12. BATNA What If We Can’t Reach Agreement? Best Alternative To A Negotiated Agreement
Editor's Notes
This is part 2 of the presentation about interest based bargaining. In this presentation we will discuss the specific terminology and how it is applied as a relates to the integrative technique of negotiations known as interest-based bargaining or interest-based negotiations.
the 1 st term as at relates to the process of interest based bargaining is the term issue. You have heard me use this before and also in the last presentation, more specifically. Essentially every matter that comes before a negotiator that requires a resolution or satisfaction is defined as in issue for purposes of interest based bargaining. Let me give you an example of an issue that arose in a collective bargaining agreement that I was negotiating in the past. I was representing a very large bargaining units of school employees in Southern California. Let’s just say that the school was in pretty bad shape. Frankly it isn’t a school that I would be pleased to attend or be proud of as a parent. The school need significant repairs, maintenance and general upkeep. In this case it was not a lack of funds that led to the school ending up in a state of major disrepair it was because the school was so overcrowded that students could not be shuffled around and placed in different classrooms while maintenance workers and skilled trades personnel work on these classrooms. Therefore the maintenance and upkeep just wasn’t getting done. The situation became intolerable to the administrators, the students, the school board, and even the employees acknowledged that something needed to be done. The problem occurred because all of the maintenance workers and skilled trade workers worked on the day shift when the students were in session. There wasn’t a 2 nd shift except for the custodians and the custodians are not the individuals who would make these kind of repairs that were needed. The administration unilaterally decided to shift the entire maintenance crew to the night shift. Thus the work could get done while students were not in session. This decision was not permitted by the collective bargaining agreement. The unilateral action also constituted an unfair labor practice because the employer failed to negotiate a change in working conditions. As you can see an issue has developed between the union and the school district. The workers recognized the need to have the work done but the sudden change in employment hours significantly altered the lifestyles and commitments of the workers. You had workers who coach their children’s soccer teams, this was in the fall. You had workers who had just enrolled and had been attending college evening classes for a few weeks. You had workers who had childcare problems as a result of this decision. It turned out to be one big mess because it involved so many workers. So there’s an issue and when you negotiate an issue in collective bargaining using an interest based model it requires the parties to specifically and thoroughly define the issue so there is no dispute as to what the issue is all about. The 2 nd part of defining an issue is then framing the issue in the form of a question. The question about the issue is framed in a way in which the parties set out to try to negotiate an understanding and agreement that will resolve the issue and satisfy the respective interest of each party. I will carry this issue through the remainder of the other topics discussions in this presentation so as to carry the theme of how the terminology and processes applied.
now were going to talk about interest. Before we talk about interest let’s wrap up on the term issue so we can segue into the term interests and how that works. Once the issue is defined then a question, if you will, is then framed in a matter that poses a question of how to or how do we satisfy the issue whatever the issue may be. Here is an example applying the issue that was discussed. Everyone seemed to agree that something needed to be done about the working conditions. But the workers also had their own needs their own interest that needed balance with the needs of the employer. The school had terrible infrastructure conditions and the workers had their lives turned upside down, and maybe that’s an exaggeration but it had to be there, and they had their needs. They wanted to go to school. they wanted to spend time with her children. They wanted to make sure that they could adequately take care of their child as a relates to child care. It was not an easy circumstance because of so many people suddenly affected. As a result of agreements and an unfair labor practice charge that were filed, the district agreed to reinstate the former status quo. This means they put the employees back on the regular shift. But the parties also agreed to meet and negotiate because there was a mutual understanding that there was an emergency situation. It was a situation that definitely required attention. I can remember walking into this place and thinking oh my goodness. There wasn’t a maintenance worker that I spoke to who did not concur that the issue needed to be addressed. But they did not want they being the workers want to satisfy the interests of all others without having their own interests satisfied. And I’m probably being redundant but eventually the matter was resolved and everyone was happy. But I’m getting ahead of myself So how do we frame the question? how do we frame the issue? While I don’t have the exact document in front of me. It was framed something like this. ” How can we restore the school to an acceptable and safe environment for students, faculty, and staff?” this is approximately how it was framed. It’s that simple. It does not contain a position with in it. It does not specifically mention the maintenance workers. It assumes that there may be more than one option available that would restore the school to acceptable standards. Assigning assigning the maintenance workers to a 2 nd shift is just one potential option. And there would be others a lot of others that were considered. I’ve talked a lot about issues, and and you just seeing how an issue can be framed. When we are negotiating the question that is framed is always before us. Typically it is on a whiteboard or a flipchart but it is before us it stares at us and reminds us what were their to talk about. Now the interests are those that require satisfaction. So what were the interest of the employer what were the interest of the students what were the interest of the employees what were the interest of the school board. There was no shortage of interest in this particular matter. But I must be brief for purposes of this lecture. So the interest of the employer was to ensure that they provided a safe and acceptable learning environment for their students. The students had an interest in having a safe and acceptable learning environment. That is what is known as a shared interest they both had the same interest. There were other interest that were brought out but essentially that was their primary interest if you can satisfy that primary interest most of the other interests that I call sub interest will be satisfied as well. The school board had the same interests but they also had a political interests. Walk because there political their elected. They didn’t want to be in the newspapers with a story that says school board does not provides acceptable environment for its students. So they had an interest shared with the primary interest of the students and administration. But they also had an interest in ensuring that this would not become a political nightmare. And that is a reality for persons who are elected. The workers had a variety of interest depending on their perspective or their need. For instance you had some workers, questions that you be you know what I mean, that didn’t have a problem working a 2 nd shift. Why because it gave them an opportunity to do things during the day. Then you have workers who working the 2 nd shift denied them the ability to go to school in the evening and you had workers who had other activities that they were engaged in in the evening. So let’s look deeper at these interest for instance of one worker. No I could spend the time giving you the interest of the different workers for purposes of illustration but I’m just going to take time to give you one example of a defined interest of a worker. Let’s take the worker who was going to school. In this particular case this worker had been going to school at night for actually several semesters. This worker was attempting to get their degree for the purposes of improving their ability to get a better job and earn greater income. So you could say their interest was to get a better job and earn greater income. Going to school or college was a means in which to achieve that workers objective and satisfy their interests. Ensure that this is making sense to you now. so while they have interest in going to school, their underlying motivation or their primary interest was going to school to improve their ability to get a better job to earn more income. That additional income can improve other areas of your life. But suddenly that worker’s means of going to school has been not only disrupted it has at least been temporarily suspended. Therefore their interest was not satisfied. In this case this worker agreed that something needed to be done to improve the conditions of the school but the worker also felt that his needs should also be taken into consideration. Thus the need for unions and the right to negotiate to satisfy those needs.
We have discussed issue, interest, and now were going to talk about options. Options represent potential solutions to the problem. Options replace positions. Positions are equivalent to a 1 idea one solution belief. Options represent the belief that there are multiple possibilities that are available that may, and I emphasize may, satisfy the interests of both parties. Using the example of the issue of the school conditions here are a few of the options that were generated among many. One option was to seek volunteers among maintenance workers, another option was to contract out the work, another option was to exempt workers from a shift change while they were in school or until their child care problems could be resolved, another option was that workers would from 10 until 6 Since you got out at 2:30 workers could could put in and out about a today each day while students were not in attendance. As you can see these are options. These are not positions. A position would be a proposal by the school district to say you’re going to the 2 nd shift. As options are created, they are improved. As a discussion unfolds about a particular option ideas and concerns will arise and those ideas and concerns are built into re-defining the option in a manner in which a possibility improves to satisfy the interest. The difficulty in any negotiations is attempting to satisfy as many interests as possible in a general way that gains acceptance. Let me explain. Because there were so many variables as a relates to the different interest of the maintenance workers, their interests cannot be ignored but it may not be possible to satisfy every single person’s interests. But every effort must be made to mitigate the circumstances that has a negative effect on the interest of an individual or party. In in the issue we been discussing there was a negotiated outcome. The outcome was acceptable to both parties it was ratified by both parties and overwhelmingly accepted by the maintenance workers. This was ratified only by the maintenance workers on the union side because it was a specific situation that applied to them only. Essentially the outcome was the work would be done by the union workers but within terms that were acceptable to both sides. Now you’re asking okay what were those terms. So I won’t pull in news 11 on you and I will share with you what the outcome essentially was. The work was deferred for the semester. One half of the maintenance workers were then assigned to work a 2 nd shift beginning the next semester. Individuals who wanted to volunteer were except 1 st . Unfortunately there were not that many volunteers. workers who did not volunteer were selected by lot. Any worker who had a specific condition that inhibited their ability to work a night shift were mitigated to the extent possible. At the time it was estimated it would take approximately two semesters to complete the work. However since the work since the work would begin in January when the semester ended in June the workers would be restored to the day shift. In the event that the work was not completed by the beginning of the new fall semester then the other half of the workers who had not worked the previous 2 nd shift would now replace those who’d had. It was agreed that when the work was completed all workers would return to the former status quo which was the day shift. this outcome satisfied everyone’s interest. It restored a relationship that had been damaged as a result of a unilateral change and it demonstrated that the parties could work together and solve their problems more effectively than they could if they were exclusively administrated by management. Following this experience other opportunities arose that created a refreshing partnership and satisfying significant problems. So there you have it as a relates to how options work.
now you know what an issue is. You know what an interest is. You know what an option is. And you really also know what a position is since we’ve already discussed it. But, let’s review very briefly one more time. A position put simply is just one idea pushed upon the other party. Which predictably will result in a counter position pushed back to the opposite side. It represents one solution and one solution only that each party is promoting. There are no options generated. Unless you literally describe a series of positions as positional options but they’re not generated as such. In the last issue discussed the school district’s original position is moved to the 2 nd shift. The union’s position was you just committed an unfair labor practice and you just violated the contract so restore the status quo or will take action. Though they were negotiating yet they were taking positions. It was about power. It was not about solving a problem together. It was a win lose proposition. School districts piece of the pie is were going to get our work done and you are powerless to do anything about it. Essentially that was the districts miscalculation. But they took that action that became their position. Versus, the integrated manner of bargaining through interest-based negotiations resulted in a favorable outcome not derive from positions but derived from options that were generated improved and and creatively packaged in a way that satisfied the interest of all parties. So when you think of positions think of a position as it is a win lose proposal. It is a I’m taking more of the pie and I’m going to leave less for you. So I think we’ve pretty well talked about positions and I’m sure you have a clear understanding of it at this time.
criteria is an objective standard used to determine whether or not your proposal or option is fair reasonable, workable, etc. I have used examples of criteria for purposes of negotiating a price for car. I use example of a consumer report taken to the dealer and used as your data and background information to support your offer on the car. That report is your criteria. When we are negotiating a contract it’s unlikely were going to use a consumer report. Were going to use data for wages such as prevailing wages in the general market among similar employers. We will use the consumer price index as a means of which to measure a fair wage. We may look at patterns of bargained outcomes among other similar industries. In the example issue we’ve been discussing we may look at other collective-bargaining agreements to determine how they have applied the change in work hours. The criteria gives you objective information in which to support your respective proposal or option that is being put forth.
standards which is another name for criteria are needed to judge which options to keep and which to throw out. Examples of standards include an evaluation to determine if the option is workable. In positional bargaining negotiators often get carried away with the competition of winning and avoiding losing that they break into compromise but the compromise if they look at it further they will find that it’s not workable. Yes this does happen the negotiators simply get caught up in the competition and they don’t take time step back and ask themselves will how will this work what will we do who will do it when will get done what problems may we encounter. is it fair, is it affordable, is it practical, is it legal, is it acceptable. These are all standards that can be applied when evaluating an option. For instance you may find something that’s workable affordable practical but guess what is not legal. You may find something that is acceptable but it’s not affordable. You may find something that is affordable but not practical. You may find something that’s workable but not fair. When you evaluate an option if it passes the test if you will and the test are these items that I just mentioned, then the option will be translated into contract language and incorporated into the contractual document. This process may take more time than the traditional distributive bargaining process but the contract will have had its eyes dotted in its t’s crossed
unfortunately sometimes I get really excited about my topic and I will discuss items before I get to the specific area in a slide. Guess I still have to work on my self-discipline in that respect but it’s okay and I’m going to proceed with the 3 stage factor analysis that has a connection to evaluating the options. There are 3 stages one stage one is the feasibility factor stage II is the benefit factor and stage III is the acceptability factor. Each one of these will be discussed separately.
looking at this slide yes I have discussed this with you before but let’s highlighted anyone stage I the feasibility factor simple question is the option capable of being done or carried out. Desk are cells that one more top is the option capable of being done or carried out. I used a different term in a previous slide when we looked at standards/criteria. The questions I posed was this: is it workable? That essentially is what stage one is.
stage 2 the benefit factor, does the option satisfy import and interests? Now you notice the question is does it satisfy important interests. We can have all kinds of interest when it comes to a particular issue but typically in any issue there is a vital interest or a primary interest. My experience has been that if you satisfy the vital interests the probability is high that as you look down your list of interest if you were to rank them you will find that your secondary interest or tertiary interest have been met or nearly met. And if these secondary and tertiary interest have not been met they will be much more easier to satisfy once you’re able to satisfy the saddest of the primary and or vital interest. But sometimes it will require the parties to recognize that not every single interest can be satisfied but the primary or the vital interest must be satisfied. Which goes back then to the question does the options satisfy important interest. Which leads to another way of framing the question does the option harm any important interests. Look the bottom line is the you do not accept an option that does not satisfy your interests. You do not accept an option that does not satisfy your vital interests. If a negotiator remains connected to their interests and unconnected to winning the probability is substantially high that you will eventually agree to an option that satisfies your interest. That does not mean that there may not be some form of compromise but you are not compromising in a win lose matter you are compromising in a matter that you are 100% committed to and can live with that option.
stage III. It is the acceptability factor Question: will the option be received favorably by the constituents of all parties? If the answer is no or it is I’m not sure then it is imperative that the option be improved, modified or rejected. If after asking your self the question: Will the option be received favorably by the constituents of all parties, And your answer was no or I’m not sure then what you’re really saying to yourself as negotiator is idle believe that I have satisfied the interest of our party. As long as you have those thoughts then trust your gut instincts trust your intuition and go and do something to improve the option to wear your instinctive answer becomes yes they will accept this option.
Finally, what if an agreement can’t be reached? There is an acronym used in interest based bargaining. It is called Batna. It stands for, best alternative to a negotiated agreement. Batna is not to be confused with options. It represents the term alternative. The question becomes what is the best alternative. In the event that either party is unable to reach agreement with the other party on a particular issue or issues, what can that respective party do on their own that does not require an agreement with the other side. This is known as an alternative. each party must consider their own alternatives but also speculate on what the alternatives of the other side may be. Each party lists potential alternatives then selects among that list of alternatives the best alternative. Too often when I examined alternatives I found my alternatives not to be the best the matter which one I chose. By considering my alternatives this had an impact on my view of the options most often I would go back and review those options and they look so bad after all because my alternatives didn’t really look so good. In labor management relations you may say that the ultimate alternative war what many in labor consider their best alternative is to either engage in a strike, or if from management impose a lockout. While they may seem high and mighty and powerful they often have irreversible effects. I tried not to look at the final outcome of the whole contract as relates to alternatives but instead broke it down into alternatives for each issue that I was negotiating. For the same reason I said just a moment ago if I’m unable to reach an agreement because there are options that may not appear to satisfy my interest for that particular issue and then I look at what the alternatives are well I again may find that my alternatives are not that great which may then in turn inspire me to work harder to get an agreement by finding options that will satisfy the interest and make exercising an alternative unnecessary. in the case of the workers whose hours were changed to the 2 nd shift in order to begin work on improving the school there was an alternative. The 1 st alternative was to file an unfair labor practice. The 2 nd alternative was to file a grievance. The 3 rd alternative was to do nothing. And there were other alternatives but in this case the 1 st alternative the best alternative was to file an unfair labor practice and request that the respective Labor Relations Board reinstate the employees to their former status quo and order the district from meeting and negotiating. Now why wasn’t that alternative exercised. It was more beneficial to negotiate with the employer as long as the employer agreed to negotiate after they reinstated the employees back to the status quo. If they did not reinstate the status quo doing nothing was not an acceptable alternative. As a union representative it is not acceptable to do nothing under such circumstances. The 2 nd alternative filing agreements was weak because the contract at that time was somewhat silent and nonspecific on the employer’s rights and the worker’s rights. Therefore if a condition is changed and it has a generalized of fact on the bargaining unit the employer has an obligation to bargain. But they did not so therefore filing an unfair labor practice was the best alternative. It was reasonable to engage in negotiations because a serious problem did exist in the conditions at the school and everyone agreed. But negotiations assumes that the interests of both parties must be satisfied. Had there not been negotiations the work would have continued but there would have been an unfair labor practice charge filed. It is highly likely that that charge would’ve been sustained and the school district would have been ordered to reinstate the workers to their former hours. Now you have a dilemma it is highly probable that the work would have not been completed which would have been left in a suspended state. This would not be good for the students, faculty, staff, or school board. And selfishly and admittedly it would not have been good for me as their advocate. Sometimes his negotiator you can stare something in the phase and you know something needs to be done and while what the district did was not right does not mean that it is fair to everybody to do nothing. And as it turns out an agreement was reached and all such parties were satisfied. But knowing my that and knowing that reaching an agreement was better than using my back turned a potentially catastrophic situation into a very positive outcome. So there you have it you have just had a full explanation of interest-based negotiations. Now you know what an issue is how to frame an issue what an interested is the difference between a position and an interest you know what an option is you know what standards and criteria are and you now know what Batna is as well. I hope that you have found this particular lecture of interest and that the example that I used throughout the lesson lecture has assisted you in understanding interest-based negotiations. Thank you for your patience and your interest and I look forward to working with you further throughout the semester.
![Interest-Based Terms ,[object Object],[object Object],[object Object]](data:image/gif;base64,R0lGODlhAQABAIAAAAAAAP///yH5BAEAAAAALAAAAAABAAEAAAIBRAA7)