Negotiation is part of the fabric of everyone's life, but even more so for the practicing attorney. Attorneys that possess strong negotiations skills training are usually more productive and successful.
Mediation is an extension of the negotiations skills training involving a third party. Therefore, attorneys acting as mediators, or advocating for clients during mediation, should consistently hone and expand their negotiation skills.
This article is the first of a series of articles I plan to write on negotiation. Through these articles, I intend to share both negotiations skills training, strategies and tips that practicing attorneys and other business people can use during negotiations, as well as useful resources for further study.
In the fields of negotiation and mediation, one small book has had a tremendous impact. Published in 1981, Roger Fisher and William Ury's book, Getting to Yes, introduced the concept of "principled" or "interest-based" bargaining. It is difficult to find negotiations skills training or a mediation course that does not reference this landmark text. It is one of the most well-known works in negotiation literature and has been the focus of considerable commentary by legal scholars.
Some of the book's strengths are its discussions on separating the people from the problem and focusing on interests, rather than positions. This book introduced the term BATNA, your Best Alternative To a Negotiated Agreement, the standard against which Fisher and Ury claim any proposed agreement should be measured. It make sense, because using your BATNA as a standard, you can protect yourself or your clients from accepting terms that are too unfavorable and from rejecting terms it would be in your interest to accept. The lessons on principled negotiations skills training are well worth the short amount of time it will take to read this book.
Principled negotiation, as espoused by Fisher and Ury, is an approach to bargaining that expands "the pie" rather than just dividing it as with distributive bargaining. Principled negotiation is the win-win approach that is also referred to as integrative bargaining. In contrast, distributive bargaining generally assumes a zero-sum position where plus one for me equals minus one for you. Both approaches, distributive and integrative have a place on the bargaining table. Having a clear understanding of both approaches enables an attorney to be more flexible when representing clients' interests in negotiations skills training and mediations. It is not uncommon for a party to take an integrative approach at the outset of a negotiation and switch to distributive bargaining sometime during the process.
This is usually when the interests are being explored early on, and then actual negotiations regarding money become the focus at the end. When dollars are being discussed, distributive bargaining is most common. Sometimes a party will take the distributive approach when the negotiations skills training commence and then become more integrative when a deal or settlement is not reached with the competitive method. The successful attorney prepares for negotiations and considers which approach, or what combination of approaches, makes the most sense for the matter at hand.
Using Fisher and Ury's principled approach, the focus is shifted to the sisters' interests rather than their positions. This time, rather than just proposing a solution, mom the mediator seeks to understand and find out why each sister wants the orange. Mom discovers that one sister does not really even like oranges, but she wants to bake a Christmas cake which calls for the peels of one orange. The other girl wants to eat the fruit and plans to toss the peels into the garbage. Learning the interests of each person, rather than just knowing their positions, allows for creative and often much more satisfying results. By giving the peel to the first girl, and the fruit to her sister, each girl receives 100% of what she wanted for a truly win-win solution.
For the attorney who wants to expand "the pie" of negotiations skills training to better serve clients, Getting to Yes is a quick read with useful insights and techniques.
The book has been criticized as neglecting a significant part of the negotiation process (distributive bargaining) and oversimplifying many of the troublesome problems inherent in the art and practice of negotiations skills training.
Nonetheless, it contains useful techniques and valid criticism regarding negotiation and should be read by every practicing attorney, especially those involved with negotiations skills training. It is especially useful for those who tend to only negotiate with a distributional or distributive approach. I encourage everyone to read this small negotiating gem and incorporate the problem solving techniques in their negotiations and explore mutual profitable resolutions in their mediations.