Gutman, Judy --- "Book Review: Negotiation: a Guide to Practical Skills" [2000] LegEdRev 5; (2000) 11(1) Legal Education Review 145
BOOK REVIEW
Negotiation: a Guide to Practical Skills
NADJA M SPEGEL, BERNADETTE ROGERS AND ROSSPBUCKLEY,
NEGOTIATION — THEORY AND TECHNIQUES, SYDNEY, BUTTERWORTHS, 1998, PAGES
1-212.
PRICE $45 (SOFTCOVER) $33.75 (SOFTCOVER AT ACADEMIC PRICE DIRECT FROM
PUBLISHER). ISBN 0 409 31126 X.
JUDY GUTMAN*
Astor and Chinkin define negotiation as “where two or more people
together attempt to reach agreement on some
matter”.1 It follows that negotiation is central
to daily life, be it in the supermarket, at school, in traffic, at home, or in
the work-place.
Even though negotiation is common place and practised widely
(and often unwittingly) by lay people, over the last two decades negotiation
has
been professionalised. “Negotiation” has developed into a term of
art; it is now a “process”2 with discrete
areas of theory and practice.
Although negotiation is widely practised in
traditional forms of dispute resolution, such as the court system, it also forms
the cornerstone
of the alternative dispute resolution (ADR) movement. As lawyers
are the main players in both traditional and alternate dispute resolution
processes, focused and skilled negotiation, as never before, constitutes an
indispensable part of legal practice.
This book by Spegel, Rogers and Buckley
comprises the fourth part of the award winning Butterworths Skills Series. As
the title indicates,
the book’s aim is to integrate the theoretical and
practical aspects of negotiation, forming a comprehensive resource for law
students and lawyers. Nevertheless, the authors’ primary commitment is to
skills-based learning (ix); the theoretical underpinnings
of negotiation appear
secondary. For example, the authors proffer the Fisher and Ury
model3 of “principled” negotiation (22),
and do not explore any other theoretical perspective of negotiation.
Furthermore, the
book fails to consider tensions that are inherent in
negotiation,4 such as those existing between empathy
and assertiveness, and there is little discussion of issues concerning
interpersonal relationships
and interdependence. Although these comments may
appear to be a negative criticism of the book, they are not a criticism of the
quality
of the substantive work. Rather, they illustrate that the book’s
title is somewhat misleading.
The work will succeed at a practical, if not
theoretical, level. Law teachers, students and practitioners will find the work
useful
as a manual; its comprehensive index and plethora of tables, flow charts,
figures and diagrams reinforcing the text. The book satisfies
the needs of those
who learn best by visual aids and representations. A range of practice-oriented
facets of the negotiation process
are addressed in detail, such as the
preparatory regime, communication techniques, identification of negotiation
styles and maximisation
of empowerment strategies.
The ten chapters of the
work divide evenly into two major parts. Chapters one to five concentrate on the
process of negotiation. The
preparatory stage, various negotiator strategies
and, interestingly, confronting ethical issues are all covered in detail. The
last
five chapters comprise the “how to” or skills section.
The
book is written in reader-friendly, “plain English” and in an almost
conversational tone. It is well set out throughout.
The authors seem to ascribe
to the KIS principle — Keep It Simple. For example, they explain the
difference between positions
and interests as follows. “A position is what
you want. An interest is why you want it”. (22) Good use is made of
bulleted
points to summarise advantages and disadvantages. For instance, the
advantages and disadvantages of interest-based bargaining are
listed clearly and
concisely. (30)
Interspersed throughout the text are
“activities”: practice-oriented exercises that provide either a
useful learning and/or
teaching regime, or food for thought and self-evaluation
for the practitioner. A consistent formula assists the reader in using the
book
as a teaching and reference tool despite the authors’ caveat that the work
is “not a reference book”. (ix)
On the first page of each chapter is
an inset containing an overview of the major sections. A cogent (and often
amusing) quotation
and illustration are also presented at the start of each
chapter. A summary of major concepts canvassed in the chapter, a list of
further
readings, and a “mind map” depicted by a flow chart that chronicles
the thought-processes, interests, and goals
associated with the central concept
discussed in the chapter feature at the end of every chapter.
The last
chapter describes and analyses the emerging body of black letter law in
Australia relating to negotiation. The authors summarise
the law relating to
“without prejudice” discussions, pre-contractual negotiating, and
party liability for conduct during
negotiation (including puffery, false
statements and misleading and deceptive conduct). Provisions contained in the
Trade Practices Act 1974 (Cth) and comparable state legislation are
considered.
The appendix at the end of the work consists of three role play
exercises that focus on developing skills in option generating. The
exercises
are a valuable resource for law teachers in a skills-based course. They can be
used as the subject of peer review or can
comprise part of the assessment
criteria in a university subject.
The book’s target market is both law
students and the legal profession. Oddly, the authors assert that, despite
negotiation
being an important component of legal practice, it does not form
part of the curriculum at Australian law schools. While this may
have been true
in the past, this is clearly not the case in the 1990s. Many law schools teach
courses at undergraduate and post graduate
level which address the whole
spectrum of ADR processes.
In this work the authors make an important
contribution to the teaching and practice of negotiation. The readability,
excellent layout
and plethora and variety of high quality assessment tools
contained in the book will ensure that “Negotiation — Theory
and
Techniques” establishes itself as an essential resource for practitioners,
teachers and students of ADR.
* Lecturer, School of Law and Legal Studies, La Trobe
University.
©2000. (2000) 11 Legal Educ Review 145.
1 H Astor and C Chinkin, Dispute Resolution in Australia (Sydney: Butterworths, 1992) 77.
2 For example, see L Boulle, Mediation: Principles, Process, Practice (Sydney: Butterworths, 1996) 46.
3 See R Fisher and W Ury, Getting to Yes: Negotiating An Agreement Without Giving In 2nd ed (London: Century Business, 1991).
4 See R Mnookin, S Peppet and A Tulumello, The Tension Between Empathy and Assertiveness (1996) 12 Negotiation Journal 217.