Chapter 5: Rights-Based Negotiation

As with Chapter 4, Chapter 5 focuses on an adversarial approach to conflict resolution (CR), this time focusing on rights, rather than power. When students think of rights-based CR, they may assume that it involves lawyers, judges, arbitrators, or other legal professionals. While rights-based CR could involve legal professionals, rights-based CR could include people of any background. When people debate an issue, they are often using rights-based arguments. When people defend a position, they are often using rights-based arguments.

You could begin the class by reviewing the quotation at the start of this chapter. Although it is humorous, it also makes a point about righteous indignation. Sometimes, when we feel we have been wronged, we assert our rights without truly knowing what our rights are—or whether the other person also has rights to be respected (or at least considered).

What Is Rights-Based Negotiation

This section provides a broad definition of rights-based negotiation (RBN). RBN negotiation is not limited to arguing about legal rights (e.g., my right to self-determination vs. another person’s right to safety). Although the parties could be debating legal rights, they could also be debating facts, appropriateness, or fairness.

Pros and Cons of Rights-Based Negotiation

For this section, you could have students compare power-based negotiation with RBN. Both of them are adversarial, win-lose approaches, meaning that one of the cons of both approaches is that they tend to hurt relationships between parties. They also stifle creativity and joint problem solving. However, rights-based processes may be superior to power-based because they can “civilize” the process (replace violence with civil discussion). To some extent, the pros and cons of RBN depends on how RBN is implemented. RBN could be implemented in a relatively civil manner; it could also be implemented in a highly contentious, aggressive, or brutal manner.

Bargaining in the Shadow of Other Rights-Based Processes

Mnookin and Kornhauser (1979) famously stated that all negotiations take place in the shadow of the law. This means that negotiators need to consider what would happen if negotiations failed and the parties went to court for a decision based on the law. Note that sometimes the influential capacity of the shadow of the law is overstated; while the law can influence decisions, parties are also free to negotiate outside the law (coming up with creative solutions that may even be better than what a court is likely to decide).

Note also that courts are not the only place where the shadow of the law may be cast. Rights-based decisions may also occur within social agencies, families, cultural communities, and other social organizations. Whenever a social system has rules, norms, or traditions, these “rights” may affect the negotiation process.

Negotiating Fact-Based Conflicts

Fact-based conflicts are disputes over what happened in the past. When people disagree about the past, it may be helpful to assess why they have different views or beliefs, for instance, were they relying on different facts, interpreting their observations differently, or was there an error in communication? This section highlights the use of evidence to try to prove one’s case (e.g., what types of evidence are more credible or convincing). If the parties can have a rational discussion of the evidence, this approach may produce an agreement. Unfortunately, this approach does not accommodate other factors that are common in conflict situations—strong emotions, perceptual biases, desire to save face (avoid admitting errors), and so on.

Negotiating Conflicts about Appropriateness or Fairness

This section highlights conflicts over what is appropriate or fair. Under RBN, people may use laws and legal precedent to support their cases. Help students identify specific sources of law that may be relevant to their type of work (international declarations, national or state constitutions, statutes, cases, agency policies, religious rules or commandments, cultural norms, etc.; reference librarians from your college or university may be helpful in identifying laws related to specific topics). Also, help students understand the importance of identifying laws or rights for both sides of the case. In debating, it is important to understand the other person’s case and arguments, not just your own.

The strategy of identifying and applying objective criteria is one of the more challenging ones throughout this textbook. Although some CR theorists discuss objective criteria as an interest-based strategy, it actually originates as a rights-based strategy. When people cannot decide how to deal with a conflict, they may try to identify factors or criteria that can help them come to a rational decision. In some situations, the objective criteria are relatively obvious. If you and your siblings were selling the family home but could not agree upon a list price, you could look at sales of similar homes on your neighborhood. But what if you and a work colleague were trying to determine whether your agency should switch from in-person therapy to online therapy for teenagers with eating disorders. What could you use for objective criteria to help determine which approach is “better”? Providing students with lots of examples tends to help them become more comfortable with identifying objective criteria in other situations (because each situation is unique, students need to understand the process of identifying objective criteria; they can’t just transpose an example from class to new case situations).

Beyond Rights-Based Negotiation

RBNcan be very alluring: Why wouldn’t it be appropriate to determine conflicts based on people’s rights? As noted earlier, one of the main limitations of RBN is that it tends to produce adversarial relations. This section highlights alternatives to RBN. The alternatives to rights-based strategies in this section refer back to strategies in prior chapters (e.g., mindfulness in Chapter 1) and future chapters (e.g., advocacy in Chapter 10). Note also, even when people use rights-based strategies, other strategies could be used in combination (e.g., developing an agreement about how to engage in a constructive dialogue about rights involves both dialogical and rights-based strategies).

Discussion Questions and Exercises

1. Past or Future [5 to 10minutes]

For this exercise, you could go through the first example with the whole class and then have students work through the other example in small groups.The answer to (a) is “Factual,” because they are discussing an issue of what has happened (a past event—whether or not a staff member posted photos on Facebook).

2. Just the Facts [10 minutes]

For example (a), the parties could look at Honi’s Facebook page (with her permission). This would be the most direct evidence, even though it is not perfect. Honi might have deleted the photos. Other possible types of evidence are hearsay evidence (another client told him that Honi posted the photos), expert evidence (a person who conducts a lie detection test with Honi), or a copy of direct evidence (someone presents a screenshot of Honi’s Facebook page). If the parties can work through this conflict informally, that is probable the best solution. Other alternatives include filing a grievance with the agency (and having the agency’s director conduct an investigation), going to court, or filing a complaint with Honi’s licensing board. These other processes can be more expensive, more time-consuming, and more adversarial.

3. Just Justice [5 minutes]

Example (d) is a rights-based question. Relevant laws and policies include the federal Americans with Disabilities Act, state education laws, and school board policies. Frank’s strongest argument might come under the Americans with Disabilities Act, which prohibits discrimination based on disabilities (and takes precedence over state and local laws and regulations). It might be helpful for the parties to engage an attorney for legal advice (e.g., both hire the same person to provide them with an opinion). This would be cheaper than litigating in court or filing a formal grievance. It could also help the parties maintain a positive working relationship. Alternatively, they could go to mediation and use interest-based mediation or some other collaborative model to try to reach a creative solution (win-win).

4. Objective Criteria [20minutes]

As noted earlier, establishing objective criteria is one of the most challenging strategies that is presented in this chapter. You may need to spend significant time helping students through this process. You could go through one example together and then assign the others to pairs or individual students. For example (a), the parties could agree to a trial period of supervised supervision. If Mabel is able to control her anger and use appropriate discipline during this period (say 10 sessions at 1 hour each), then she will have proved that she can care for him. The parties could identify objective measures defining what constitutes physical abuse (e.g., punching, slapping, spanking, kicking, scratching, and hair pulling) and what constitutes appropriate discipline (e.g., redirecting, providing consequences, and giving child a time out). The specific examples may relate to actual concerns from the case (e.g., if the main concern was that the mother burned the child with a cigarette, then this issue would need to be addressed when developing objective criteria). Another way to look at this case would be to develop a set of criteria to evaluate how well Mabel controls her anger.

5. Rights and Resources [5 minutes]

Sources of rights may include a “patient’s bill of rights,” which could be found in federal law, agency policy, or the contracts and policies of the organization that is funding the eating disorder clinic. Melinda might also look at the codes of ethics for the professionals who are working at the clinic, as many codes of ethics include ethical obligations to provide clients with access to needed services. One of the problems of a rights-based approach in this case is that even if Denise has a right to more immediate services, the agency does not have sufficient staff or beds. A problem-solving approach may be better. Perhaps another agency (or hospital) can accommodate Denise, or perhaps the agency can provide Melinda and Denise with support on an outpatient basis until a bed is ready. Rights-based processes may miss opportunities for creative problem solving.

Role-Play 5.1:“Sedation Squabble”

[30 minutes]

You may prepare students for this role-play by helping them work through the questions in Box 5.1. Preparation is vital to winning a debate. In addition to preparing for their own best arguments, each party should think about the other party’s best arguments, and what might be an effective response.

Role-Play 5.2:“Immigration Imbroglio”

[30 minutes]

To prepare for this role-play, parties should try to find actual facts and strong evidence (e.g., scholarly research that supports his or her case). Encourage students to also be creative (e.g., preparing a friend to act as an expert witness or showing part of a documentary film to support his or her case). Also, remind students to consider factors such as likeability that can add to the credibility of their arguments.

Role-Play 5.3: “Joint Counseling Debate”

[30 minutes]

Before students start working on their arguments for this debate, have them discuss the format and guidelines for the role-play (Box II.3 – Negotiation Planning Guide). The guidelines will affect what they present, and how (e.g., how much time, who will make the decision, and on what basis), and what types of evidence each party may provide (documentary, direct witnesses, hearsay witnesses, expert witnesses, no witnesses). Invite students to focus on just one or two rights-based strategies at a time. Although this is a rights-based exercise, you could also invite students to reflect on whether and how each side tried to use power.

Role-Play 5.4:“What Do I Get From Role-Playing?”

[30 minutes]

This role-play is based on an actual situation that occurred in a class. You may also want to turn issues from your own class into role-plays. This brings the issues close to home, which can be an effectiveway to bring authenticity to the role-plays. This also needs to be done with great sensitivity (e.g., to avoid placing some people in awkward or embarrassing situations or to avoid abuse of your power as instructor). When debriefing the role-play, invite students to reflect on both the strengths and limitations of their process. Often, students conclude that rights-based debates and processes are not the best ways to deal with conflict (which then encourages students to explore interest-based and other collaborative approaches to CR).