Mediation - Carolina Mediations

Is Positional Bargaining Unavoidable?

July 30, 2015

One of the primary tenets of Roger Fisher and William Ury’s book “Getting to Yes” is that negotiations should focus on interests not positions, i.e., avoid positional bargaining. Positional bargaining takes place when each side takes a position, argues for that position, and reluctantly makes concessions from the opening position. Fisher & Ury instead contend that wiser and more efficient agreements are reached when the parties identify their underlying interests and not bargain based upon positions. Although Fisher & Ury are undoubtedly right, by the time most civil disputes get to mediation, it can be difficult to see the underlying interests because the positions have become so entrenched. In many cases the parties cannot identify their own underlying interests because they have focused on the the position for so long. In addition, even though the “principled negotiation” methods developed by the Harvard Negotiation Project and described in Getting to Yes

Are You Competitive or Cooperative?

April 23, 2015

As a 49ers fan I have been intrigued by stories about the former head coach, Jim Harbaugh. His brother, Ravens coach John Harbaugh, tells the story of how as a Little League baseball player Jim threw high and tight to a female batter on the other team. Apparently this caused some stir but Jim unapologetically explains that he had to because she was crowding the plate. For him the episode was simply a matter of competing to win. From the stories about great athletes it seems that many (maybe all) never stop competing. Everything is a competition. The point is that some people are more naturally competitive than others. In his negotiation skills course, Pepperdine Law School Professor Peter Robinson explained that some peoples’ natural instincts are to be competitive and others are naturally more cooperative. According to Robinson, neither is necessarily better than the other but recognizing our own

Amazing Face Reading

January 12, 2014

At a recent meeting of a trade group, the lunch time speaker was Mac Fulfer, a lawyer and professional face reader. So what is a face reader and why am I talking about it in a blog about negotiation skills. Mr. Fulfer contends that there are about 150 facial characteristics that can be read to learn useful insights about a person. Before you scoff at this as a simple parlor trick, I spoke to nearly a dozen people who had been “read” by Mr. Fulfer and all were amazed at how much he knew about their personality and how they approach problems or projects or their careers etc. I had my face read and am unable to dismiss this system as a gimmick. So why should a mediator or negotiator care? Without training I do not know how useful learning to read faces could be in face to face negotiations

Getting to Yes: Focus on Interests Not Positions

December 12, 2013

By far the most often quoted tenet of “the Method” is to avoid positional bargaining and instead focus on the underlying interests of the opposite sides. Fisher & Ury illustrate their point with the story of two people in a library arguing over whether a window should be open or closed. The opposing positions are open on the one hand and closed on the other. Hearing the argument the librarian comes over and learns that one party wants the window open for the fresh air and the other wants it closed to avoid the draft. Both people’s interests are satisfied when the librarian opens a different window. The illustration is useful and the point obvious once it is pointed out to us but how often are interests easily ascertained and separated from the stated positions. Fisher & Ury’s example also illustrates the point that to reach an agreement it is

Getting to Yes: Separate the People from the Problem

October 22, 2013

The first tenet of what Fisher & Ury call “The Method” is to separate the people from the problem. Although I think I understood their point when I first read the book, over time what stuck with me was the title not the underlying principal. As an advocate and mediator dealing primarily with business disputes, it is tempting to try and simplify the negotiation by trying to convince the parties that they should put aside the emotional component and focus on the cost-benefit of settlement as opposed to the BATNA (Best Alternative To a Negotiated Agreement). When we do this we may speed negotiations toward resolution but in many cases we only speed the case to impasse. “Getting to Yes” contends that every negotiator has two separate kinds of interests that must be addressed in the negotiation: 1) interest in the substance and 2) interest in the relationship. The point

Back to the Basics

September 22, 2013

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

Different Strokes

September 12, 2013

At one mediation I heard counsel accuse the plaintiffs of lying and engaging in “litigation lottery,” hoping for a big payoff. This mediation was over before it began. At another mediation, counsel for one party repeatedly accused the other party of lying under oath. That mediation resulted in a settlement favorable to the party making the accusation. So, what’s the difference? Should the opening session be conciliatory or adversarial? Like most answers to broad questions, it depends. In the first case, the accusing lawyer was addressing a large group of plaintiffs and attacking their integrity by impugning their motives. What he intended to demonstrate was that there was no factual or legal basis for their case but instead lost any chance of communicating by jumping to a jury argument that he could not possibly prove. In the second instance, the accusation was made through the juxtaposition of the opponent’s deposition

Decision-Making in the Face of Uncertainty

July 12, 2013

It is the rare successful mediation that does not lead one party or both to wonder whether they could have gotten more or given up less. What makes mediated settlement conferences so interesting (and difficult) is the need to make important decisions in a confined period of time without knowing what the other side is willing to accept or give up in exchange for peace. If both sides came into the mediation and stated honestly their bottom line from the outset there would be little need for mediation. Obviously this never happens and in most cases I have been involved with the parties do not really know their bottom line themselves at the outset of mediation. How can anyone be expected to figure out the other side if they cannot figure out their own position. Do good negotiators have a natural ability to sense where they can take the other

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