LEGITIMACY CRITERIA

The use of objective or legitimacy criteria in the negotiation process constitutes another fundamental element in the Negotiation Theory developed by the Harvard Negotiation Project.

Objectiveness may be defined as the ability skill to be impartial in the sense of considering a problem independent from personal interests.

Furthermore, legitimacy criteria may be defined as the objective knowledge that  may be used in the development of a negotiation to propose options based on standards independent from the parties’ will.

In many negotiations, the parties mostly position themselves in subjective  arguments – personal- which difficult the achievement of a negotiated agreement, fundamentally for exclusively analyzing their own interests and thus obviating the other party’s interests. This situation may bring the negotiation process to a standstill, since options proposed only satisfy the interests of one of the parties. In these cases, the use of objective criteria is one of the most recommendable solutions.

(Objective) criteria of legitimacy constitute one of the most effective persuasion tools for the negotiator to propose solutions to unblock the negotiation. Similarly, they may generate an additional value, since they may create new options and the agreement may even become more beneficial for the parties.

“Legitimacy criteria, due to their objective nature, are the most effective mechanism for persuasion and simultaneously prevent the other party from ripping us off.”

One of the keys for the achievement of a negotiated agreement is based on each of the parties feeling that it is being treated with justice and equity. Therefore, agreements relying on these legitimacy criteria will have more possibilities to be complied by the parties, since each party may have a more positive perception of the agreement reached for considering that it has been treated fairly and without the other party having ripped it off.

Similarly, these criteria help the parties to better protect themselves before negotiators who may use manipulative or coactive tactics, since on the one hand they may detect them more easily and on the other hand such criteria will help them to refute more easily the arguments proposed which may exclusively satisfy the interests of one sole party.

The most common legitimacy criteria used in a negotiation process are the market price, expert opinions, third parties or neutral experts, laws and regulations, the customary practices within the economic sector, etc. All these elements have a common threat: their resulting value is independent from the parties’ will.

In turn, there may be several objective criteria applicable to a specific case, but leading to opposite results. In these cases, we must bear in mind that the existence  of a legitimacy criterion does not exclude the other criteria. Consequently, the  parties should agree which is the most appropriate or fair objective criterion for the specific case.

It is worth mentioning that objective or legitimacy criteria are not immutable, but they may be modulated by common agreement of the parties in a negotiation. It is therefore recommendable for both parties to cooperate in weighing-up the application of these objective criteria to reach a fair agreement.

For this purpose, the parties taking part in a negotiation process should be aware of the importance of insisting on the objective criteria supporting their arguments, as well as of being receptive before the objective criteria used by the other party.

As an example, let’s suppose that two people are negotiating the acquisition price of a plot of land. The seller says that the price of the plot of land is 100. In turn, a potential purchaser offers 80.

In most of the negotiations, each party adopts an initial position to subsequently make concessions to reach a commitment.

So in this abstract example, the seller may argue that the price must be 100 because it wants to invest such amount in another larger plot of land. The purchaser, in turn, offers 80 because it is the money that banks may lend him or for example because he must invest 20 in refurbishment works for the use to which he has designed the plot of land.

“Agreements based on legitimacy criteria set a greater expectation of compliance, since the parties are considered as fairly treated.”

This type of negotiation may lead to an agreement if both parties give in their initial positions by bargaining, but there is also the risk that they leave the negotiation because they feel tied to accept an unfounded price, without an objective criterion, since in both cases the arguments used are of a subjective nature and should not have any impact on the negotiation process.

However, an agreement may be reached if the reasons leading them to determine a sale price are fair considering objective criteria. In this particular case, elements relating to the property may be taken into account, such as:

  • The price of the land in the same area and of a similar surface area.
  • The price of the hectare in the area.
  • The expert report, if any.
  • The condition of the land, accesses or any existing water and power supplies.

This way, the parties may agree the price based on the objective elements that better adjust to the particular case.

In such cases, objective or legitimacy criteria may be used as a “sword” and as a “shield”.

As a “shield”, in the sense that they are usually the best arms for persuasion, which is fundamental in the negotiation process. This will facilitate more effective arguments to convince the other party that a certain particular option is the fairest one.

And as a “shield”, i.e., as a defence in unfair situations or arguments, as a protective shield that helps to avoid the other party to rip us off by giving in before unfounded requirements.