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Success in mediation requires a good negotiator to get past the parties’ positions to the underlying “needs, desires, concerns, and fears.” This post discusses how to identify the parties’ interests to facilitate a more successful mediation.
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
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
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
