How Principles Found in Getting to Yes Can Help Provide Better Mediation Outcomes for Both Sides
Legal disputes are rife with emotions. It doesn’t matter if the parties are arguing over a property line, a business contract, or responsibility and compensation for personal injury or property damage. When these cases are mediated, it can be tempting for the mediator to ignore emotion and underlying interests and simply focus on getting everyone to agree to a dollar amount. This method might seem like it’s the most efficient, however, there’s a not-so-secret manual to negotiating that the best neutrals often refer to as “the mediator’s Bible.” It’s a book out of the Harvard University Negotiation Project called Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher, William Ury and Bruce Patton.
What does Getting to Yes teach?
The book wasn’t necessarily written for mediators, but its comprehensive set of best practices and principles for negotiating disputes is useful for even some of the toughest mediation challenges. In the book, the authors break down negotiation into two broad categories.
Positional vs. principled negotiation – which is better?
1 – Positional negotiation:
In positional negotiation, a person focuses on each side’s position and demands. For example, in mediation, one side demands a specific dollar amount in damages. A mediator who is taking a positional approach to negotiating will focus on just the monetary positions of both sides. The neutral might then become more of a go-between, ferrying offers back and forth between the parties involved in a dispute with the hope that eventually the two sides will meet in the middle and come to a settlement. However, merely focusing on positions is like assuming an iceberg is comprised only of the visible portion emerging from the water and ignoring the 90% that’s below the surface. This approach tends to engender suspicion and produce anxiety among the mediation participants.
2 – Principled negotiation:
Principled negotiation focuses more on that 90% that’s beneath the surface of any dispute. It’s hard on the problem and easy on the people, whereas positional negotiation is hard on people and soft on the problem. When mediators take a principled approach, they look at the mediation process as a collaborative effort to solve a mutual problem. Furthermore, taking this approach allows the parties in a dispute to reach an agreement that satisfies their underlying interests. In this style of negotiation, the mediator will explore why a particular position is being relayed. This extra step helps avoid the suspicion and anxiety that can build with positional negotiation, thus preventing the parties from reaching an agreement.
Getting to Yes sets forth numerous tips and techniques that can help both sides get what they want
To employ a more principled negotiation approach during mediation, it is useful to follow the book’s many tips and techniques for a more effective and collaborative approach to problem solving. These tips and techniques will help neutrals better understand the problem, i.e., underlying interests, and generate a broader spectrum of solutions to the problem. Some of the tips and guidelines are to:
- Encourage parties to put themselves in the other side’s shoes
- Encourage parties not to assess blame (when possible)
- Say things the parties (and their counsel) want to hear
- Make sure the parties participate in the process – create buy-in
- Try to understand each side’s emotions, i.e., fearful, worried, angry
- Recognize and acknowledge core concerns
- Recognize emotions as legitimate
- Allow people to vent
- Remain neutral and non-reactive during any emotional outbursts
- Look for shared and complementary interests
All litigation involves people, and people bring their own unique backgrounds, perspectives and emotions to a situation—including legal disputes. In addition to using the foregoing tips and techniques from Getting to Yes, a skilled mediator will consider additional “human factors.” These factors include cultural and religious backgrounds, risk tolerance, etc., and help all sides gain a deeper understanding of the dispute. The mediator can then use this deeper understanding to generate more options to address and satisfy the parties’ true interests and concerns. It doesn’t mean that everyone will get 100% of what they want. By focusing, however, on what each side really wants or hopes to gain, an agreement may be reached that addresses those interests and concerns and that is not simply based on “winning.”
A classic example from the book involves a story of two boys fighting over an orange. From a positional standpoint, the most obvious solution would be to cut the orange in half and give one half to each boy. In that situation, however, one boy may eat his half of the fruit and throw the rind away and the other boy throw his fruit away and use only the rind. Had a mediator listened to each boy’s underlying interests and needs, they might have divided the orange into fruit and rind, thus better satisfying both boys’ underlying wants and needs.
How can mediators use principled negotiation during mediation?
Experienced mediators who prefer a principled approach to mediation can begin to bypass positional posturing by introducing the principled approach in the mediator’s opening statement. Then, if a party gets off-track during negotiations, the mediator can ask questions about the party’s underlying interests and concerns, listen intently, and be patient.
A sense of being heard and understood will often put the mediation participant back on track. And if an attorney or party is still in a hurry, and regresses to positional negotiations, the mediator can suggest the mediation be adjourned with the agreement to meet again at a later date. The suggestion alone will often put a mediation participant back on track as he or she deep down wants to make the most of the mediation and reach a settlement agreement.
However, if a mediator gets a particularly intransigent party that won’t engage in any type of negotiation or has taken a position they won’t compromise on, then the mediator may be forced to declare an impasse. That almost never needs to happen. Sometimes, a mediator can call a side’s “bluff” by obtaining an agreement to continue for another half hour or hour. Often, progress will occur during that time that encourages the parties to continue mediating.
A mediator can also remind the mediation participants that regardless of the outcome of the mediation, almost all lawsuits wind up settling before trial, so why not just work to negotiate a settlement now, while everyone is present and focused on the problem. The mediator can emphasize avoiding the added expense and stress of a court case that may be ordered back to mediation again anyway.
The book stresses the importance of getting to the underlying interests and concerns behind what the parties want. One of the steps laid out in the book is to uncover each side’s best alternative to a negotiated agreement (BATNA). In the case of mediation, this often means a mediator is asking each party the question, “What’s your best day in court?” Then the mediator can explore what each side would have to prove in court to prevail on their position and the likelihood of their success. It is rare indeed that a party will have a 100% probability of winning on a particular claim or defense, thus opening the door to compromise. Often, that question and the discussion that follows is enough to get the parties back on track. At that point, everyone can work toward an agreement where both sides leave with at least some of what they want.
There’s a lot more in Getting to Yes than we can cover in a short article. Besides the principles discussed here, the book also contains useful advice for new mediators on better understanding negotiations and the roadblocks they might face. The book is a valuable tool in the arsenal of any neutral who desires to improve their mediation skills and mediation outcomes and help mediation participants come away from the mediation with satisfied interests. By satisfying interests the parties can achieve their goals and have a sense of resolution that allows them to move on from the conflict. In the end, that should be the goal, not just one side “getting the best” of another.
John McCorvey is an accomplished litigation attorney with an extensive background in commercial and real estate litigation, including an emphasis on creditors’ rights. He is also a Florida Supreme Court Certified Circuit Civil Mediator. His practice areas include: business disputes, creditors’ rights, bankruptcy law, real estate litigation, garnishment, commercial collections, replevin, foreclosures, and asset recovery.