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NEGOTIATION
If war is continuation of diplomacy by other means, then negotiation is war waged with kisses.
At last, the parties start negotiating in earnest, though they may not yet be in the Zone of Possible Agreement. The whole of the previous part of the mediation has concentrated their minds on the problem, has filled them with the details of the conflict, and finally, with more or less help from the mediator, has convinced them that the reason they came to mediation in the first place, namely to resolve their conflict, is worthwhile achieving.
The previous stage may have taken five minutes, or five hours, but it must have led to a realization on the part of all concerned that, in order to achieve resolution of the conflict, or in order to achieve reconciliation in the case of a continuing relationship, they are going to have to change. They are going to have to move from their cherished positions. They are going to have to make concessions, because mediation is a voluntary, not a coercive process. The price of settlement is that both sides have to agree, and in order for them to reach agreement, they both have to move. That is what negotiation is all about.
Negotiation is work. Negotiation means business, literally. The word derives from the Latin neg, not, and otium, leisure; it is not leisure. The dictionary definitions are: 1. To deal or bargain with another or others. 2. To arrange for or bring about by discussion and settlement of terms. 3. To manage: transact: conduct. 4. To move through, around, or over in a satisfactory manner.
Negotiation theory tells us that there are, broadly, two types of bargaining. These are called (1) distributive, (2) integrative. These words do not well describe the process, but they are commonly used in negotiation terminology.
DISTRIBUTIVE BARGAINING takes place where there is a fixed amount or quantity to be divided between the parties. If a larger share is distributed to one party, then a smaller share is distributed to the other party. So any gain on the part of one side is met by a perceived loss on the other side. In a traffic accident case, whatever the defendant must pay is a loss to that defendant; the more the plaintiff is paid, the greater his perceived success. One side’s gain is the other side’s loss. This is called negotiating shares of a fixed “pie.” It is competitive, not cooperative.
INTEGRATIVE NEGOTIATION is conceived of in a different way. Here, the “pie” is not conceived as being a fixed quantity. Often, in business negotiations, for example, parties will brainstorm with each other, more cooperatively than competitively, in order to discover ways in which each can benefit more by the relationship, than if they decide not to do business. Here, the endeavor is to explore underlying interests and needs, and discuss ways in which each side’s needs and interests can be met cooperatively to the benefit of both.
This effort to “expand the pie” can sometimes be done in distributive bargaining as well. For example, it is not always just about the money. Sometimes, a party wants something valuable to him, of no great concern to the other side. In a partnership breakup, one of them was extremely concerned that she keep the five cats that they had cared for together – after the other party was persuaded not to use this as a bargaining chip, but simply to make the concession graciously, she was then rewarded by the gratitude of the first one, who was then prepared to make a significant concession of her own.
If parties can be persuaded to explore creative ways of satisfying each other’s interests, in order to achieve resolution, they and the mediator will find this a most rewarding exercise.
People negotiate in different ways. Some analysts like to classify them into poker players versus chess players. A poker player hides his hand, seeks to bluff and deceive, and often is only willing to discuss dollar numbers, and disdains to discuss issues, concerns or underlying interests. Chess players, as the game itself suggests, lay everything on the board, and although strategy is of course possible in chess, it is not possible to hide any piece. Chess is a game of analytical skill, and though great chess players also engage in emotional gamesmanship, it is easy to see that there is a fundamental difference between a poker style and a chess style.
It may be difficult when a poker player runs into a chess player. The process of negotiation itself becomes more difficult because of those very different styles. The mediator has to mediate the different styles of negotiation, in order to keep the process moving along. However, it is well to realize that these two descriptions, poker and chess, are just metaphors for what goes on in a conflict between human beings, whether expressed in the legal arena or not.
Negotiators are on a continuum from very competitive to very cooperative with those in the middle displaying both qualities. Studies show that within each of these various styles, some negotiators are effective and some ineffective. [Dispute Resolution and Case Studies, pp. 143-147 (1999)]
In real life conflicts, we are dealing with real or perceived wounds, slights, insults, losses, injuries and damages, and each such conflict has a history, which can be expressed in four different ways: (1) One party’s objective perception of what happened; (2) That same party’s subjective reaction to what has happened; (3) The other party’s objective perception of what happened; and (4) That party’s reaction to the event. While chess and poker are taken extremely seriously, they are both games, that do not generally involve the kinds of injuries, losses, betrayals, wounds and slights that are the common stuff of conflict.
Sometimes, people are quite unable to change their minds. That is why many people say: “Let the judge decide, let the jury decide, let an arbitrator decide.” They cannot bear to let go of a position, and it is important to realize that when a person takes up a position – “I will take $100,000.00 and not a penny less” – that bald statement of position is fortified, supported and buttressed by a whole array of intellectual arguments and emotional convictions.
Although the three bedrock principles of mediation are confidentiality, party control of outcome and voluntary participation, the mediator will often find that though parties may be present voluntarily, that does not mean they will move willingly. A not common expectation is that the other side will move, and therefore, although the mediator is not himself negotiating a resolution of the conflict, she needs to negotiate to some degree with each party, and with each attorney if one or more are present, in order to encourage, persuade, induce, or somehow get them to move closer to each other’s positions.
This process can be described metaphorically as a valley surrounded by hills, with broken terrain, strewn with boulders and rocks, some trees and other vegetation, with a clearing in the middle set up as a boxing ring. At first the parties take up their positions on opposing hills, and shoot at each other. Then they come down into the valley, and each takes up a secure position. One makes a dart towards a boulder that provides cover, while the other takes up a position behind a tree. Each position is given up unwillingly; each is fortified with emotional convictions and intellectual arguments. By a series of moves, large or small, the parties gradually approach the boxing ring in the middle of the valley. Finally, each climbs into the ring. This is the Zone Of Possible Agreement. To reach the ZOPA, they have already passed through several zones, namely:
1. Unwillingness to move from a fixed position; expressions of righteousness and blame
2. Talking to self, inward musing.
“I am a very foolish, fond, old man…” King Lear
3. Consideration of what worse might befall; this is focused attention on the Best Alternative To a Negotiated Agreement (BATNA).
“I am in blood stepped in so far that should I wade no more,
Returning were as tedious as go o’er.” Macbeth
4. Recognition of commonality with others; for many people, this is a great leap forward.
“I eat with bread, like you, feel want, taste grief, need friends.” Richard II
5. Offers exchanged that are “out in left field,” “out of the ballpark,” “in the wrong zip code,” that are perceived not as credible but ridiculous, even insulting. This is a dangerous moment; the skill of the mediator at this point is to keep things moving. One party makes a move that the other side perceives as unreal, and therefore as not an offer at all.
6. Offers that are within some range of credibility, but not perceived as reasonable.
7. Offers perceived as not unreasonable, but not within the Zone Of Possible Agreement
8. ZOPA; once the parties have reached this stage, it is more than likely that they will achieve resolution of their conflicts. This entire process may take place in as little as a couple of hours (and not all parties go through all stages), or it may take days.
The gap between 70 and 55 represents the ballpark, the zip code, the ZOPA. From this point onward, the parties can go for closure. However, do not assume this is the easy part; often, it is the most difficult. The last few yards may take as much effort and time as the first few miles. This is the 80:20 rule at work: 80% of the result is achieved in 20% of the time, and conversely, the last 20% takes 80% of the effort.
Parable Of The Orange
Teachers like to emphasize the difference between zerosum negotiation and interestbased negotiation. A zerosum negotiation is one in which each party’s gain is at the expense of the other party. An interestbased negotiation is one in which there is room for compromise so that the respective interests of all the parties can be substantially satisfied.
Therefore, teachers tell mediators always to look for the underlying interests, so they tell the parable of the orange. The parable of the orange states that two sisters get into a fight over an orange, because each wants to use the orange in a recipe. There is only one orange. When the mediator arrives, she asks the elder sister what she needs the orange for, and that sister replies that she needs the juice in order to bake a certain recipe. Then the mediator asks the younger sister what she needs the orange for, and gets the reply that she needs the orange peel in her recipe. So the brilliant mediator says to the sisters: “You can each have what you need, you can each satisfy your respective interests, all we need to do is juice the orange for the elder sister’s recipe, and the peel will be left over to be used in the younger sister’s recipe.”
This is a very exciting prospect, and if it were possible to settle all disputes in this manner, we would live in a better, happier world. However, in the real world, it is exceedingly seldom that the orange can be divided so neatly into the juice and the peel, to satisfy completely the interests of the disputing sisters.
The real world problem is hardly ever so tidy. In the parable, the sisters’ needs do not overlap at all. Both of them can be completely satisfied, with the added advantage that if one of them took the entire orange, part of it would go to waste, whereas in the parable the entire orange is used to best effect. Also, in real world disputes, there is often an underlying tension between the parties that has nothing to do with the orange itself. Such problems do not readily yield to simple problemsolving technique. For example, the elder sister might resent the younger for unstated reasons; she might not want to make any deal that works for her sister. The younger sister may know that the elder sister never cooks at all, and is only pretending to want to use part of the orange in order to frustrate the younger sister. The dispute over the orange may have nothing to do with the real difficulties between the two.
In practice, it will be found that some negotiations are singleissue, and that it is not possible to get to the underlying interests because there are not any. Also, where parties have a dispute to resolve before they can go on their separate ways, they are generally more interested in zerosum bargaining. But where the relationship between the parties must necessarily continue into the future, or where the preservation of the relationship is an important factor in the negotiation, it will be found that multiple interests may be brought into play, in order to fashion solutions broadly satisfactory to everyone.
Before people can even embark on a problemsolving mode, they need to spend time on two other factors: (1) how to position themselves in the negotiation so that they are taken seriously, and (2) how to get the other side into a position of being willing to cooperate in a problemsolving endeavor.
There are five assumptions that are often expressed in the ideal world, which are not necessarily found at all in the real world. They are (1) focus on the problem (2) figure out what you really want (3) be willing to engage in a mutual tradeoff negotiation (4) people will operate out of enlightened selfinterest (5) creative ideas carry the day.
It is not always possible to focus on the problem until a very considerable way into the negotiation. Parties come to negotiations with unspoken wants and expectations. Negotiators have established ways of doing things, which may conflict. People have certain standards of conduct that are unarticulated even to them. There are power differences between parties, which make it difficult for the parties to be honest and forthright with each other.
Parties are not always clear about what they want. Their goals may change during the course of the negotiation, as different facets come to light. When people focus on a particular situation intensely over a period of time, their attitudes can undergo considerable change, and while this is part of the goal of the mediator, it also means that their desires and wants may change as well. The parties may not always grasp the scope and implications of the situation that they are in.
Willingness to negotiate is a great thing, but it can itself be a problem unless both parties arrive at the point of being willing to negotiate at the same moment. If one party is willing to negotiate but the other is not, the first party feels not only at a disadvantage but her overtures may be rejected.
Parties may, and usually do, act out of their own perceived selfinterest, but the phrase, “enlightened selfinterest” is highly ambiguous. What is meant by enlightenment, in the context of the negotiation? Creative ideas would carry the day if rationality prevailed at the bargaining table, but it does not always do so. Feelings, attitudes and emotions intrude, as well as remembered slights and personal preoccupations.
There are all kinds of hidden needs, wants, preoccupations, concerns and the assorted baggage that is generally hidden from view, not only to the mediator but also to the other party, and even to the party herself, that get in the way of the process of getting to “yes.”
The mediator having developed her existing faculty of emotional intelligence soon comes to recognize that something else is going on; this is the subject of shadow negotiation.
Shadow Negotiation
A shadow is something that follows you around. It gets in the way. It is everything that isn’t being said. It is what is really going on, getting in the way of what should be going on. Whatever is not on the table is under the table. Most people in most negotiations spend most of the time groping under the table, trying to come to grips with it. It is the shadow. It is partly composed of John Bunyan’s “burden.” It has to be dealt with. Lots of people make lots of money explaining to other people how to deal with the shadow; usually they get it wrong. Carl Jung spent his career writing about it.
“Each of us has an original, you see, living somewhere underneath the shadow of our daily life. That life we live in the moving world is the dream life of the copy.”
- Four Souls: Louise Erdrich
This baggage train that is carried by nearly everyone into every negotiation constitutes a shadow negotiation, that continues sidebyside and simultaneously with the “real negotiation,” and is generally more important. Often the real negotiation cannot resolve until at least parts of the shadow negotiation have been resolved. The parties in a negotiation are in a relationship with each other, if only by virtue of the negotiation itself, and often by virtue of what has previously happened between them, and all these “shadows” are being negotiated at the same time as they try to solve what is perceived to be the difficulty between them.
During the course of negotiation, each party may additionally be negotiating with himself or herself. Parties secondguess themselves; they are overly optimistic or unduly pessimistic. They may sell themselves short. They may be unduly belligerent. They may be too talkative or not talkative enough. They may constantly get in their own way. There may be power imbalances that are almost impossible to negotiate, in the sense of ensuring a level playing field.
All these things must be taken into account when dealing with a real world negotiation. If it were not this way, there would be no need for mediators. The reason to have a mediator in the first place is not to come up with a bright, brilliant idea that solves the problem and ties it up neatly in a ribbon. The reason that the mediator is there, with all her expertise and skills, is to observe and recognize the multiple dynamics going on even in the simplest mediation, and do what is necessary to make it possible for the parties to achieve resolution.
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