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The breakthrough strategy is counterintuitive: it requires us to do the opposite of what we might naturally do in difficult situations. In addition, the essence of the breakthrough strategy is indirect action. Rather than trying to break down opponent's resistance, we make it easier for him to break through it themselves. In short, breakthrough negotiation is the art of letting (1) STEP ONE: Don't React Go To The Balcony The first step we need to do in dealing with a difficult person is not to control his behavior but to control our own. Because when we react-act without thinking, we usually neglect our interests. "Going to the balcony" means distancing ourselves from our natural impulses and emotions. From the balcony we can calmly evaluate the conflict, think constructively for both sides, and look for a mutually satisfactory way to resolve the problem. One the balcony, the first thing we need to do is figure out our interests. We also need to identify our BATNA- our Best Alternative To a Negotiated Agreement. The agreement must satisfy our interests better than our BATNA could. Our BATNA should be our measuring stick for evaluating any potential Often we do not even realize we are reacting, because we are too enmeshed in the situation. Therefore, we need to recognize the tactic. Make a mental note when we detect a possible trick or subtle attack. By naming the game, we are able to neutralize it easily. Once we have named the game and stop our immediate reaction, the next step is to buy ourselves time to think-time to go to the balcony. Use the time to keep our eyes on the prize-an agreement that satisfies your interests, certainly better than our BATNA can. Instead of getting mad or getting even, concentrate on getting what we want. This is what going to the balcony is all about. (2) STEP TWO: Disarm Them Step To Their Side Before we can discuss the problem with the opponent, we need to disarm him. The secret of disarming is surprise. To disarm our opponent, we need to do the opposite of what he expects: step to his side, listen to him, acknowledge his point, and agree wherever we can. Listening requires patience and self- discipline. Instead of reacting immediately or plotting our next step, we have to remain focused on what our counterpart is saying. Listening gives us a chance to engage him in a cooperative task-that of understanding his problem. It makes him more willing to listen to After listening to our opponent, the next step is to acknowledge his point. Acknowledging the opponent's point does not mean that we agree with it. It means that we accept it as one valid point of view among The next step is to agree wherever we can. It is hard to attack someone who agrees with us. (3) STEP THREE: Don't Reject Reframe Instead of rejecting our opponent's position, we need to direct his attention to the problem of meeting each side's interests. Reframing works because every message is subject to interpretation. It means putting a problem-solving frame around our opponent's positional statements. A problem-solving question focuses attention on the interests of each side, the options for satisfying them, and the standards of fairness for resolving differences. Rather than trying to teach him ourselves, let the problem be his teacher. (4) STEP FOUR: Make It Easy To Say Yes Build Them A Golden Bridge At last we are ready to negotiate; however, our opponent may stall. Instead of pushing our opponent toward an agreement, we need to do the opposite. Our job is to build a golden bridge across the Building a golden bridge means making it easier for our opponent to overcome the four common obstacles to agreement: it means actively involving him in devising a solution so that it becomes his idea, not just ours; it means satisfying his unmet interests; it means helping him save face; it means making the process of negotiation as easy as possible. (5) STEP FIVE: Make It Hard To Say No Bring Them To Their Senses, Not Their Knees Once our opponent still resists and thinks he can win without negotiation, our natural temptation is to abandon the problem-solving game and turn it to the power game. However, unless we have a decisive power advantage, the opponent usually resist and fight back. Even if we win the battle, we may lose the war. In the process we may destroy our relation with our opponent. And he will often find a way to renege or retaliate the next time he is in a better power position. Overcoming the power paradox means making it easier for our opponent to say yes at the same time that we make it harder for him to say no. We should treat the exercise of power as an integral part of the problem-solving negotiation. Instead of seeking victory, we should aim for mutual satisfaction. We should use power to "educate" our opponent. We need to convince him that he is wrong. We could ask him reality-testing questions designed to get him to think through the impact of not reaching agreement. Than the next step is to use a direct statement of what will happen-a warning. However, we need to be careful not to threaten the opponent. If our opponent ignores our warning, we will need to take the next step: demonstrate our BATNA. Use it only if necessary and minimize his resistance by exercising restraint and reassuring him that our goal is mutual satisfaction, not victory. We need to remind our opponent continually that the golden bridge is When I confront with difficult people, I intend to stop communication with them. Because I think it is useless and time-wasting to negotiate with an irrational person. However, I am also damaged by doing so because it is impossible to refuse anyone whom I do not like to talk to. It seems that I always react immediately and adopt the BATNA that is described in the book. After reading this book, I realize that it is possible to remove obstacle in the negotiation and achieve the win-win results. Even drive a bargain with a car dealer, I could use strategies taught by the book, too. Negotiation is the art. I seldom notice that before. This book provides me the practicable strategies and sharp examples that will help me to improve my relationship with others. *Picture: Student Essays*Get Essays - Essay Search - Submit Essays - Request Essays - Essay Links - FAQ Human resources professionals have been breathing a bit easier because of the retrenchment in the "At-Will" Employment Doctrine.(1) The repreive was short lived, however, as a relatively new employee relations law scourge has surfaced- The Tort doctrine of negligent hiring/retention.(2) Although this theory is not new, it's prominenece is growing. This added cause of action in tort law is resulting in increased employer liability and risk. Often, Court award outcomes in these cases are in the hundreds of thousands of dollars, and more, and are likely to be upheld on The limitations placed on human resources professionals and employers relating to preemployment inquiries make an interesting contrast to the negligent hiring dogma. Discrimination law, such as title VII of the civil rights act of 1964, as written and/or interpreted by the courts, proscribes many inquiries that have a negative employment-related impact on protected Plaintiffs also are asking the courts to curb employer access to employee records and other personal information under the right to privacy arguement, a constitutional arguement employing fourth amendment illegal search and siezure guarantees. Human resources managers can be heard in corporate hallways mumbling about these apparent conflicts and incongriuties in common law and government mandate. Historically, If a worker commited a negligent act, a plaintiff often would sue his or her employer under the theory of Respondeat Superior, or let the master respond. (3) This doctrine holds the employer liable for his or her employees' negligent, on the job actions and does not depend in any way on the fault of the employer. (4) Common law held that employers owed thier employees a duty to provide a safe place to work. Eventually, this duty was extended to providing safe employees, because the courts reasoned that a dangerous co-worker is comparable to a defective machine. (5) In the majority of successful negligent hiring/retention court cases the nature of the relationship between customer plaintiff and business defendant seems to drive the outcome. In cases in which plaintiffs have recovered, there appears to be a higher degree of duty or care required between business and it's customers because of the nature of the product or Fundamental to a negligence action is the existence of a duty owed by the defendant to the plaintiff ( See Bidar Vs. AM-FAC, Inc., 66Haw. 547, 551; 669 P. 2d 54, 158 {1983}.) A defendant owes a duty of care only to those who are foreseeably endangered by the conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous. ( See Hulsman vs. Hemmeter Development Corp., 65 Haw. 58, 68, Therefore, duty under the negligent hiring theory depends on forseeability, that is, "Whether the risk of harm from the dangerous employee to a person...was reasonably forseeable as a result of employment."( See Di Cosala vs. Kay, 91 N.J. 159, 450A. 2d at 516 {1982}.) Some examples of a higher duty of care include Landlord/tenant relationships, common carriers (railroads, airlines, ship lines), hospitals, and other patient care facilities and taxi services. Often when a negligent hiring complaint is initiated a simultaneous allegation is made of negligent retention. Negligent hiring allegations imply a preliminary error in terms of the hiring process ( See Ponticas vs. KMS Investments, 331 N.W. 2d, 907 {1983}.) This means that the employer should have known before hiring an individual that the person was unfit for employment. Negligent retention is an after-the-fact consideration (See Cherry vs. Kelly services Inc., 2d 463 {1984}) applying to the instances in which the employer becomes aware of the employee's unfitness after hiring him or her. Here the employer has an obligation to initiate an action to counter the person's unfitness, including retraining, reassignment, rescheduling or discharge ( See Cutter vs. Farmington, 498 A. 2d 316{N.H. 1985}.) For example, in Abbot vs. Payne et al (57 So. 2d 1156 {Fla. App. 4 Dist. 1984}) a negligent hiring and employment allegation was at issue. The focused action precipitating this case occured after the worker terminated The case involved a customer who contracted with the Apollo Termite & Pest Control Co. to provide regular service in her home. Apollo assigned the co-defendant employee, Randall Payne, to provide service in Abbot's home. Abbot worked full time, so it was necessary for the pest control company to have access to her home while she was away. Therefore the company requested that Abbot provide a passkey. Because Payne would have the key and, therefore, independant access to her home, Abbot sought and obtained representations from the firm that Payne was reliable and trustworthy, and the company was fully bonded. quently, based on assurances from the company, the plaintiff allowed Payne to enter her home. Shortly after his employment with Apollo ended, Payne used the passkey to break into Abbot's home at night, and psysically assaulted her. The court found in favor of Abbot, saying that liability for an ex-employees conduct can occur, and that the employer has a duty to inquire into the background of a job applicant, including past employment and references. In its opinion, The court cited William vs. Feather Sound Inc. ( 386 So 2d 1238, 1240 {Fla 2d DCA 1980} petition for review denied, 392 So. 2d 1374 {Fla 1981}) saying: If an employer wishes to give an employee the indicia of authority to enter the living quarters of others, it has the responsibility of first making the inquiry whether it is safe to do so. The court reaffirmed the ( Williams ) opinion, indicating that when an employer provides assurances to a customer, vouching for an employee's honesty, reliability and trust, that employers responsibility ( And liability ) is In another case Salinas vs. Fort Worth Cab & Baggage Co. ( 725 S.W. 2d 701 { Tex 1987 }) the plaintiff Maria Salinas, was raped, sodomized and robbed by a taxicab driver who accepted her as a fare. The driver had an extensive criminal assault record, including rape and assault. The plaintiff argued that this information should have been available to the Ft. Worth Cab & Baggage Co. and that the employer should have known about the employee's criminal record and made use of it before hiring him. The defendant cab company admitted that it made no preemployment check of the driver's background. The court held the business liable for negligent hiring and retention of a violence prone employee who had willfully injured others during the course of his employment. Duty of Care Increases depending on Industry In C.K. Security systems vs. Hartford accident and Indemnity Co. ( 137 Ga. App. 1, 159, 223 S.E. 2d 453 {1976}), A Georgia court of appeal held the employer to a higher duty when it investigated backgrounds of security A guard provided by a sercurity service entered a client's business and stole a blank check. After forging signatures on the check, he successfully cashed it through the tenants bank. The Bank sued the security company The security firm defended itself by saying that it had followed it's usual pre-employment procedure and had contacted the individuals past employers. The court denied summary judgement saying that because of the nature of its business, the firm was required to exercise greater care ( I.E. Beyond what the firms usual practice entailed ) to ascertain whether potential security guards possess specific characteristics, such as honesty, that are required by the nature of the employment. The health care industry is another prime example in which duty of care is increased in regard to hiring and employment. In Joiner vs. Mitchell County Hospital Authority ( 125 Ga. App. 1, 186 S.E. 2d 307 {1971}, aff'd 229 Ga. 140, 189 S.E. 2d 412 {1972}) A negligent hiring claim involved the alleged failure of a hospital's employment procedure in not requiring proof The plaintiff's spouse was brought to the hospital complaining of chest pains. A hospital physician examined the patient and released him saying that the patients condition was not problematic. After arriving home, the patient's pain intensified. On returning to the hospital the patient died. In her suit against the hospital, the wife claimed that the hospital failed to require proof of the physician's professional qualifications and that simply relying on the fact he was state licensed was not enough. The Georgia appeals court agreed, saying that hospitals have an affirmative duty to conduct independant investigations into a physician's professional Contrasting the negligent hiring issue is that of negligent retention. In Pruitt vs. Pavelin ( 685 P. 2d 1347 { 1984}, a realtor hired an agent to sell its real estate listings. Management knew of some of the indiscretions and became aware of others on the part of its newly hired real estate agent when employment was offered. These indiscretions included forging documents for a former employer, a conviction for passing bad checks and lying about obtaining a realty license. Despite knowledge of these matters, the realtor vouched for the employee's character to the public. The court concluded that the firm was liable for the consequences of it's agents misconduct because most of the individual's past actions became known to the employer In a New Mexico case, Valdez vs. Warner ( 742 P. 2d 517 { N.M. App. 1987}), a bar employee assaulted a patron, Victor A. Valdez, In the parking lot of his employer and his co-defendant Z&E Inc. The plaintiff brought The court of appeals accepted evidence that the " defendant previously physically assaulted the son of the owner of the (Co) defendant bar, and at one point he was banned from the bar for fighting, and that while working as a bouncer in the same bar he was involved in other physical alterations." Even with knowledge gleaned before he was hired and subsequent knowledge gained after employment, the defendant was retained. The court found " There was evidence.... that the owner of the bar was negligent in Hiring Warner with his background of violent behavior..." An additional twist to this case was the plaintiffs request for punitive damages. The courts response to this request was that " Recovery of punitive damages is permissible if the jury finds the wrongdoers conduct to be willful, wanton, malicious, reckless, oppresive or grossly The court added that " Gross negligence is a sound basis for award of punitive damages." The case was remanded to a lower court with instructions saying that if a jury found, based on the evidence, That Z&E Inc. was guilty of gross negligence, than punitive damages would be appropriate. Courts that have heard and ruled on negligent hiring/retention charges have indicated that employers are responsible to thoroughly investigate the Employers generally are viewed by courts as being accountable for * A Link can be established between employee actions and third-party injury. * Information concerning the employees unfitness, instability, or unsuitability for a job was available before hiring or became available * It can be established that such information is or was used to make a decision thereby taking the public out of harms way. If these criteria are met, the level of care demanded from an employer is Extensive state and Federal legislation and executive orders exist concerning equal employment opportunity EEO that directly affects business employment practices. Most statutory legislation and federal executive orders are designed to prohibit employment discrimination based on race, color, national origin, gender, age, and handicap. Title VII the hallmark statute in this field of law, addresses illegal discrimination in three areas: Intentional discrimination, Disparate impact, and Disparate treatment. The most controversial of these is Disparate impact. The landmark US Supreme court case Griggs vs. Duke Power ( 401 U.S. 424 { 1971 } ) interpreted disparate impact as any nuetral employment practice that adversly affects a protected class of people ( e.g. Blacks, women and so on). The court stipulated that discrimination could be practiced legally only: 1) If a manifest relationship could be established between employment requirement and employee job performance; 2) In the event of safety considerations ( See New York City Transit Authority vs. Beazer 19 FEP Cases { 1979}); or 3) for a so called business necessity. ( 7 ) Examples of adverse impact theories include: * Requiring a job applicant to meet minimum height and weight * Using arrest and conviction records in selection ( See Green vs. Missouri Pacific Railroad Co., 523 F. 2d 1290, 10 FEP Cases 1409 ) * Applying a rigid clean-record policy as part of an employment procedure ( See EEOC decision no. 71-797) ourts hearing cases alleging disparate impact that focus on employment policies and practices are neutral but discriminatory in effects. Courts, however, look at consequences rather than motive, effect rather than purpose. (8) PLAINTIFFS USUALLY PREVAIL IN THESE ACTIONS It is important to note that plaintiff successes far outweigh successful defenses in negligent hiring/retention actions. There are some avenues of defense, however, that should be addressed. These include: STATE LEGISLATIVE RESTRICTIONS. Many states have passed laws that limit employer access to certain personal background information of a job applicant. A prime example are laws that restrict access to criminal conviction records. Typically, state laws only allow the use of criminal conviction information if there is a direct relationship between the crime for which the job applicant was convicted and the job for which the person applied. ( See Guillermo vs, Brennan, 691 F. Supp. 1151 {N.D. Ill. 1988}.) In this example, a person who was convicted of theft was applying for a job as a laborer ( who would have no contact with anything of significant monetary value). Using the person's conviction record would not be appropriate in considering him for employment. LABOR CONTRACT If an employer is bound by contract to follow a procedure for employing persons and the employer follows the contract, his or her exposure to actions could and probably would be reduced. PROPER NEXUS IN CAUSATION To prove a case of negligent hiring/retention effectively, the accuser must show that information about the wrongdoer was available before or after hiring and was directly related to the injuries he or she suffered as a result of the individual hired by Many Human resources managers have interpreted the Supreme Courts Griggs EEO Opinion too narrowly. These supervisors might conclude that the manifest relationship needed to argue in favor of a business necessity exception in using a particular employment qualification is nearly impossible to attain. As such, the overly awed human resources professional might ignore the need to incorporate certain job requirements into a job description, fearing an EEO charge alleging dispararte impact. These managers, however, must look at each job and the effective and safe performance of that job, and then compare performance to equivalent and required job specifications. effective and safe job performance includes reducing unnecessary public risks when making employment decisions. If there is a Bona Fida need to affect a protected class adversly so that a particular job may be performed effectively and safely, claim the business necessity exception. By Ignoring such exceptions, the human resources manager may be increasing his or her exposure to negligent hiring/retention Prudent human resources professionals also must address the need of awareness and understanding associated with the legal theory og negligent hiring/retention. They should balance this area of the law with equal employment mandates and privacy considerations and develop basic pre- and post- employment policies and practices. The EEO exceptions allowed under business necessity should be persued aggressively whenever appropriate. Place particular emphasis on the pre-employment stage, and management should adhere consistently to prudent preemployment procedures. Some guidelines are available that may help derive complete background information about job applicants. Although they are not new, some of these proposals are controversial and thier use should be governed by an employer's need for certain information, state and federal laws ( e.g. 1) Require all job applicants to complete an employment application form that meets federal, state, and local employment related laws. Also require applicants to sign the application form, signifying that all the information provided is truthful and accurate. (10) As part of the application process obtain the job seeker's written agreement to perform a background check (11). In addition to basic information (name, address, education and employment history), employers who can show a definitive need for facts regarding criminal convictions should require this information as well. Remember, If a higher degree of care is required between a business and it's customers and if potential harm to the customer ( or any third party) is foreseeable, the companies liability automatically is greater. Also request and obtain copies of any professional license or degrees an 2) Conduct a nondiscriminatory job interview using the completed application to clarify and confirm information supplied by the applicant. The interview also provides an opportunity for an employer to determine whether an applicant is fit for the job which he or she applied. Use this opportunity to pursue and resolve any doubts about the applicant . Empolyers who do not conduct a job interview follow a hit and miss 3) Check the applicant's employment references so that information supplied by the applicant can be confirmed. Base the inquiry on the job applied for. (13) Many of the cases previously discussed address the need to obtain references. None of the cases however, touvch on the problems employers encounter when they try to obtain employment references from past employers. Typically, the employer attempting to obtain a reference is concerned about invading the applicants privacy. Previous employers are often guarded in thier comments - for fear of a potential libel suit being filed by the former employee. Many past employers refuse to provide information and simply say " No Comment. " Even if the human resources professional is unable to secure information from previous employers, at least the record is established that an attempt was made to obtain these 4) For high-risk, Medical-related occupations and job openings that require extensive physical exertion, a medical history request and a pre-employment physical examination, including a drug and alcohol test should be required as well. Inquire as to the applicants past and present medical and physical conditions, including illnesses, injuries or other conditions that could impair safe and effective job performance. 5) All sources of information should be documented in writing whenever possible, including the results of job interviews. Many cases hinge on being able to produce a written document in court. These strategies should help human resources managers obtain much of the information needed to make employment decisions that result in hiring safe and capable employees. These guidlines also serve to reduce exposure to negligent hiring/retention claims, thus minimizing EEO Challenges. 1- See in general, the following sources for background about the " at-will" employment doctrine: Fenton, J., and Timmins, S., " the at will Employment doctrine: Implications and recomendations for the small business firm," Journal of small business management, Jan 1982, p32 ;Hames, D., " the current status of employment-at will," Labor law journal. Jan 1988, pp19-32; Greylin, M., " Fired Managers winning more lawsuits," The wall 2- Fenton, J., " the negligent hiring and retention doctrine," Nursing 3- Restatement ( Second), Agency 219 (1957). 4- Brill, R. L., " The liability of an employer for the willfull torts of his servants," Chi-Kent, Law Review. Jan 1968. See also Reibstien, L., " Firms facing lawsuits for hiring people who then commit crimes," The wall 5-North, J.C., " The responsibility of Employers for the action of thier employees: The negligent hiring theory of Liability," Chi-Kent Law review. 6- Gregory, D., " Reducing the risk of negligence in hiring," Employee relations law journal. Summer 1988, p34. 7- In addition to the business necessity exception are section 703 exceptions called Bona Fida occupational qualifications (BFOQ). These narrowly construed exceptions encompass those instances in which legal discrimination based on gender, religion, or national origin ( But Never race) are practiced and are reasonably necessary to the usual operation of 8- Blumrosen, H., " Strangers in Paradise: Griggs vs. Duke Power Co. and the concept of Employment Discrimination," Michigan Law Review, 1972. 9- See, In general, " Employer Liability for the criminal acts of employees under negligent hiring theory: Ponticas vs. K.M.S. Investments," Minnesota 10- Not following this basic procedure could imply employee negligence. See Weiss vs. Furniture in the raw, 62 Misc. 2d 283, 306 N.Y.S. 2d 253 ( N.Y. 12- Jacobs, R., " Defamation and Negligence in the Workplace," Labor Law *Picture**Picture**Picture**Picture**Picture**Picture**Picture**Picture**Picture**Picture**Picture**Picture* Bibliography: Word Count: 3685
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