Arbitration & Mediation

What Every Mediator Wishes Every Lawyer Knew About Negotiation

By Victoria Pynchon

(image:  Avi dancing by Tamar Factor)

Because I cannot say it any better than this, I am simply excerpting the Conflict Research Consortium's article on Principled Negotiation. 

 You don't have to be an expert in this -- your mediator is. 

 To the degree you "get" this, you will form a far better negotiation team with your mediator to obtain the best deal possible for your client in any settlement or commercial negotiation. 

Promise!  

Principled negotiation is the name given to the interest-based approach to negotiation set out in the best-known conflict resolution book, Getting to Yes, first published in 1981 by Roger Fisher and William Ury.

The book advocates four fundamental principles of negotiation: 1) separate the people from the problem; 2) focus on interests, not positions; 3) invent options for mutual gain; and 4) insist on objective criteria.

Separating the people from the problem means separating relationship issues (or "people problems") from substantive issues, and dealing with them independently. People problems, Fisher, Ury and Patton observe, tend to involve problems of perception, emotion, and communication. 

Perceptions are important because they define the problem and the solution. While there is an "objective reality," that reality is interpreted differently by different people in different situations. When different parties have different understandings of their dispute effective negotiation may be very difficult to achieve. (This is what we have been calling framing problems.) Fisher, Ury and Patton suggest seven basic strategies for handling problems of perception. [go to linked article for further explanation] 

People problems also often involve difficult emotions — fear, anger, distrust and anxiety for example. These emotions get intertwined with the substantive issues in the dispute and make both harder to deal with. Fisher, Ury and Patton suggest five tactics for disentangling and defusing emotional problems in the negotiation process. [Click on the link for further explanation] 

Fisher, Ury and Patton consider communication problems to be "people problems" as well. They list three types of communication problems.

• First, disputants may not be talking to each other. While their comments are formally addressed to the opponent, they are actually addressing some outside audience. They are grandstanding, or playing to the crowd.
• A second communication problem arises when parties are not listening to each other. Rather than listening attentively to the opponent, parties may instead be planning their own response, or listening to their own constituency.
• Finally, even when parties are both listening and talking to each other, misunderstandings and misinterpretations may occur. Fisher, Ury and Patton suggest techniques for minimizing communication problems. [Click on the link for a description of these techniques.]

Negotiating about interests means negotiating about things that people really want and need, not what they say that want or need. Often, these are not the same. People tend to take extreme positions that are designed to counter their opponents’ positions. If asked why they are taking that position, it often turns out that the underlying reasons--their true interests and needs--are actually compatible, not mutually exclusive.

By focusing on interests, disputing parties can more easily fulfill the third principle--invent options for mutual gain. This means negotiators should look for new solutions to the problem that will allow both sides to win, not just fight over the original positions which assume that for one side to win, the other side must lose.

The fourth rule is to insist on objective criteria for decisions. While not always available, if some outside, objective criteria for fairness can be found, this can greatly simplify the negotiation process. If union and management are struggling over a contract, they can look to see what other similar companies have agreed to use as an outside objective criteria. If people are negotiating over the price of a car or a house, they can look at what similar houses or cars have sold for. This gives both sides more guidance as to what is "fair," and makes it hard to oppose offers in this range.

We will continue with this series:  What Mediators Wish Lawyers Knew in subsequent posts and encourage our lawyer-readers to please let us know what they wish mediators knew.

Full post as published by Settle It Now Negotiation Blog on January 19, 2008 (boomark / email).