Principled negotiation: a new tool for case advocacy.

Lens, Vicki

More than other professions, social work looks outward, drawing from the environment necessary resources for clients. The person-in-environment framework at the core of social work requires practice skills that address that environment. Ethical principles that require social workers to advocate for the fair allocation of adequate resources also require specific practice modalities.

Brokering, case advocacy, and cause advocacy are used to translate social work values and principles into practice. Brokering means "help[ing] a person or family get needed services" (Johnson, 1995, p. 316). Case advocacy is a way to "obtain resources or services for clients that would not otherwise be provided" (Hepworth & Larsen, 1993, p. 569; McGowan, 1987). Cause or social advocacy attempts to "effect changes in polices, practices and laws that affect all people in a specific class or group" (Hepworth & Larsen, p. 503).

All of these activities--brokering and case and cause advocacy--are usually necessary because of some type of dispute. One party, such as a case worker from a government agency, exercises her discretion to deny a client a resource or service. Or a law or systemwide policy offends or hurts a vulnerable population. What occurs next is often negotiation, a dance of conversation between two opposing parties that may involve trade-offs, pressure, and accommodation. As Biklen (1983) emphasized, "most people and groups resolve their conflicts through ad hoc negotiations" (p. 220). In short, social workers spend much of their time negotiating to resolve disputes between clients and their environment.

This article offers concrete guidance on the art of negotiating, focusing primarily on negotiations in case advocacy, although its application across the micro and macro spectrum is also discussed. Negotiating is particularly well suited to social workers. As Schneider and Lester (2001) observed, social workers are often uncomfortable with an adversarial approach, viewing it as too confrontational, with the potential for ruining relationships with other professionals and agencies. Effective negotiating, on the other hand, pays equal attention to relationships and substance and provides a framework for working out disagreements where both parties can feel they have won. Negotiating also fits naturally with social work skills. As one prominent mediator said, "negotiations are 50% psychology" (Cleary, 2001, p. 126). It requires the ability to spot the nuances and subtexts of relationships and conversations, skills in which social workers are particularly well versed.

Notwithstanding this natural fit between social work and negotiating, the skills required often are associated more with the professions of law and business than social work. I thus draw from the well-developed professional literature from these fields, and primarily from a form of negotiating called "principled negotiation" from the Harvard Negotiation Project at Harvard University (Fisher, Ury, & Patton, 1991). This article demonstrates how these principles, a staple of the business and legal world, can be effectively applied in social work practice.

Negotiation as a Tool for Case Advocacy

Traditional case advocacy encompasses a variety of tactical and substantive techniques.

One basic paralegal textbook lists several commonly used techniques that will likely sound familiar to social workers who have advocated for clients before government agencies (Statsky, 1993). Tactical approaches include being a buddy, where the advocate ingratiates herself with the agency worker, establishing a personal connection to encourage the caseworker to reciprocate by authorizing services. Or the social worker may use anger or hostility, indignantly demanding that the agency do what is required. Another very common approach is to preach, lecturing the worker on her responsibilities. Other times an advocate climbs the chain of command by asking to speak to the worker's supervisor.

Such strategic techniques are typically combined with more substantive ones. The advocate may argue that agency precedent requires that the service be authorized or, conversely, that the case is unique and should be an exception to agency rules. Likewise, the advocate may ask the agency to justify its action by citing a specific rule, of the advocate may cite the rule and argue that it applies.

As these examples demonstrate, available strategies and techniques are numerous. Some techniques may never be appropriate, whereas others are more likely to be effective. What tactics work best, and in what combination, may depend on the personalities and individual circumstances. In other words, advocacy can be a haphazard experience with no clear rules.

A different and more systematic approach acknowledges that case advocacy involves negotiations to resolve a conflict between two parties. Negotiating can be done well or poorly and, like other skills, must be learned. Although a negotiation may involve several of the techniques described, the choice of technique is not random. It is guided by the systematic, deliberate, and uniform application of negotiating principles designed to result in a solution that accommodates the interests of both parties.

Principled negotiation, a form of negotiation developed by Roger Fisher and William Ury and used widely in the business and legal world, is especially consonant with the value base of social work. Principled negotiation culminates in a "wise agreement ... which meets the legitimate interests of each side to the extent possible, resolves conflicting interests fairly, is durable, and takes community interests into account" (Fisher et al., 1991, p. 4). Principled negotiation differs from the traditional "hard" approach, which views conflicts as a win--lose situation. In positional or hard negotiating, the negotiator attempts to win at all costs by using hard-driven competitive tactics to wear down the adversary. Principled negotiators, however, do not recoil at the first sign of conflict or use "soft" negotiating techniques that can result in concessions later regretted. The), do not abdicate their role as an advocate to avoid conflict and maintain relationships at any cost. (See Table 1 for a comparison of hard, soft, and principled negotiations).

Principled negotiation, as outlined by Fisher and colleagues (1991), rests on four main principles: separate the person from the problem, focus on interests not positions, invent options for mutual gain, and insist on using objective criteria. Each of these principles is explained and applied to a case example.

Applying Principled Negotiation to a Case Example

Ms. S is a 95-year-old woman suffering from medical ailments. Although her medical condition is stable, she requires assistance with nearly all other daily activities. She is also mentally confused and cannot be left alone at night because she tends to awaken and wander.

Ms. S lives in her daughter Mary and her son-in-law's house. For the past three years, she has been receiving 24-hour split-shift care by a personal care aide. This has worked well for the family because the aide remains awake at night caring for Ms. S. Recently, the Department of Social Services (DSS) decided to reduce assistance to a 24-hour live-in aide. There is no place in the home for a sleep-in aide to sleep.

As a geriatric social worker assisting the family, you have decided to challenge the DSS's decision.

Separate the Person from the Problem

This principle requires the negotiator to acknowledge an adversary's humanness and that emotions can become entangled with the problem, creating misunderstandings and hurt feelings that can impede its resolution. It requires the negotiator to refrain from placing blame and instead create a cooperative relationship at the outset.

In the case example, one of the first mistakes the social worker may make is to assume that the DSS worker is an unfair and unfeeling bureaucrat. She or he may blame the agency worker, believing that a truly caring and concerned person would not reduce services to an old and infirm woman. The social worker may think that the most effective approach is to come on strong by immediately challenging the agency worker. In fact, the better approach, and a way of separating the person from the problem, is for the social worker to assume a partnership in search of a solution, rather than an adversarial relationship.

Unhelpful: Your decision to reduce services demonstrates the agency's incompetence and insensitivity to the elderly.

Helpful: My client is very ill and in need of continued services. How do you think we can help her?

To be sure, the agency worker may still respond in an angry and hostile manner. And as the negotiation proceeds, both parties' anger and hostility may increase. Separating the person from the problem does not mean avoiding these emotions, but allowing them to run their course so they do not interfere with reaching an agreement. The social worker encourages the expression of emotions (and monitors her or his own) and does not respond defensively to a display of harsh emotions. Instead, the social worker sits quietly without asking questions or responding until the agency worker is finished letting off steam. The social worker then gently nudges the conversation back to a discussion of the problem.

Agency worker: You are making my job more difficult and I am not being paid enough to spend my time talking to you about this case.

Unhelpful: Don't speak to me in such a nasty manner, and stop interrupting me.

Helpful. I am also feeling upset, but perhaps we can try and find a solution together.

Another key to maintaining the requisite separation between the person and the problem is a clear flow of communication. Miscommunication and faulty misperceptions can lead to anger and hostility. Failing to actively listen because the advocate is too busy formulating a response is also a sure route to misunderstanding. "The cheapest concession you can make to the other side is to let them know they have been heard" (Fisher et al., 1991, p. 34). This can be done by simply restating what the other side says instead of the social worker immediately reiterating her position. Instead the social worker should ask substantive questions about the agency's position. "Statements generate resistance, whereas questions generate answers." (Fisher et al., p. 11). Follow-up questions also reinforce that the social worker is listening to the agency's explanation.

Agency worker: This decision is based on fiscal limits on what can be spent on home health aids.

Unhelpful: Where you get the money is not my concern. The law requires the authorization of 24-hour care in such situations.

Helpful: Let me make sure that I understand what you are saying. The agency has been forced to make these decisions based on fiscal concerns because of a budget shortfall. Is this a problem that has been occurring for a while, of is it a new policy?

The social worker should also avoid using the accusatory "you", and instead rely on "I."

Agency worker: I am too busy to help you.

Unhelpful: You are not being fair.

Helpful: I feel that I am being treated unfairly here.

Focus on Interests not Positions

This principle requires the negotiator to understand that behind the problem is a set of interests, or "underlying needs, desires, concerns and fears" (Fisher et al., 1991, p. 40). The negotiator's task is to figure out these interests, address them, and look for interests that may coincide. Asking the agency worker questions about her concerns, as described, is one approach. The social worker should also put herself in the worker's shoes, asking why the agency made the decision.

The agency usually has multiple interests, and some may coincide with the client's interests. The worker may be guarding the agency's coffers, but may also have an interest in ensuring the client's health (or at the very least ensuring that no harm comes to clients that could reflect poorly on the agency). Finding these shared interests is as important as figuring out opposing interests, because they may form the basis of an agreement.

While looking for shared interests, the social worker should not act too conciliatory. The client's interests should be clearly and forcefully stated. To maintain a cooperative atmosphere, the social worker should also explain the problem before suggesting a solution so that its reasonableness is more obvious.

Agency worker: The agency does not have the funds to authorize services for every case. A 24-hour live-in aide is sufficient for your client's needs.

Unhelpful: I understand completely why the agency can't authorize services. Helpful: Ms. S is infirm and tends to wander at night, placing her in danger. Only last week she was found wandering outside on the one night the aide didn't show. I understand the agency has limited funds, but I'm sure if it was your mother, you would want her to be safe. She needs a split shift so that the aide is awake and vigilant during the night, her most vulnerable time. There is also nowhere for a live-in aide to sleep. This means Ms. S will be forced into an expensive nursing home if split-shift coverage is denied.

Instead of reinforcing the areas of conflict, the social worker should highlight where the client's and agency's interest may coincide.

Agency worker: I must tell you again the agency does not have unlimited funds.

Unhelpful: Is saving money the only thing you care about?

Helpful: As I understand it, your interest as a government agency is to be fiscally cautious while also helping people. But surely you are not saying that our shared interest in the client's safety is worth less than the agency's fiscal concerns. Perhaps there is a way we could work together to get the agency to provide appropriate coverage. If we could figure this out, it will also avoid placement in a nursing home, which will cost the agency even more.

This stage of the negotiations requires a delicate balancing act between asserting the client's interest while being personally supportive of the agency worker. This combination of assertiveness and support can create a state of cognitive dissonance as the agency worker attempts to reconcile such expressions of support with the agency's position. Because most people find such a contradiction uncomfortable, the agency worker is likely to join with the social worker to find a solution. This is exactly what the social worker wants.

Invent Options for Mutual Gain

Often negotiators become wedded to their position, believing only their solution will work. This can stifle creativity. Instead, the negotiator should brainstorm multiple solutions, with the interests of the opposing party in mind. As Fisher and colleagues (1991) explained "people see their job as narrowing the gap between positions, not broadening the options available" (pp. 58-59). For social workers there is the added element of the rightness of our position, especially when representing vulnerable clients. It is hard to see the other side when our side appears so just and compassionate. However, the failure to do so could leave our clients worse off.

The best time to develop these options is before the negotiation. The social worker should consider what alternatives are available if the agency does not reverse its decision. Knowing what Fisher and colleagues (1991) described as the BANTA (Best Alternative to a Negotiated Agreement) lets the social worker know how far she can push. Brainstorming beforehand allows for creative thinking without the pressure of negotiations.

A key technique in brainstorming is the willingness to consider even the most unlikely options. Here, the social worker might consider another configuration of hours besides the split shift that would save money while still providing sufficient coverage. Perhaps the client's daughter could assume responsibility for a certain number of hours in exchange for the agency ensuring night coverage. Or supplemental resources may be available in the community.

It is not necessary to offer these options unless and until the best option appears unattainable during negotiations. But it is important to negotiate in a sprit of openness and flexibility. At certain junctures in the negotiation it is helpful for the advocate to leave room for alternative solutions, rather than repeating her position. In the case example, the social worker used the phrase "appropriate coverage" rather than reiterating the demand for split-shift coverage. The social worker thus reinforced that she and the agency worker were working together to find an answer to the problem, making a solution more likely.

Insist on Using Objective Criteria

This principle recognizes that disputes cannot be resolved by a test of wills. It requires that objective criteria, including past precedents, community practice, and other scientifically based objective standards or knowledge, form the basis of any negotiation. The negotiator's task is to continually monitor the negotiations and ensure that "principle, not pressure," is the guiding force (Fisher et al., 1991, p. 83).

This requires the social worker to be fully prepared and knowledgeable about all aspects of the client's case, including the specific facts, the relevant law, and agency guidelines and practices. Perceptions of fairness should also play a role, especially in our culture where a shared moral understanding exists, even between opposing parties, that agreements must be fair (Cohen, 1980). The social worker should negotiate from an objective, on the merits stance and be ready to shift tactics to emphasize these objective criteria if the negotiation becomes more about the people doing the negotiating than the problem.

Agency worker: I know what I am doing, why are you questioning my decision?

Unhelpful: Because you don't know what you are doing and are unaware of the law.

Helpful: I just want to make sure that the rules are being followed here, and that my client is being treated fairly. Please correct me if I am wrong, but it is my understanding that the regulations require a split shift when patients such as Ms. S cannot perform daily activities and their safety is jeopardized. Agency precedent also requires that the services be authorized.

Negotiating on the merits is especially important when there is a power imbalance. This is typically the case in social work advocacy where our clients come from vulnerable populations dependent on powerful government bureaucracies. Often these bureaucracies "can develop introspective, defensive cultures or behaviors" (Bateman, 2000, p. 100), making negotiations more difficult. An agency worker may refuse to talk or have a take it of leave it attitude. One approach in such situations is for the social worker to invite criticism and even ask the agency for guidance.

Agency worker: The decision cannot be reversed so there is no point in discussing this any further.

Helpful: What do you think my client should do? Do you think it would be better for my client to be in a nursing home? Is that what you would do in this situation?

Because people are uncomfortable with silence, especially when their position is weak, pausing after each question to give time for a response may encourage the worker to talk. The social worker should keep in mind that the purpose is not to concede the case and avoid conflict. Once the worker is engaged, the social worker can then negotiate more strenuously by assertively stating her client's interest and the merits of the case.

In sum, using the four principles of principled negotiation can impart a sense of power to the social worker. There are many sources of power, and an agency's authority to refuse services is one. But there is also power in having expertise and knowledge, good communication and listening skills, a persuasive manner, and a morally good cause (Cohen, 1980). Patience and persistence are also necessary, as is a well-researched case to support one's position.

Equally important, however, is knowing when not to negotiate. The person with whom one negotiates must have the power or authority to make the decision. If not, it is more efficient and effective to go up the chain of command and negotiate with the person who does. Also, some disputes can only be resolved using formal dispute mechanisms, such as administrative fair hearings or litigation. If an agency has explicitly adopted a practice that violates the law (for example, by refusing to provide applications to clients) or intentionally disqualifies clients for benefits (for example, by routinely and explicitly applying a regulation in a way that violates federal law), negotiating with the worker may be futile and a waste of time. (Although talking with the worker can be a way of gathering evidence to prepare better for a hearing or court litigation). In the face of widespread and institutionalized illegal practices, social workers have to resort to more direct conflict, including administrative appeals and class action litigation (Bateman, 2000).

When negotiation is an option, some social workers may feel uncomfortable with viewing the government bureaucracy as a partner in search of a mutually beneficial solution, rather than an adversary. This ma), be especially true in the current political climate, in which government agencies are required to implement harsh rules and regulations. Moreover, since the number of social workers employed by government agencies is very small (Gibelman, 1999), social workers may be negotiating with agency workers who do not necessarily share their goals.

However, government agencies are often the last, and often only, resource for our clients. Social workers are also likely to have ongoing relationships with such agencies. Building a cooperative relationship is thus essential. Principled negotiation can be a useful tool that encourages two sides with sometimes different objectives to find common ground.

Applying Negotiation Principles to Other Contexts

Negotiating disputes using the principles herein provides a helpful alternative that can be used in many contexts and across many populations, public and private. Examples include the child welfare system, government assistance programs, nonprofit agencies that allocate resources and services to clients, and managed care companies (Ezell, 1991, 1994; Herbert & Mould, 1992; Litzelfelner & Petr, 1997).

Negotiation can also be used across the micro to macro spectrum. Although a case advocacy example was used in this article, the principles can be effectively applied to problem solving, brokering, and on the other end of the spectrum, cause advocacy.

Problem solving involves identifying and analyzing a problem, brainstorming solutions, and implementing options (Hepworth, Rooney, & Larsen, 1997). It also involves helping clients master these skills and apply them on their own. The four principles of principled negotiation can be used as a framework. Principled negotiation views problem solving in an objective, creative, and flexible way that allows all options to be explored while also considering people's needs and concerns. Role playing principled negotiation responses to scenarios clients are likely to face as they problem solve on their own can be a helpful modeling tool.

Principled negotiation principles also can be used when brokering services. Brokering includes "assessing the situation, knowing the alternative resources, preparing and counseling the person, contacting the appropriate service, and assuring that the client gets to the help and uses it" (Johnson, 1995, p. 316). It is often the step before case advocacy; when the brokering approach fails, case advocacy, which requires more force and persuasion, is often used. Approaching an agency in the spirit of principled negotiation may avert a negative outcome. Agency workers who are approached as partners in the helping process, rather than adversaries, and who are presented with a request for services that are stated clearly, fairly, and objectively, are more likely to respond positively. Knowing the options before making a request for services allows for more flexibility. Finally, a principled negotiation approach to brokering sets the stage for a more productive tone should brokering fail and case advocacy is needed.

Principled negotiation also can be helpful in cause advocacy. In contrast to case advocacy which involves more private and specific disputes, cause advocacy occurs in the public arena of law making and governing and incorporates such tactics as lobbying and applying pressure tactics to government officials. Whereas negotiation is different from lobbying and pressuring, many of the same principles apply. Biklen (1983) suggested negotiation techniques that closely parallel the principled negotiation approach, including understanding the art of compromising effectively, learning how to communicate compellingly, avoiding personal attacks, and controlling emotions in the face of verbal outbursts. To be sure, because cause advocacy is often done in public view it may not be easy to maintain the spirit of partnership and openness that characterizes principled negotiations. Other tactics may also be needed to effectively function in a polarized and partisan political arena. However, the principled negotiations approach can provide some useful guiding principles for cause advocacy.

In summary, negotiating is as much a part of the repertoire of social work as other skills and techniques designed to facilitate change on the individual, group, and systems levels. Principled negotiation in particular is especially consonant with the value base of social work because of its emphasis on the importance of ongoing relationships while working toward a just result. By emphasizing fairness, equity, and community, principled negotiations can be a helpful guide to social workers while also enhancing and supplementing other social work practice skills.

Table 1

Comparing Different Styles of Negotiation

Hard Soft

Participants are adversaries. Participants are friends.
There is only one solution to the The solution is the one the other
problem. side will accept most readily.
The goal is winning at any cost. The goal is agreement that may
 sometimes involve one-sided
 losses.
Threats and personal attacks are Conciliatory and friendly
appropriate. gestures and concessions are
 frequently used.
Distrust and suspicion is assumed. Trust is assumed.
Misleading and distorting positions Positions are changed easily and
are appropriate. often to satisfy the other party.
Compromise is never acceptable. Concessions are made to encourage
 a smooth relationship and to
 avoid conflict.

Hard Principled

Participants are adversaries. Participants are problem solvers.
There is only one solution to the There are several solutions to
problem. the problem.
The goal is winning at any cost. The goal is reaching a mutually
 satisfactory agreement.
Threats and personal attacks are The problem, not the people, is
appropriate. the focus.
Distrust and suspicion is assumed. Proceed independent of trust.
Misleading and distorting positions Positions are based on fair and
are appropriate. objective standards.
Compromise is never acceptable. Compromise is appropriate when
 based on principle, not pressure.

Adapted from Fisher, R., Ury, W., & Patton, B. (1991). Getting to yes.
Negotiating agreement without giving in (pp. 9, 13). New York:
Penguin Books.

References

Bateman, N. (2000). Advocacy skills: A handbook for human services professionals. London: Jessica Kingsley Publishers.

Biklen, D. (1983).Community organizing; Theory and practice. Englewood Cliffs, NI: Prentice Hall.

Cleary, P. (2001). The negotiation handbook. Armonk, NY: M. E. Sharpe.

Cohen, H. (1980). You can negotiate anything. Secaucus, NJ: Lyle Stuart.

Ezell, M. (1991). Administrators as advocates. Administration in Social Work, 15, 1-18.

Ezell, M. (1994). Advocacy practice of social workers. Families in Society, 75, 36-46.

Fisher, R., Ury, W., & Patton, B. (1991). Getting to yes. Negotiating agreement without giving in. New York: Penguin Books.

Gibelman, M. (1999). What social workers do. Washington, DC: NASW Press.

Hepworth, D., & Larsen, J. (1993). Direct social work practice: Theory and skills. Stamford, CT: Brooks/ Cole.

Hepworth, D., Rooney, R., & Larsen, L. (1997). Direct social work practice: Theory and skills (5th ed). Pacific Grove, CA: Brooks/Cole.

Herbert, M., & Mould, J. (1992). The advocacy role in public child welfare. Child Welfare, 71, 114-130.

Johnson, L. C. (1995). Social work practice: A generalist approach. Boston: Allyn & Bacon.

Litzelfelner, P., & Petr, C. (1997). Case advocacy in child welfare. Social Work, 42, 392-402.

McGowan, B. (1987). Advocacy. In A. Minahan (Ed.-in-Chief), Encyclopedia of social work (18th ed., Vol. 1, pp. 89-95). Silver Spring, MD: National Association of Social Workers..

Schneider, R., & Lester, L. (2001). Social work advocacy. Stamford, CT: Brooks/Cole.

Statsky, W. (1993). Introduction to paralegalism: Perspectives, problems and skills (5th ed.). St. Paul, MN: West Publishing.

Vicki Lens, JD, PhD, is assistant professor, School of Social Work, Columbia University, 505 McVickar Hall, 622 West 113th Street, New York, NY; e-mail: vl2012@columbia.edu

Original manuscript received August 28, 2002 Final revision received January 30, 2003 Accepted July 5, 2002