Principle 4 of Principled Negotiation: Insist on Objective Criteria:

Introduction:

One of the principles or strategies of principled negotiation is insisting on objective criteria. This note will discuss what it means to insist on objective criteria, the essence of using objective criteria, and how to use objective criteria in negotiations.

Meaning of Objective Criteria:

Objective criteria are independent standards or benchmarks used to evaluate options or make decisions in a fair and impartial manner. These criteria are not influenced by personal preferences, emotions, or biases but are instead based on widely accepted principles, facts, or precedents that reasonable individuals can agree upon. In the Course Manual for Alternative Dispute Resolution by the Ghana School of Law, objective criteria is defined as “fair standards and fair procedures that all reasonable people can relate to.”

Examples of Objective Criteria:

In legal negotiations or dispute resolution, objective criteria might include established legal precedents, market value assessments, industry standards, or scientific findings. For instance, in a dispute between a husband and a wife on how property should be shared upon the dissolution of the marriage, an objective criterion would be the case of Gladys Mensah v. Stephen Mensah, Civil Appeal No. J4/20/2011, where the Supreme Court stated that:

…common sense, and principles of general fundamental human rights requires that a person who is married to another, and performs various household chores for the other partner like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner’s catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner, has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved.

This is so because, it can safely be argued that, the acquisition of the properties were facilitated by the massive assistance that the other spouse derived from the other.

Other examples of objective criteria are a coin toss to resolve disputes or the "divide and choose" method, where one person divides a resource, and the other selects first. Randomised selection methods like drawing lots, rotational systems for equal turns, and third-party benchmarks such as market values or legal standards.

Essence of Using Objective Criteria:

Objective criteria are essential to help parties reach an agreement. This is because, when objective criteria are used, the party whose interests are not served can appreciate that they are not being cheated, as the criteria were not developed by the party benefiting from their application.

For example, in a transaction to purchase the Mona Lisa, the buyer may suggest Ghc 1,000,000.00, and the seller may only be willing to sell for Ghc 100,000,000. In such a situation, an agreement is only possible or can only be facilitated by the use of an objective criteria, which in this instance will be a valuation of the painting by an independent expert or appraiser. This expert's valuation would be based on widely accepted standards, such as the painting's historical significance, market trends for similar artworks, and its condition. By relying on an impartial and credible assessment, both parties can shift their focus from their initial positions to a fair and mutually acceptable price grounded in objective facts. This approach not only facilitates agreement but also builds trust and ensures that the outcome is perceived as equitable by both sides.

Using Objective Criteria in Negotiations:

It is one thing to develop or identify objective criteria and another thing to use such objective criteria in a negotiation. The parties can use the objective criteria by adhering to the following:

1. Frame each issue as a joint search for objective criteria:

In a dispute, there may be several issues to resolve. It is essential for the parties to determine which objective criteria would be used to resolve each issue. Law students do this all the time when they assemble the law for an issue. The laws, as assembled, are legal precedents that serve as an objective criteria to discuss or analyse each issue.

2. Reason and be open to reason:

You may come to the negotiation table with what you believe to be the objective criteria for discussing an issue. However, the other party may have a different set of objective criteria. Fisher and Ury [1], in explaining why it is important to be open to reason, said that:

Insisting that an agreement be based on objective criteria does not mean insisting that it be based solely on the criterion you advance. One standard of legitimacy does not preclude the existence of others. What the other side believes to be fair may not be what you believe to be fair. You should behave like a judge; although you may be predisposed to one side (in this case, your own), you should be willing to respond to reasons for applying another standard or for applying a standard differently. When each party is advancing a different standard, look for an objective basis for deciding between them, such as which standard has been used by the parties in the past or which standard is more widely applied. Just as the substantive issue itself should not be settled on the basis of will, neither should the question of which standard applies.

For instance, in a dispute regarding the distribution of spousal property upon the dissolution of a marriage, the man may want to use Quartey v. Martey [1959] GLR 377 as the criteria. In that case, the High Court, speaking through Ollennu J., held that

The proceeds of this joint effort of a man and his wife and/or children, and any property which the man acquires with such proceeds, are by customary law the individual property of the man. It is not the joint property of the man and the wife and/or the children. The right of the wife and the children is a right to maintenance and support from the husband and father.

Conversely, the woman may prefer to rely on the precedent established in Gladys Mensah v. Stephen Mensah (supra).

By this point, the man should be open to accepting that the decision by the Supreme Court in Gladys Mensah v. Stephen Mensah (supra) takes precedence over the decision by the High Court in Quartey v. Martey (supra) . Without the man being so open, they cannot reach an agreement on how the spousal property should be distributed despite the existence of an objective criteria in the nature of a legal precedent.

3. Never Yield to Pressure:

When you propose an objective criteria, the other party may want to abandon it and resolve the issue on the basis of will. For instance, in employing, an objective criteria would be a person’s qualifications and competence. However, a person without the requisite qualifications may seek to pressurise you into employing them because they are your brother, friend, or a fellow believer. When that happens, maintain that the objective criteria be used. According to Fisher and Ury [1],

Pressure can take many forms: a bribe, a threat, a manipulative appeal to trust, or a simple refusal to budge. In all these cases, the principled response is the same: invite them to state their reasoning, suggest objective criteria you think apply, and refuse to budge except on this basis. Never yield to pressure, only to principle.

Conclusion:

There are times when the parties are unable to reach an agreement because none is willing to change his positions, the interests are incompatible, among others. In such cases, the parties may reach an agreement by using objective criteria, defined as fair standards and fair procedures that all reasonable people can relate to. After identifying an objective criteria, the objective criteria can be used in negotiations by framing each issue as a joint search for objective criteria, being open to reason, and not yielding to pressure but to principles.