LEGITIMACY
Use criteria of legitimacy as the preferred means of persuasion

Prepared by Wayne Davis

I. On what basis shall we decide issues?

An essential element of any negotiation is the manner in which the parties decide what to do on issues where each proposes a different approach. They can decide either on the basis of willpower (which side can force the other to comply) or on the basis of legitimacy (which side can persuade the other that its proposed approach is fair and appropriate, based on standards or criteria independent of the will of either party).

II. The rationale behind the use of legitimacy.

Human beings seem programmed to desire fairness: Whether it is small children arguing over who gets the bigger slice of cake, or superpowers trying to decide appropriate levels of arms reductions, no party to a negotiation wants to be unfairly treated.

Particularly in complex negotiations (including multiparty ones), the use of criteria helps the parties efficiently produce wise, durable agreements while enhancing their working relationship. In contrast, reliance on willpower to decide questions tends to reward intransigence, produce arbitrary outcomes, damage the working relationship, and set a bad precedent for how the next issue will be decided.

III. Where legitimacy might help.

Once the parties to a negotiation have tentatively decided what they might do (reduce missiles of a certain class, barter one commodity for another), they must decide how to do it (how many missiles on each side? what quantity of commodity X will "pay" for commodity Y? etc.)

Criteria of fairness -- such as international law, principles of general applicability such as reciprocity or most-favored-nation treatment, precedent, the opinion of a neutral party, etc. -- can be used to:

- persuade others of the appropriate answer; and
- protect us against being coerced.

IV. Use legitimacy firmly but flexibly.

1. Frame each issue as a search for legitimate standards. Rather than asking what the other side is willing to do ("If we reduce our missiles by 30%, how much will you reduce yours?"), ask how the issue ought to be decided ("What principle should we use to decide the comparative size of missile reduction? Why?")

2. Reason and be open to reason. In preparation, search for a range of standards that might be applied, and be prepared to argue for the ones that seem most appropriate. In negotiation, start with the argument most favorable to us that we would be willing to argue before an impartial arbitrator. If the other side presents persuasive arguments that another approach is more appropriate, acknowledge the legitimacy of their argument.

3. Do not yield to pressure, only to principle. If the other side applies illegitimate pressure and we give in, we reward their bad behavior and encourage them to repeat it. If, however, they try to persuade us by using reasoned arguments and we change our approach in response, then we demonstrate to them that legitimacy works and encourage them to continue its use.

V. Skills that help in the use of legitimacy.

1. Thorough preparation. A creative and exhaustive search may be needed to find applicable standards that will be persuasive to the other side.

2. Inquiry into their reasoning. To convert a positional negotiation to one based on legitimacy, respond to the other side's demands by asking about the reasoning that underlies their proposal. ("You have proposed that we swap one metric ton of commodity X for 3 metric tons of commodity Y. Why is that ratio a fair one? If you were in my shoes, how would you justify acceptance of this ratio to my superiors?")