Key negotiation skills for collective bargaining

02 August 2023

Felicity Steadman

Felicity Steadman is co-founder and Director of Conflict Dynamics and Chairperson of the Conflict Dynamics Empowerment TrustShe has been a professional in the field of dispute resolution since 1989, 'the IMSSA' days of ADR in South Africa. She co-designed the training materials for the first cohort of CCMA commissions and was herself a senior CCMA commissioner. She was trained and accredited as a commercial mediator by the London-based Centre for Effective Dispute Resolution (CEDR) in 2003, with whom she is actively engaged as Head of Faculty of mediator training. Felicity is certified by the International Mediation Institute, registered with the Civil Mediation Council in the UK, and is on the CEDR Chambers and Oxford Mediation panel of mediators. She currently works as a full-time mediator and maintains a steady caseload. She mediates a wide variety of disputes including employment and workplace, information, communications and technology, right of way, trusts, wills and probate, financial services, and partnership and shareholder.

John Brand

John Brand is a lawyer, retired consultant and ADR specialist at Bowmans in South Africa, mediator, trainer, and retired director and shareholder of Conflict Dynamics. He serves on the ADR Advisory Committee of the South African Law Reform Commission. John is an IMI Certified Mediator and a member of IMI’s Independent Standards Commission and a CEDR-accredited mediator. He has specialised in dispute resolution and the training of negotiators, mediators, and arbitrators, has written extensively in journals and other publications, and co-authored “Commercial Mediation – a User’s Guide” and “Labour Dispute Resolution” both published by Juta. Over the past 30 years, he has arbitrated and mediated many large commercial and employment disputes and he regularly facilitated negotiation, strategic planning, and transformation processes. He was a member of the team of international experts appointed by the International Labour Organisation (ILO) to design mediation training for developing countries and he regularly trained mediators from countries in Africa, Asia, Eastern Europe, and South America. The ILO also commissioned John to design training material and to train parties and trainers from countries across the world in mutual gain negotiation. This training material has been translated into French, Portuguese, and Arabic and is used extensively throughout the world.

The collective bargaining season, often referred to as ‘strike season’ because of the high incidence of strike action which accompanies it, is once again upon us. It is therefore worth reflecting at this time on what key negotiation skills could make deadlock and strike action less likely.

There are several key skills associated with preparation.

As Benjamin Franklin said: “by failing to prepare, you are preparing to fail”.

Engagement with mandators

This will involve discussion between the negotiators and the people who give them a mandate about the economic context in which the negotiations are taking place and about the real interests, fears, and concerns that lie behind the positions that will be taken in the negotiations. Mandate givers should also consider the interests, fears, and concerns of the other parties in the negotiation. Deadlock and strike action is assured if the negotiators simply take their mandate givers' positions to the negotiation table. The bargaining range and the zone of potential agreement must be discussed in relation to the best and worst alternatives to agreement. This enables the negotiators to consider a variety of options for negotiation, and it gives the negotiators the flexibility they need at the negotiation table.

Risk analysis  

Many strikes could be avoided if parties did a thorough risk analysis during their preparation for collective bargaining. They need to scenario plan and, as accurately as possible, assess the likelihood of strike action in the event of deadlock. They also need to estimate how long a strike might last and what it might cost them. For example, employers lose production and workers lose wages at the rate of 2% of their annual wages per week of strike action. Without this, it is very difficult to judge whether or not to accept an offer, which may on the face of it appear to be unacceptable, yet, on sound analysis, may be better than the cost of strike action. It helps the parties to be realistic about their own proposals and about the reasonableness of other parties’ proposals.

There are several skills associated with building effective negotiation relationships and communicating across the bargaining table.

Empathy and assertiveness

This is the negotiator’s ability to show empathy and to work collaboratively with their counterpart, while also being able to be assertive. This is related to the idea of working with the other party to create value and to generate options for negotiation before claiming value in the bargaining stages of the process. If negotiation is only about claiming, then deadlock is more likely to occur

Building rapport

Negotiators need to be able to build rapport with other negotiation parties, their team members, and with their mandate givers. Rapport is established by a mix of competence and warmth and is enhanced when communication is frequent, consistent, and credible. Without rapport, negotiators are less likely to be trusted and it will not be possible to influence and persuade people.  Effective listening and sound communication skills greatly help in building rapport.

Listening and other communication skills

In order to engage effectively with mandate givers, negotiation team members, and with other parties, negotiators need to have sophisticated listening skills. Firstly, this entails being able to actually hear and absorb what is being said so that the negotiator can deal with it properly. The second is to make speakers believe that they are being heard. Some people are good at giving the impression that they are listening but without actually hearing what is being said. This may for example be because they are too busy thinking about what they want to say next. Other people hear and absorb what is being said but fail to give the impression that they are listening. It is vital for negotiators to have the skill to be able to simultaneously truly hear what is being said and to make speakers feel that they are being heard. They do this by using skills such as reflecting, paraphrasing, and summarizing as well as asking questions.

Emotional intelligence

Emotional intelligence is the ability of negotiators to appreciate the impact of emotion on negotiation. This requires them to not only recognise and manage the emotion of others but to do the same in relation to their own emotion. Collective bargaining is often accompanied by high levels of emotion and anger, and negotiators need to have the skills necessary to recognise what drives certain behaviours, and to know how to manage those behaviours.

Skills Package

It can be seen from the above that negotiators require fairly varied and sophisticated skills to be effective. The skills referred to here are just some of the key skills needed by successful negotiators if they wish to achieve mutual gain outcomes in upcoming collective bargaining. Whilst some of these skills come naturally to some people, most people need to carefully cultivate and then practice them regularly over time in order to become successful negotiators.

Conflict Dynamics can help in this regard by working with negotiation teams at the preparation stages of the negotiation, by teaching negotiation teams how to conduct their negotiations in an effective manner, or by facilitating negotiation for the parties.