Fundamentals of Negotiating Strategy for Public Employers

Transcription

1 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 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 Certified as a Specialist in Labor and Employment Law by the Ohio State Bar Association. 2 1

2 AGENDA Negotiation Ethics Strategic Negotiation and Tactics Pillars of Effective Communication 3 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? 4 2

3 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... 5 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. 6 3

4 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! 7 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 8 4

5 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 9 10 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! 5

6 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 Settlements Contract language/proposals Correspondence 11 Arbitration decisions Research/ data/ news articles Negotiation notes MOUs 12 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 6

7 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 13 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. 14 7

8 15 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 Preparing For Negotiations Bargaining Team The use of experts in negotiations What can the expert do? Health insurance expert Budget/Finance expert Comparability expert 16 8

9 17 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? 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 18 9

10 19 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 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 20 10

11 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? 21 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 22 11

12 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 23 Stages of Bargaining - End Stage (Impasse Process) Voluntary Agreement (where you can) Mediation Fact-finding Conciliation Unilateral Imposition 24 12

13 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 25 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 26 13

14 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 27 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? 28 14

15 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) 29 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

16 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. 31 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 32 16

17 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 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

18 Pillars of Effective Communication Negotiations = Effective Communication. The Three Pillars of Effective Communication Be Prepared Be Objective Be Aware 35 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!!! 36 18

19 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 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

20 QUESTIONS Brad E. Bennett Zashin & Rich 17 South High Street, Suite 900 Columbus, Ohio (614) Copyright