Advisors’ influence on negotiations

Professor Jaswald W Salacuse has published an interesting article titled “The Effect of Advice on Negotiations: How Advisors Influence What Negotiators Do” in the April 2016 edition of the Negotiation Journal. There are some interesting observations made in the article that have relevance for researchers who are analysing negotiations.

Professor Salacuse observes that:

  • Theoretical models of negotiation often overlook the significant role played by people who advise negotiators;
  • Advisors might include family, friends, colleagues or professionals (including, but not limited to lawyers). They may or may not be invited or appointed to give advice to the negotiator to help them decide how to deal with their problem; and
  • Advisors may give advice earnestly or casually, and either kind of advice can have dramatic consequences for the way that a dispute is managed.

He recommends that when examining a negotiation, as a reflective activity or a research analysis, the role and impact of advisors on the negotiation should be routinely and systematically incorporated into negotiation planning and/or the method of analysis. Negotiators should analyse their relationship with their own advisors as well as those of the other negotiating parties. Professor Salacuse’s use of role theory also provides a framework that professional advisors such as lawyers may find useful in articulating their advisory role and style to clients. Role theory differentiates between role prescriptions (external expectations of the advisor’s role), role performance (the advisor’s actual behaviour) and role conceptions (the advisor’s perspective of how they ought to perform their role). For researchers, failing to investigate the identity and influence of advisors over a negotiation process will produce an imperfect picture. Salacuse recommends that researchers ask questions that explore: the content of advice received in relation to a negotiation, the identity of advisors and their relationship with negotiators and other participants, relationship structures, roles played by negotiators and advisors (particularly prescription and performance), resources that advisors brought to the negotiation table, means of influence employed, nature of interactions during the negotiation, and the advisor’s style.

Some of the factors that will vary include the following:

  • The degree of dependence upon the advisor’s expert “repeat player” knowledge (high dependence can make it difficult to reject advice);
  • The importance of role prescription (a non-professional advisor will be less constrained by this than a professional advisor appointed specifically for the purpose of giving advice);
  • Whether advice is sought because of the advisor’s expertise in substance or process, or to validate a fact, policy or intention;
  • Whether an advisor’s participation in a negotiation event is “ornamental” (in the sense that they are there because of their reputational capital) either wholly or in part;
  • Whether an advisor’s conduct and influence over the negotiation creates a separation between the negotiated outcome and the negotiator (which can bring the authenticity of the agreement into doubt);
  • Whether the negotiator seeks advice primarily to validate their own opinion (for example, a family member or friend’s validating advice may be sought because the negotiator wants them to affirm their allegiance rather than form an independent critical opinion about the subject matter of the advice); and
  • The degree of confidence that the negotiator has in the advisor’s technical competence, integrity, and loyalty, which will be strongly linked with the strength of the relationship between advisor and negotiator.

Professor Salacuse describes three structural models of the relationship between negotiator and advisor, that have some alignment with my (Dr Rundle’s) models of lawyer participation in mediation. He talks about the advisor as director who “tends to take control of the negotiating process, directing the negotiator on how to act to achieve success in the negotiation” (spokesperson). The advisor as servant responds to the client’s demands and “the client fully controls the negotiation and may limit the advisor’s participation to specific questions and issues” (any of the absent advisor, advisor observer or expert advisor). The advisor as partner describes the advisors and their clients conducting a negotiation as partners, where “the essence of any partnership is co-ownership and joint participation” (collaborative participant). Of the EU advisors surveyed for Salacuse’s research, 80% indicated a clear preference for a partnership relationship with the people they advised. Kathy Douglas and Becky Batagol’s research in VCAT mediation has shown some support for the collaborative approach to legal advice giving as has Allie Bailey’s research in Roundtable dispute management at Victorian Legal Aid. However, this model is neither traditional nor typical of lawyer client relationships generally.

The article canvasses a broad range of considerations that cannot be ignored if the dynamics of particular negotiations are to be understood properly. These influential factors need to be considered carefully when educating advisors (such as lawyers) and negotiators (anyone) about their choices and behaviours in negotiation settings. They provide a useful framework for reflection for professional advisors.

One final observation from my reading of the article is that Professor Salacuse’s research method was to administer a questionnaire to a group of advisors who he was training, which invited them to assess their own advising and communication style. This self-report of “typical” practice may be useful in gathering data about advisor’s role conceptions, to supplement other data about role prescriptions and/or behaviour. It might be a useful research tool for researchers who wish to learn more about lawyers’ perspectives of their role and practice in advising clients in relation to their disputes. The survey instrument is annexed to the article. I am interested in other researcher’s views about it (but of course all constructive comments on and contributions to this blog are always warmly welcomed).

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About Dr Olivia Rundle

Dr Rundle is a senior lecturer at the Faculty of Law, University of Tasmania. She has worked as a nationally accredited mediator and a Family Dispute Resolution Practitioner. Dr Rundle is especially interested in the role of lawyers in dispute resolution processes and the policy environment that positively encourages lawyers to engage with dispute resolution. She teaches and researches in broad areas of Dispute Resolution, Civil Procedure and Family Law.

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