Business Negotiations: What You Need to Know About Joint-Fact Finding

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Adapted from Joint Fact Finding by Lawrence Susskind in the December 2003 issue of the Negotiation newsletter.

Joint fact finding is a multistep, collaborative process for bringing together negotiating partners with different interests, values, and perspectives.

Joint fact finding typically proceeds as follows:

1. Scope the Dialogue

Parties who disagree about the legitimacy of each other’s claims must first reach agreement on the questions and topics to include on their negotiation agenda.

Such questions usually provoke an information gathering process, although parties may not see eye to eye on the methods this could entail. How can parties resolve these early differences?

By setting written ground rules they all can live with.

The simplest way to generate ground rules is to have a trusted intermediary, such as a professional mediator with the appropriate technical background, carry drafts from party to party until they reach agreement. In their ground rules, parties must ensure that all sides have the technical background or the access to appropriate technical resources necessary to engage in a productive dialogue.

Ground rules might also establish the amount of time and money that participants will devote to data gathering and analysis. They may also include guarantees of confidentiality and clarification of the participants’ positions.

2. Define the Appropriate Methods of Analysis

Once parties agree on ground rules and a fact-finding agenda, they’re ready to select technical advisers and analytic methods that will deliver the answers they need. If each party selects its own advisers, the likely result is the all-too-common case of “dueling experts.” Parties should instead jointly select a set of neutral advisers. (Note: Another benefit of joint fact finding, a shared analysis can literally cut parties’ research costs in half.)

But the task of selecting advisers often brings philosophical differences to the fore.

It is important to ask all advisers to subscribe to the ground rules. They also need to make explicit the assumptions they bring to the problem at hand. Their conclusions cannot be merged until they harmonize their choice of boundaries. They also need to make clear the time frame they are using for their analysis, or their separate contributions won’t fit together.

They should accept responsibility for making clear the levels of uncertainty built into their analysis.

If the analysts have a hard time communicating with the parties or with one another, an intermediary with the appropriate technical background may be needed to carry the joint fact finding process forward.

3. Clarify Roles and Responsibilities

Whether negotiations are taking place inside a corporation or in a more public setting, all parties need to meet with their hired technical advisers throughout the entire joint fact finding process. Joint fact finding will fail unless open communication exists among technical advisers, the negotiating parties, and each side’s constituents.

The advisers may be top experts in their fields, but there are many forms of knowledge that only stakeholders can contribute. In the end, it is the parties themselves who will decide how to act. For this reason, they need to be genuinely engaged with their advisers.

4. Assess Tentative Findings Together

Once the technical advisers have produced the data or analyses requested by the parties, it’s important that they present their work in a face-to-face exchange with all sides in the negotiation. In this step, the advisers present various courses of action to the parties, highlighting the probable gains and losses associated with each. The analysts should help the parties make sense of the findings by pointing out the extent to which their findings hinge on critical assumptions.

For example, when a team of analysts suggests that the risks associated with something are minimal, they need to make clear what they mean.

One way to do this is to refer to comparable risks that most people make in their everyday lives. They also need to make explicit what they are assuming about the company’s probably response to failure, such as its commitment to mitigate any immediate effects that may occur.

By questioning the advisers about their results, the parties can assure themselves that the joint fact finding process has indeed answered their questions. The advisers’ initial findings are likely to trigger a “second order” set of questions, and the parties shouldn’t hesitate to send the analysts back to work.

While repeated face-to-face exchanges will be limited by time and money, a collective examination of a range of “What If?” scenarios is crucial to finding the trading zone.

Note that the analysts’ objectivity remains essential even if they’ve delivered their results. For this reason, they must refrain from recommending any one course of action that might follow from their findings.

5. Communicate Results

In many negotiations, the parties at the table represent large constituencies. Whether the negotiators are corporate employees or neighborhood activists, it’s unreasonable to expect them to communicate the results of sophisticated technical analyses to their constituents without help. Instead, their shared technical advisers might present the results of the joint fact finding process to each constituency separately, or they might put up a website that all participants can use to keep their constituents informed.

Related Article: In Business Negotiations, Talks With Competitors Carry Risks

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