Back To The Basics

I have recently been reading a number of relatively new books with claims of a revolutionary new way to approach negotiation. Without exception and without naming names, each new source has been insightful and a new perspective on the negotiation process that every one of us is involved in every day. Almost without exception, however, each new source compares itself to the classic negotiation manual “Getting to Yes,” first published in 1981.

I first read “Getting to Yes” 10-12 years ago after taking the mediator training course from Bob Beason & Rene Ellis (then part of the Duke Private Adjudication Center). I learned a lot from the book but since then it has sat on a bookshelf and then in a box in my basement. In order to fully appreciate the new material I will be reviewing here in the next few months, I thought it a good idea to start this weblog with a review of the classic. Before starting that process, however, let me state one of the few unequivocal statements you may ever read from a lawyer: if you are engaged in the negotiation process professionally and have not read “Getting to Yes,” you are doing yourself and your clients a disservice. Get a copy (there is a link to the book on Amazon on our resources page) and read it.

The implied (and sometimes express) point of every negotiation book is that you can learn to be a better negotiator and achieve better outcomes. There is no way to validate this assumption without defining what is meant by better outcomes. According to Fisher & Ury, any negotiation can be judged by whether it results in an agreement that is:

  • Wise;
  • Efficient; and,
  • Improves or at least does not damage the parties’ relationship.

A wise agreement is one that:

  • Meets legitimate interests of the parties;
  • Resolves those interests fairly;
  • Is durable; and,
  • Takes community interests into account.

The ultimate purpose of “Getting to Yes” is to define a method for better negotiations. That method, which the authors call principled negotiation or negotiation on the merits includes four basic points:

  • Separate the people from the problem;
  • Focus on interests, not positions;
  • Create multiple options for resolution; and
  • Insist on an objective standard or criteria.

All of these points are important but the second point is the most interesting initially because it is on this point that “Getting to Yes” distinguished itself from prior doctrine. It is also interesting for our purposes because so much of negotiation in mediation becomes positional because of the nature of disputes that have progressed to litigation.

So, what is positional bargaining and why are Fisher and Ury so critical of it? Positional bargaining will be the subject of the next post.