Securing Respect for Cultural Differences in the Negotiation Process
BACKGROUND:
In light of recent decisions by the Supreme Court of Canada, negotiation has taken on a new significance in the effort to ascertain and confirm Aboriginal rights. In principle, negotiation allows the parties to fashion together creative, flexible and enduring outcomes, through a process that enhances their future relationships. Such negotiations clearly face a number of challenges, including resourcing issues and important differences of view about the nature of the desired outcome. However, even if those concerns are resolved (perhaps by finding mutually acceptable policy guidelines to govern the negotiations) the critical challenge remains for the parties to find negotiation strategies that will be both effective and respectful of the cultural differences at the table. For appropriate solutions to be found and, just as importantly, for Aboriginals to accept that the negotiation process was meaningful, it is important to recognize that the process will not be acceptable if the mode of dialogue is not sensitive to, and does not reflect, Aboriginal values.
My research will examine what is generally considered to be the most enlightened negotiation strategy in business and government circles in Canada:interest-based (or “integrative”) bargaining. It will focus (from a theoretical perspective) on the question of whether implementing interest-based negotiation strategies is compatible with First Nations traditions and capable of serving as an effective and appropriate framework for resolving First Nations issues. Does the interest–based approach, with its Euro-American (Interest-based) pedigree and its focus on maximizing the parties’ abilities to satisfy their “interests”, create a bias from the outset against those who hold aboriginal worldviews and traditions of consensus building? Or, does it possess sufficient inherent flexibility to be used, with sensitivity to both sides’ perspectives, as an effective tool in bridging the cultural divide? If so, what factors need to be addressed if the parties are considering using an interest-based approach to guide their negotiations?
The proposed research will involve a review of the academic literature in support of the interest-based negotiation strategies to examine its premises, theoretical strengths and purported functional advantages. Key critiques of the approach will also be reviewed. In particular this research will review and assess critiques that focus on the adequacy of interest-based strategies in circumstances of gender or cultural difference or power imbalance. Having considered the flexibility of the interest-based approach to address these circumstances, the researcher will review the published literature on aboriginal traditions of conflict resolution and peace-making to determine whether there are similarities in aboriginal cultural traditions to the underpinnings of the interest-based framework. Finally, the researcher will examine the published research on the inherent difficulties in cross-cultural negotiations, particularly involving aboriginal and non-aboriginal groups to assess the adequacy of interest-based strategies as a tool for achieving success in such negotiations.
SITUATING MY RESEARCH WITHIN THE PROJECT AS A WHOLE:
I propose to study the negotiating strategies that might be deployed by aboriginal and Canadian governments when establishing the conditions of governmental autonomy. The principal research question here is how to secure respect for cultural differences in the negotiating principles themselves. Put differently, does the structure of negotiations generally adopted to date with aboriginal nations serve to reproduce occidental value systems, thus tilting negotiations against the aboriginal nations?
One of the central and recurring themes being examined in the national research project is how governance structures might take into account, and indeed act to preserve, cultural diversity. Thus, important components of the national project will examine the challenges posed by existing and past juridical and economic frameworks within which Canada has addressed Aboriginal nations’ efforts to realize authentic governance structures. The parties must address these same challenges when they structure the negotiation processes that they hope will give birth to new governance structures. Hence, I foresee a considerable amount of fruitful interplay between my research and that of many of the other academics involved in the national project.
My own research will proceed from the premise that attempts to achieve preserve cultural diversity through negotiation will not be effective unless the negotiation process itself, and the strategies used by the parties, are sensitive to the different cultural starting points of the parties. Work done by others on the project may provide empirical verification of this point, which my work will take as axiomatic.
Given the challenges referred to above, it not surprising that impasse is a common outcome of previous aboriginal rights negotiations in Canada. The result is either failure to reach any agreement (as in the United Anishnaabeg Councils governance negotiations in Ontario) or, in other cases, processes that take much longer than anticipated by the parties (as in the B.C. Treaty Commission process, and the Nishnawbe Aski negotiations in Ontario). Confrontation, such as at Caledonia, is also a possibility.
One negotiation strategy often used to reduce the risk of impasse is the so-called “interest-based” model, in which all parties explore whether a consideration of their broad, underlying goals can permit a creative exploration of options for resolution that might otherwise go unconsidered. In my own experience as a mediator in aboriginal rights negotiations, the interest-based model can be a particularly effective tool in assisting the parties to avoid the impasses and ensuing delays that can arise from the disparity in the parties’ initial positions.
My research interest lies in exploring whether this commonly-used strategy for allowing the parties to progress past their initial positions poses an overall danger to indigenous groups whose conceptions of their own rights may be inconsistent with the juridical and ideological norms embraced by non-indigenous governments. In particular, I will be examining the interest-based model of negotiation and its appropriateness for aboriginal rights negotiations in Canada.
RESEARCH QUESTIONS:
1. What are the theoretical strengths of the interest-based model in assisting the parties to achieve resolution, particularly in cases where the parties’ initial expectations and positions are widely divergent?
-what are the general criticisms of the effectiveness of the Interest-based model?
- what paradigms or implicit theoretical assumptions ground the theory and practice of interest-based negotiation?
- how adequately do interest-based strategies address disagreements on questions of principle?
Methodology: Literature review and critique.
2. Does the interest-based model offer sufficient flexibility to provide a culturally “neutral” framework for negotiation of aboriginal questions?
-what is the potential impact of culture on negotiations?
- how might cultural differences be expected to manifest themselves in aboriginal rights negotiations (language, protocols, worldviews, issue definition and priority, choice of participants, authority of negotiators, etc)?
- what might a “neutral” process mean in this context?
- can and should the interest-based model be adapted by the parties to ensure indigenous values equally shape the negotiation process? If so, how?
- are there alternative negotiation models that might better address cross-cultural differences?
Methodology: Literature review and critique.
Related Projects include: Loukacheva, Papillon, Delâge, Asch, Johnston, Forest.
3. Focussing on selected indigenous peoples in Canada, what was their historic approach to treaty-making and dispute resolution processes between peoples?
-recognizing that indigenous cultures are dynamic, how do those historic approaches affect their current views on how best to negotiate aboriginal rights and governance issues with the Crown?
- are there potentially fruitful interactions between those indigenous negotiation perspectives and the interest-based model?
Methodology: a. Literature review and critique.
b. Case studies of three separate indigenous nations involving interviews with elders and current political leaders as to their traditional and modern perspectives on negotiation (possibly Haudenosaunee, Mi’kmaq, and Wet’suwet’en).Interviews will comply with SSHRC and University of Western Ontario protocols for interviews with indigenous peoples and live subjects, respectively.
Related Projects: Jaccoud, Noreau, Delâge.
4. What techniques of cultural balance have been incorporated in existing and past governance negotiations in Canada?
- Do the parties perceive them to have been effective?
-What cultural challenges appear to have hindered past negotiations?
-What cultural issues appear not to have been addressed?
-Have interest-based strategies been used in those negotiations?
-Apart from the issue of negotiation strategy chosen by the parties, what other process elements might it be advisable for the parties to consider as they seek to create a balanced and effective negotiation process?
Methodology:a.Literature review and critique.
b. Analysis of the experience in the United Anishnaabeg Councils, Nishnawbe-Aski and B.C. Treaty Commission negotiations. This will likely include interviews with the parties’ negotiators. Interviews will comply with SSHRC and University of Western Ontario protocols for interviews with indigenous peoples and live subjects, respectively.
Related Projects: Christie.
5. What other issues related to the status of the parties and the Canadian colonial experience might be expected to pose challenges to establishing fair and effective processes for the negotiation of aboriginal rights and governance?
-what is the likely impact of existing Canadian juridical baselines on the parties’ ability to influence negotiated outcomes (including the Canadian courts’ recognition of Crown sovereignty, the absence of common law recognizing governance rights, the obligation to prove aboriginal rights on a case-by-case basis, etc.)?
-what is the likely impact of other potential sources of power imbalance in the negotiations, including financial and resource limitations on the indigenous side?
Methodology: Literature review and critique.
Related Projects: Williams, Leclair. McNeil, Alfred, Corntassel, Napoleon, Tully.
RELATIONSHIP BETWEEN MY RESEARCH QUESTIONS AND THE OVERALL THEMES OF THE RESEARCH PROJECT:
My research questions focus squarely on one of the central themes of Domain 3, namely the political and cultural aspects of intercommunity relations. In particular, the questions explore the effect of diverging values and reference systems on the parties’ ability to establish an authentic dialogue aimed at reconceiving governance relationships.
In relation to the project as a whole, my questions consider the legal, social, economic and normative factors influencing the existing relationship between indigenous peoples and Canadian authorities as background facts that must be taken into consideration when designing a negotiation process intended, first, to allow both parties to negotiate without disadvantage and, second, to permit a free exploration of possibilities for the future of their relationship.
FORM OF INTERACTION WITH OTHER RESEARCHERS AND PARTNERS:
-annual workshop and email communications with collaborators doing related research.
-contact with indigenous political organizations about their negotiation experience and possible desire for future workshops on negotiation strategies and tactics.
POSSIBLE RESULTS OF THE WORK IN THIS DOMAIN AND THE PROJECT AS A WHOLE:
-provide a broad theoretical framework as well as practical strategies for indigenous peoples and the Crown to reflect upon in moving toward governance outcomes that more adequately represent the worldviews and needs of indigenous peoples.
-provide a forum for intellectual interaction between indigenous and non-indigenous scholars on key issues involving indigenous peoples in Canada.
-while the project is ongoing it will provide an opportunity for scholars to interact with and learn from indigenous peoples in a manner that should help ground future scholarly work in the area.
