Good faith and flexibility cover many facets. By good faith is meant an honest desire to reach agreement on the differences which exist through compromise and a realization that the agreement thus reached should be fair and reasonable for both sides, if the agreement is to endure. A negotiation must not be viewed as an adversary proceeding, such as a case in court, where one party wins and the other loses.
The existence or non-existence of good faith is sometimes difficult to determine with assurance, but there will come a time when a good negotiator will be able to tell if this essential element is missing. The second essential element of flexibility is the heart of a negotiation. In every negotiation it must be assumed”unless you are dealing with juveniles”that your opposite numbers will always table maximum positions first. Equally important, it must be assumed”unless you are dealing with fools”that your opposite numbers have not disclosed their minimum positions in any manner.
The challenge to the able negotiator, therefore, is to start with the tabled maximum positions and by skillfully using all of the tools in his kit, reach the essence or basic minimum positions upon which an agreement can and should be concluded. If a negotiator is unable to obtain any concessions whatsoever from the tabled positions, then either the element of flexibility is missing or the negotiator is inept, in which event you find yourself with no negotiation at all.
As in the case of good faith, it may be difficult and time consuming to convince yourself that what you are facing is a set of non-negotiable demands, but here again a good negotiator will see the handwriting on the wall and eventually realize just the situation he is in. The crucial and delicate decision to be made by the negotiator is”are his opponents still negotiating for advantage or is their position truly flexible, as it appears to be?
Thus, it is somewhat naive to take the position that you will not negotiate on known differences until the other side has given assurances, satisfactory to you, and prior to the negotiations, that the negotiable positions are such that an agreement can be reached. If the negotiator eventually concludes that these essential elements do not exist, he must proceed to make the record clear for all to see and suspend the so-called negotiations, in a manner which unmistakably places the onus on the non-negotiating party.