Identity Commitments at the Negotiating Table

via HNMCP blog
by Zekariah McNeal ’21

Identity often affects the substance of negotiations, not just the process. But this influence might be the most likely to remain unspoken. 

Consider an employee who enters her employer’s office to ask for a raise. That employee might prepare for such a negotiation by gathering objective criteria such as comparable salaries, market trends, and particular results that the employee has attained. The employee might consider sharing interests such as a plan to use a higher salary to pay for vocation-related night school tuition. And the employee may consider what unique salary or benefit options might be satisfactory. But rarely does the employee consider how her own personal identity and that of her supervisor might affect the substance of the negotiation, although the effect on process is often considered. Even more rarely would the employee dare to discuss such influence on substance within the negotiation. 

Identity is understood along a series of spectrums. Some identities are protected, such as race, ethnicity, sexual orientation, gender, political affiliation, and national identity. Others, such as corporate affiliation or familial affiliation, are not protected. Both protected and unprotected identities may be the fulcrums of various negotiations, from formal interactions such as settlement negotiations for employment law violations to informal discussions such as family negotiations regarding identity presentation or association.  

In such negotiations, identity is the subject of the negotiation, and a host of considerations must be assessed because of the complexity that identity adds to the substance of the negotiation. Even in negotiations in which identity is not the subject, the identity of the negotiators is considered when preparing the negotiation process. It is a primary consideration when planning the subtleties of how one speaks, the medium of negotiation, and even who is sent to the negotiating table.  

Yet in negotiations in which identity is not explicitly the subject there are still myriad ways that identity can affect the substance of a negotiation as well as the process. Identity, however broadly or narrowly understood, creates, undermines, and complicates the pre-negotiation commitments of counterparties. By doing so, it has the potential to make even simple negotiations difficult to traverse. Regular negotiating commitments are often easier to handle because they are presented and discussed throughout the interaction, but commitments that result from negotiator’s identity often remain unsaid. Examples might include the following: 

• A gay groom may negotiate with his straight, future mother-in-law over nontraditional details that he wants to include in his wedding. 
• A conservative student may feel committed to a political view that would cause her to oppose the general inclination of a student committee making a seemingly nonpolitical decision. 
• A Christian may object out of conscience to a somewhat deceitful negotiating strategy that his colleagues want to implement. 

Many such identities have achieved a social taboo status allowing them to avoid discussion, however much they influence the pre-negotiation commitments of counterparties. Even if not taboo, identity commitments may appear too risky to explicitly discuss because of the difficulty in predicting a counterpart’s response. Three ways that unsaid identity commitments can affect a negotiation are undisclosed third party influence, identity commitment assumptions, and unexpected trip mines. 

Third Party Influence

Personal identity creates affinity for particular people or groups of people, and when a negotiating counterpart fails to disclose that affinity, that counterpart may hide third-party influence that is dispositive for the negotiation. Consider the employee requesting a raise in our example. Perhaps the employee’s reason for her request implicates her identity due to familial affiliations in that she hopes to better support a family member who is sick at home. In a less tangible connection, perhaps the employee has discovered that women of her race are consistently among the lowest-paid in her field, and on their behalf she considers it important to far exceed the average salary. To discuss such personal considerations may be uncomfortable for the employee. Or in the case of the sick family member, the third party may expect privacy from the employee, thus drawing her into an informal agency relationship. However strong these connections, the employee is not only representing herself in negotiations but is also representing her people. 

Escalation of Assumptions

Identity commitments can create more complications by inspiring assumptions. Accompanying personal identity are countless stereotypes and expectations that result from depictions or experiences with others of the identity. These can lead to strategic negotiating decisions that stem from the assumption rather than a reality. The employee may assume that her supervisor will not be fair in deciding her raise because of the gender or racial identity of the supervisor or because of previous experiences with other supervisors. Her assumption may lead her to ask for more than she would actually find appropriate or to disbelieve the supervisor’s assessment of the firm’s ability to provide her a raise. Furthermore, assumptions may accumulate in a negotiation. For example, the supervisor may assume that the employee is making an assumption about him and strategically determine to hear the employee’s inquiry with skepticism. Because they are often implicit, identity assumptions may affect negotiation strategy without the negotiator being aware. And, even where the negotiator might desire transparency regarding such assumptions, their taboo status may cause the negotiator to decide not to communicate them.   

Unexpected Trip Mines

Both the aforementioned assumptions and undisclosed third-party influence can lead to unexpected trip mines. Such trip mines indeed permeate any negotiation, but identity multiplies their frequency and, potentially, their emotional intensity. A negotiator may voice a taboo assumption. Or he may seek a particular outcome, not because of voiced interests, but because of undisclosed third-party influence. These maneuvers may lead his negotiating counterpart to develop anger or distrust. A negotiation upset in this manner might devolve into an argument about how identity is being wielded improperly, or it might create a passive assumption that a counterpart is prejudiced. The supervisor may comment about the employee’s tardiness and weigh it against the employee’s request for a raise, but such a comment may unintentionally gloss over the employee’s morning obligations to their undisclosed sick family member. Negotiating missteps such as this may result in a counterpart being resentful, and they may disrupt a present negotiation as well as a long-term relationship. 

Identity commitments should not be understood negatively. Many are entirely appropriate. But negotiators should be aware of how identity can affect the substance of their negotiations. A discussion with one person may covertly be a discussion with many of that person’s identity. An ostensibly banal negotiation may be suffused with assumptions regarding the identities of the negotiators. And substantive negotiating moves may undermine the identity of a counterpart and damage the negotiation. Identity commitments are often unsaid and will remain so, but negotiators should consider strategies to use them or respond to them so as to best make agreement possible. Some strategies for negotiators might involve engaging tools and approaches such as assessing the appropriateness of their assumptions, inquiring about their counterpart’s assumptions, and asking for understanding prior to any misstep. Negotiators might also consider what it would look like—and what would be at stake—to make these identity commitments known in the negotiation. These tactics do not make the navigation of identity within negotiations easy, but they can mitigate its potential to disrupt the negotiation and perhaps even open up an opportunity for greater connection and understanding.

Zekariah McNeal ’21 is a JD candidate at Harvard Law School. He focuses his studies on corporate law, criminal law, and dispute resolution. He has been a Teaching Fellow in a conflict resolution course at Harvard College and a student in the Harvard Negotiation and Mediation Clinical Program. He serves as a Notes Editor of the Harvard Law Review, represents low-income clients in Boston-area criminal hearings through the Harvard Defenders, and is an active member of the Harvard Black Law Students Association. Before law school, Zekariah called Oklahoma City, Oklahoma, home. He graduated summa cum laude from Oklahoma Christian University where he obtained degrees in Electrical Engineering and Biblical Studies. He worked for two years as an electrical engineer before transitioning to Harvard Law School.