How Positive Negotiations Can Avert Personalizing the Problem
In my last post I encouraged parties to embrace a positive negotiation process. Come to a mediation focused on presenting what you can do to prove your claims or defenses. By “can do” I mean the best evidence each side can present at a trial that creates risk of an adverse verdict for the opposing side. Those presentations orient each side toward their own objective risks, giving them an opportunity to appreciate and manage those risks during the mediation process. Another benefit of emphasizing the can-do evidence from each side is it focuses everyone on the problem (i.e., the conflicting evidence) and not on the people. That is, it bypasses the risk of personalizing the problem.*
How so?
By initiating negotiations with a focus on what each party can do at a trial, everyone side-steps the temptation to argue what their opponents can’t do. Of course, it is very tempting - especially for trial attorneys - to start off a mediation by arguing against the other side’s claims or defenses. Indeed, attorneys have to be skilled in this; it is an essential part of their work at trial. Mediations, however, are fundamentally different from trials. In a trial each side aims to prove their case to jurors who will ultimately decide whether they win, lose, or draw. In a mediation each side aims to manage their respective risks with the aid of a mediator whose role is to help them do just that. Simply stated, trials are inherently competitive, whereas negotiations are essentially collaborative. Even though each side in a mediation is seeking to optimize its own interests, all sides are still seeking the same thing: mutual accord. Starting off a mediation negatively - that is, by voicing judgments on what the other side can’t do or achieve at a trial - injects personal opinions into the negotiations that many people will take personally. Those personal affronts, whether intended or not, invariably undermine collaboration and the chances of a shared solution.
Why focus on what each side “can do” instead of what they “can’t do”? A few reasons are:
No one likes being told what they cannot do;
People quickly become defensive, distrustful, and even intransigent, when they are confronted with negative comments about their claims or defenses;
People hope to be heard, and they appreciate being treated with respect;
Focusing on what each side “can do” not only allows everyone to be heard, but it also encourages everyone to listen to what others have to say - which is exactly what we want if everyone is to use the mediation to identify, appreciate, and ultimately manage their respective risks;
Arguing what an opposing party can’t do can distract one from what that opposing party can do - that is, it can undermine one’s own opportunity to identify, appreciate, and manage one’s own risks.
In a positive negotiation process, everyone begins by presenting, and listening to, each party’s’ can-do evidence. Then the mediator’s role begins in ernest. Using private and confidential caucuses, and with the advantage of being neutral, the mediator can guide each side through a detailed and candid appreciation of the other side’s can-do evidence. The mediator’s first question for each side is simply whether they agree the other side can indeed present such evidence? If the answer is yes, we move on to the risk appreciation questions. What part of your claim or defense does that evidence put at risk? What is the probability that risk will materialize? What are the potential consequences of that risk materializing? Once each side has developed their own appreciation for those risks, the mediator can help them address the ultimate question: what next step should you take to manage those risks? Depending on the complexity of the dispute, the mediator may need to go back and forth between the parties on discrete items of evidence to complete the risk appreciation process. Throughout, each side gets the opportunity to advocate directly to the mediator before the mediator returns to the other side to continue that process. In this way, the mediation provides each side with a diplomatic way to advance their own objectives. Parties can discretely present their counterpoints through the mediator, who will raise those during his separate caucuses with the opposing side.
Negative, can’t-do presentations, on the other hand, do not give a mediator much to work with. If the mediator repeats those throughout the negotiations, the parties will feel they are being pressured into giving in and compromising, which is frustrating for everyone. Equipped with each side’s can-do evidence, however, the mediator can walk the parties through an appreciation of that evidence, enabling them to take an active and positive role in managing those risks. The mediator is able to promote positive steps each side can take to manage their risk instead of pushing negative reasons why they should concede. To be sure, not everyone wants to face up to adverse evidence and its potential consequences. But in allowing the mediator to press those inquiries, the parties, and especially their counsel, have freed themselves to focus on the evidence they discovered and developed to advance their respective cases. Everyone can put their best foot forward - and to take credit for the high-value work they have done - knowing the mediator will embrace those efforts to guide everyone toward a mutually beneficial outcome.
* In their very useful book, Getting to Yes; Negotiating Agreement Without Giving In, Roger Fisher and William Urey argue the first step in effective negotiations is to "separate the people from the problem.” I agree up to a point. As I explain in this post, negotiations have greater prospects for success if we avoid personalizing the problem - and I suspect that is really what Fisher and Urey mean. In many disputes, however, the legal and factual issues center on what happened to one or more of the people involved. This is true, for example, where there are claims of physical and emotional injury. Trying to separate those people from the problem could well be depersonalizing, which is something we should also aim to avoid.
