important issue you want addressed to see if
you can discover an alternative proposal.
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Pillars of Effective Communication
Negotiations = Effective Communication.
The Three Pillars of Effective Communication
• Be Prepared
• Be Objective
• Be Aware
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Pillars of Effective Communication
Be Prepared:
• Organization is crucial
• Research all sides of issues in advance
• You don’t have to immediately respond – it is
acceptable to say “I will get back to you”
– But ALWAYS follow-up
• LISTEN!!!
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Pillars of Effective Communication
Be Objective:
• Don’t attack the person
• Maintain positive attitude
• Don’t get emotional (work on your E.Q.)
• Know facts – NOT speculation
• You must confront the difficult issues
– Seek solutions, common ground . . .
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Pillars of Effective Communication
Be Aware:
• Maintain proper eye contact, tone of
voice, body posture.
• Don’t interrupt (let them vent if
needed)
• Don’t argue
• Don’t say “calm down”
• Don’t be negative.
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QUESTIONS
Brad E. Bennett
Zashin & Rich
17 South High Street, Suite 900
Columbus, Ohio 43215
(614) 565-2075
beb@zrlaw.com
www.zrlaw.com
Copyright 2018
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