When I was attending the course, Mediating the Litigated Case, at the Straus Institute for Dispute Resolution of Pepperdine University School of Law, it was embarrassing having the Acting Director, Peter Robinson, tell me I was wrong as I tried to defend my answer to the Prisoner's Dilemma. It was not much comfort knowing the Judge from New Hampshire attending the course sided with me, as did a number of other negotiation seminars. After all, we attorneys like to know everything, and we hate to be wrong.
The Prisoner's Dilemma is a type of non-zero sum game that has been used in numerous classes dealing with ethics, politics, business, negotiations, mediations and related topics. It addresses the fundamental conflict between what is a rational choice for an individual member of a group and for the group as a whole. I am not going to explain the game here.
If you are not familiar with the game it will be much more beneficial for you to experience it live during a CLE. I will however discuss an important aspect of negotiation seminars that was discussed during the course after playing the game, and that is that all negotiation happens in the face of uncertainty.
Attorneys are told, "Don't ask a question you don't know the answer to." This advice often refers to having a witness on the stand during trial and illustrates the importance of negotiation seminars. Preparing for negotiations and mediations is equally important; however we are never going to really know what the other side is willing to do. Just as we do not disclose information to the other side, they do not disclose what they are really willing to do to us.
Neither side of negotiation seminars knows just what the other side is willing to do, but we still have to make the decisions to put a deal together or resolve a conflict without this information.
The decisions we make in negotiation seminars are made in the face of uncertainty. It is a reality of the negotiation process. Whether your negotiation strategy is shrewd or na�ve depends on the other party to the negotiation. The choices you make can have different results depending on who you are negotiating with and your ability to anticipate.
How good of a forecaster are you? How good of a mind reader are you? You know what your goal is, and you must make a decision because you cannot accomplish your negotiation seminars unilaterally. Your decision is then combined with someone else's decision who is also deciding in the face of uncertainty. You will then look back at the decision as a great victory or a huge mistake depending on what the other side does. It is at this point that you pat yourself on the back for your great forecasting or kick yourself in the seat of the pants for not being able to read the mind of your opponent.
You have probably been at a point in negotiation seminars where you determined it was enough, and you made what you believed a reasonable offer the other side would accept. The other side then came back with, "Now we are making progress." You knew you were in trouble. You gave a lot away and did not have much more to give. You thought it would be over and now the other side believed it was just beginning. A wise decision if they accepted it sends you up the creek without a paddle when rejected. Bottom line, you never really know.
Because all negotiation seminars happen in the face of uncertainty, good negotiators become good at predicting what the other side will do. This comes with experience, and it also comes with thorough preparation. The more information you have, the better you can predict outcomes.
It also requires negotiation seminars to be accepting without knowing everything. There will be a variety of uncertainties during negotiations. These may include who has the authority, what agendas, motivations, and ethical considerations are driving the process, strategy, and outcome.
Everyone in the negotiation seminars must be willing to accept the deal without knowing what the other will really do. While this can sometimes be difficult, it must be done to reach a deal or settlement.
All negotiation happens in the face of uncertainty. There are no clear-cut rules. It is a reality of the process and something all negotiators should consider. There are things that can make this element of negotiation easier, and just understanding you must make decisions without knowing everything allows for some flexibility and comfort in the process. Thoroughly prepare, learn from your experiences, have a willingness to accept without knowing everything, and you will be able to make better negotiating decisions in the face of uncertainty.