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WHAT DETERMINES SUCCESS success in negotiation was whether each party
IN NEGOTIATING? was able to come out with what they desired.
HOW TO IMPROVE AS Making this the ultimate goal leads to greater
A NEGOTIATOR AND MEDIATOR success. Competition will remain present, to be-
lieve otherwise is naive, but where effort is ex-
By: David C. Peterson, Mediator pended in attempting to understand and meet the
One mark of a good negotiator is that they ana- needs of the other party, opportunity for agree-
lyze the other party carefully to ascertain their ment and party satisfaction is enhanced.
interests and concerns. By doing so, they are
We o
able to work toward addressing those interests often hear the terms "going outside the box,"
while seeking to satisfy their own. Seasonedgoing below the line," and "expanding the pie,"
mediators and negotiators know this and some. referring to the "win-win" approach. This is eas-
ier find these concepts somewhat elementary, ter in some circumstances than in others. In a
but we all need a periodic refresher. routine personal ,injury claim, ways to create
value seem limited, although creative ap-
A common theme or thread is found in the best proaches are still present, such as "structuring"
selling books on the topic of negotiation. That payments or incorporating an apology. There is
is, to create a win-win" result. The pioneers of also the story, frequently repeated, of a claim in-
this concept recognized their chances of success volving the death of a child. The settlement in-
in negotiation were significantly enhanced by cluded a public monument in a park in the
finding a way to satisfy the concerns and inter- child's honor. In another negotiation, one condi-
ests of the other side. As this concept has grown tion of the settlement was for the defendant com-
in popularity, we see books such as, "The Power pany to incorporate specific safety measures to
of Nice." avoid similar accidents in the future. The plain-
tiffs had stated repeatedly they wanted to see
Traditionally, the approach of the parties in ne- that nothing like what happened to them was re-
gotiation was to be the "winner," that is, to beat peated. In these two instances, emotional needs
the other side and obtain more of what was at (generally overlooked) had to be addressed to
stake. This competitive approach meant that, to reach agreement. Stories such as these abound
do your best, the other side was left in rubble among mediators.
while you escaped with all the goods. Tough ne-
,aotiating tactics were warlike. We find the ground more fertile for increasing
value or "adding to the pie," when situations
Guerilla tactics proved successful in many in- and relationships are more complicated or
stances but, as in war, there is normally a high multifaceted. We should remember also there
price paid. The costs expended on the dispute are usually interests hidden from view. It is
are typically greater and relationships are left in only by studying and exploring that these come
ruin. This fallout also tends to bleed into the to light. There are many examples of negotiators
community or business world of the parties. Fur- and mediators having success in seemingly
ther, the winning party may have had the hopeless situations when the real root of the dis-
stronger position or upper hand this time but pute and hidden interests of the parties, were un-
what about the next. If the tables are turned, ac- covered.
ing the same opponent or one from their circle,
will likely reap what was earlier sown. It's helpful to examine the principles behind
"interest-based" negotiation and the manner in
Eventually it was discovered the best test of
(Continued on page 17)
PAGE 16
=2;2
(Continued frorn page 16) 5., Identifies COMMITMENTS that
which these are successfully applied. There are clear and realistic.
are essentially seven elements: 6. Strengthens or at least does not
1. ALTERNATIVES: The things we harm, the RELATIONSHIP.
can do without the other party's agreement. 7. Reflects productive and appropriate
2. INTERESTS: Needs, concerns, COMMUNICATION.
goals, desires and fears, that have driven us to
negotiate in the first place. Once these are
identified, they will establish our demands. Here's an elementary example to illustrate:
3. OPTIONS: The range of possibili'- My brother, Richard, has four-
ries we can think of that we and the other
party may agree on. "Brainstorming" is a good teen and sixteen year old
approach to generate a greater list of these. daughters, Merideth and
4. CRITERIA: The legitimacy of how Megan. There is one orange
our INTERESTS are perceived. This is the left in the kitchen and both
perception of fairness by the parties as deter- want it They race down the
stairs and the fourteen year old
mined by outside standards or criteria such as (Merideth) grabs it. Richard
law, precedent, industry standards, expert appears and they both turn to
opinion, market prices, etc. him to solve the problem. What
.5. COMMUNICATION: The me-
dium through which we negotiate; exchange is the natural response? What
thoughts, feelings, preferences or other infor- does he do?
mation through speech, writing, physical cues
or other actions. - The ALTERNATIVES: For Me-
6. RELATIONSHIP: The connection rideth - run out with the orange so she gets it
between two or more parties associated with all; share it with Megan, ask for money and
the negotiation. take the time to go to the store and buy an-
7. COMNIITMENT: The agreement other. For Megan - use force and grab the or-
eventually reached about what the parties have ange away, so she gets it all; share it with Me-
decided they will or will not do. rideth,• ask for money and take the time.
What we seek from an interest-based nego- - The INTERESTS: Keep dad happy;
avoid more conflict and potential for violence;
tiation is an agreement which does all of the keep sister happy because they need each
following: other from time to time; avoid taking the time
1. Is better than our best ALTERNA- to go to the store; a showing by dad they are
TIVE to a negotiated agreement loved and respected; get "one up" on their sis-
("BATNA"). ter; get the orange.
2. Satisfies our INTERESTS. - The CRITERIA: Merideth - I got it
3. Is the best of the many OPTIONS first; Megan always gets more than me; it's
we have identified or generated. my turn to have dad favor me, etc. Megan -
4. Is legitimate in terms of being sup- I'm the oldest; I'm on a diet and need it more
ported by objectively fair CRITERIA. (Continued on page 18)
SLO BAR BULLETIN PAGE 17
(Continued from page 17) including fraud. Both men
than Merideth, etc. were very proud and con-
vinced they were in the right.
- The COMMUNICATION: Through There had been a long rela-
face to face discussion, beginning in a heated tionship between the two and
fashion. the owner felt he was
"stabbed in the back" when
- The RELATIONSHIP: Sisters and his services were not utilized
father as he expected. By the time
they reached mediation, the
- The OPTIONS: Divide orange parties had spent a great deal
or ??? Can more options be developed? Op- on fees and costs and ap-
tions need to be generated or identified by peared willing to spend more
examining and learning the interests of the to go through trial. It was ob-
parties. When it became known that Megan vious the case was not solely
wanted to eat the orange and Merideth about money. Pride and bad
wanted to use the peel to make a cake, it was feelings and a need to prove a
discovered each could have all they wanted point, were continuing to
from the orange. drive the dispute. There was
no way to convince the lessee
- The COMMITMENT: To divide to pay the owner and no way
the orange by Megan getting the orange and the owner would take less
Merideth getting the peel. than the loss he calculated he
suffered. Ultimately, the case
The same principles apply in complex dis- settled by the lessee paying to
putes with a great deal at stake and a seem- charity the amount demanded
ingly hopeless end in terms of an amicable by the owner. They decided it
resolution. Moving up a step in complexity, was best to turn their negative
here are two recent examples where the situation into a positive one,
principles were applied successfully: using the money they would
be spending to benefit others
A negative turned positive: and still walking away with
The parties were embroiled in their pride and principles in
litigation over the leasing of tact.
land. The owner asserted he
charged a lower lease rate be- A simple solution that would
cause it had been understood have been overlooked: My
the lessee would be using the daughter asked us to co-sign
owner's services in handling for her cell phone to save her
the lessee's product. How- from having to post a large
ever, the lessee retained an- deposit. We said "no" (at
other firm for these services. first). She could not under-
The owner, who lost this stand why. We had not ex-
business, sued for damages, plored each of our concerns
alleging a number of theories (Confirmed on page iv)
PAGE 18 SEP/OCT 2002
® I
(conn ued from Page rs) a Rolls Royce doing the same. In which in-
and interest. Susan had been stance would you find contempt for the
late with a few of her install- driver? But what if you learned the ambu-
ment payments and we did lance driver was buying donuts and the Rolls
not want our credit to be af- Royce driver was helping an elderly woman
fected. She wanted the phone who had collapsed. Perceptions without
primarily for safety reasons, adequate information can be unreliable.
not just to converse endlessly
with friends (the latter being Next, determine where interests and goals
our suspicion). Neither of us may coincide and where they are opposed.
wanted to have arguments From here, effort is necessary to prioritize
later if things did not go well and work on attempting to meet these needs
with her paying the bill. The and concerns in creative ways. If this does
easiest way to avoid a prob- not result in complete agreement; consider
lem (we thought) was for us trade offs that can be made in which you
to say "no." That impacted surrender things of less value to you in order
our relationship. We worked to receive that which has greater value to
together to devise a plan that you. For example, an employer may provide
worked for all of us. We 'more comprehensive health insurance that
wanted her to be safe also. you need at less cost than increasing your
Susan was added to our cell salary to the point you seek. You settle for
phone plan and gives us a less salary but obtain more in benefits to
daily log of hours. If she, make up the difference.
reaches the limit, she surren-
ders her phone until the next Once you know of the concerns and interests
month. of the other party finding ways to meet or
satisfy them, at least in part, will improve
Think of some recent mediations or nego- your success in negotiations and mediation.
tiations in which you were involved and When dividing a fixed pie, each piece taken
how you could have handled them more ef- by one leaves less for the other. For greater
fectively. See how easy it is to lapse into success, follow the trend of working toward
complacency when it comes to utilizing expanding the pie so that both parties are
these techniques? able to obtain more and suffer less. An ad-
verse party will more often give when some-
CONCLUSION: thing is offered in return, as opposed to re-
acting to threats or challenges. The key is
More is involved in a successful negotia- learning what is important to give in order to
tion than competing for portions of a fixed receive. Collaborate more, compete less,
pie. A primary focus must not only be on and be creative. Improved success will fol-
what you or your client seek but what you low.
are able to learn about the other side.. And David C. Peterson
never assume you know these in advance.
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