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HomeMy WebLinkAbout09/17/2002, COMM - COUNCIL COMMUNICATION ro' �� �� .._..:TING AGEND , - T"` /76�� DATE ITEM #� 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. Think of an ambulance double parked on a PCLECf NCIL 11 coo Dip crowded street during rush hour, and think of 0 ❑ FIN DIR ❑ FIRE CHIEF RNEY 1: PW DIR RECEIVED IVCRIa El POLICE CHF ❑pEPL DS 0 AEC bIR SLO BAR BULLETIN i 9V (:2 UTIL DIR SEP 17 2002 d HR CIR SLO CITY CLERK