One mark of a good negotiator is that they analyze the other party carefully to learn about their interests and concerns. By doing so, they are able to work toward addressing those interests while at the same time seeking to satisfy their own. Seasoned mediators and negotiators have learned this and may find these concepts somewhat elementary, but we all need a periodic refresher.

A common theme or thread is found in the best selling books on the topic of negotiation.¹ That is, to create a "win-win" result. The pioneers of this concept recognized their chances of success in negotiation were significantly enhanced by finding a way to satisfy the concerns and interests of the other side. As this concept has grown in popularity, we see books such as those entitled, "The Power of Nice."²

Traditionally, the approach of the parties in negotiation was to be the "winner." This meant to beat the other side and obtain more of what was at stake. This completely competitive approach meant that, to do your best, the other side was left in a pile of rubble while you walked away with all the goods. Tough negotiating tactics were essentially warlike.

These guerrilla tactics proved successful in many instances but, as in war, there is normally a high price to pay. The costs expended on the dispute are typically greater and relationships are left in ruin. This fallout also tends to bleed into the community or business world of the parties. Plus, the winning party may have had the stronger position or upper hand this time but what about next, especially when dealing with the same adversary or someone from their circle?

Eventually it was discovered the best test of success in a negotiation was whether each party was able to come out with what they desired. Making this the ultimate goal in every negotiation leads to greater success. Competition will remain present but where effort is expended in attempting to understand and meet the needs of the other party, the opportunity for agreement and party satisfaction, is enhanced.

We often hear the terms "going outside the box," "going below the line," and "expanding the pie," referring to the "win-win" approach. This is easier in some circumstances than in others. In a routine personal injury claim, ways to create value seem limited, although creative approaches are still present such as "structuring" payments or incorporating an apology. There is also the story, frequently repeated, of a claim involving the death of a child. The settlement included a public monument in a park in honor of the child. In another negotiation, one condition of the settlement was for the defendant company to incorporate specific safety measures to avoid similar accidents in the future. The plaintiffs had stated repeatedly they wanted to see that nothing like what happened to them was repeated. In these two instances, emotional needs (generally overlooked) had to be addressed to reach agreement. Stories such as these abound among mediators.

We find the ground more fertile for increasing value or "adding to the pie," when situations and relationships are more complicated or multifaceted. We should remember also there are usually interests hidden from view. It is only by studying and exploring that these come to light. There are many examples of negotiators and mediators having success in seemingly hopeless situations when the real root of the dispute and hidden interests of the parties were uncovered.

It's helpful to examine the principles behind "interest-based" negotiation and the manner in which these are successfully applied. There are essentially seven elements:³

1. ALTERNATIVES: The things we can do without other party's agreement.
2. INTERESTS: Needs, concerns, goals, desires and fears that have driven us to negotiate in the first place. Once these are identified, they will establish our demands.
3. OPTIONS: The range of possibilities we can think of that we and the other party may agree on. "Brainstorming" is a good approach to generate a greater list of these.
4. CRITERIA: The legitimacy of how our INTERESTS are perceived. This is the perception of fairness by the parties as determined by outside standards or criteria such as law, precedent, industry standards, expert opinion, market prices, etc.
5. COMMUNICATION: The medium through which we negotiate; exchange thoughts, feelings, preferences or other information through speech, writing, physical cues or other actions.
6. RELATIONSHIP: The connection between two or more parties associated with the negotiation.
7. COMMITMENT: The agreement eventually reached about what the parties have decided they will or will not do.

What we seek from an interest-based negotiation is an agreement which does all of the following:

• Is better than our best ALTERNATIVE to a negotiated agreement ("BATNA").
• Satisfies our INTERESTS.
• Is the best of the many OPTIONS we have identified or generated.
• Is legitimate in terms of being supported by objectively fair CRITERIA.
• Identifies COMMITMENTS that are clear and realistic.
• Strengthens or at least does not harm, the RELATIONSHIP.
• Reflects productive and appropriate COMMUNICATION.

Here is a very elementary example to illustrate the above:

My brother, Richard, has fourteen and sixteen year old daughters, Merideth and Megan. There is one orange left in the kitchen and both want it. They race down the stairs and the fourteen year old (Merideth) grabs it. Richard appears and they both turn to him to solve the problem. What is the natural response? What does he do?

1. The ALTERNATIVES: For Merideth - run out with the orange so she gets it all; share it with Megan; ask for money and take the time to go to the store and buy another. For Megan - use force and grab the orange away, so she gets it all; share it with Merideth; ask for money and take the time ....
2. The INTERESTS: Keep dad happy; avoid more conflict and potential for violence; keep sister happy because they need each other from time to time; avoid taking the time to go to the store; a showing by dad they are loved and respected; get "one up" on their sister; get the orange.
3. The CRITERIA: Merideth - I got it first; Megan always gets more than me; it's my turn to have dad favor me, etc. Megan - I'm the oldest; I'm on a diet and need it more than Merideth, etc.
4. The COMMUNICATION: Through face-to-face discussion, beginning in a heated fashion.
5. The RELATIONSHIP: Sisters and father
6. The OPTIONS: Divide orange or ??? Can more options be developed? Options need to be generated or identified by examining and learning the interests of the parties. When it became known that Megan wanted to eat the orange and Merideth wanted to use the peel to make a cake, it was discovered each could have all they wanted from the orange.
7. The COMMITMENT: To divide the orange by Megan getting the orange and Merideth getting the peel.

The same principles apply in complex disputes with a great deal at stake and a seemingly hopeless end in terms of an amicable resolution. Moving up a step in complexity, here are two recent examples where the principles were applied successfully:

A negative turned positive: The parties were embroiled in litigation over the leasing of farmland. The owner asserted he charged a lower lease rate because it had been understood the lessee would be using the owner's services in handling the farmer's crop when harvested. However, the farmer retained another firm for these services. The owner, who lost this business, sued for damages, alleging a number of theories including fraud. Both men were very proud and convinced they were in the right. There had been a long relationship between the two and the owner felt he was "stabbed in the back" when his farm services were not utilized as he expected. By the time they reached mediation, the parties had spent a great deal on fees and costs and appeared willing to spend more to go through trial. It was obvious the case was not solely about money. Pride and bad feelings and a need to prove a point, were continuing to drive the dispute. There was no way to convince the farmer to pay the owner and no way the owner would take less than the loss he calculated he suffered. Ultimately, the case settled by the farmer paying to charity the amount demanded by the owner. They decided it was best to turn their negative situation into a positive one, using their money to benefit others and still walking away with their pride and principles in tact.

A simple solution that would have been overlooked: My daughter asked us to co-sign for her cell phone to save her from having to post a large deposit. We said "no" (at first). She could not understand why. We had not explored each of our concerns and interest. Susan had been late with a few her installment payments and we did not want our credit to be affected. She wanted the phone primarily for safety reasons, not just to converse endlessly with friends (the latter being our suspicion). Neither of us wanted to get into an argument later if things did not go well with her paying the bill. The easiest way to avoid a problem (we thought) was for us to say reject her request out of hand. That impacted our relationship. We worked together to devise a plan that worked for all of us. We wanted her to be safe also. Susan was added to our cell phone plan and gives us a daily log of hours. If she reaches the limit, she surrenders her phone until the next month.

Describe how the seven principles applied to these examples. Think of some recent mediations or negotiations in which you were involved and how you could have handled them more effectively. See how easy it is to lapse into complacency when it comes to utilizing these techniques?

CONCLUSION:

More is involved in a successful negotiation than competing for portions of a fixed pie. A primary focus must not only be on what you or your client seek but what you are able to learn of the concerns and interests of the other side.

Never assume you know these in advance. Think of an ambulance double-parked on a crowded street during rush hour, and think of a Rolls Royce doing the same. In which instance would you find contempt for the driver? But what if you learned the ambulance driver was buying donuts and the Rolls Royce driver was helping an elderly woman who had collapsed. Perceptions without adequate information can be unreliable. Do what you are able to learn; don't rely on your assumptions.

Next, determine where interests and goals may coincide and where they are opposed. From here, effort is necessary to prioritize and work on attempting to meet these needs and concerns in creative ways. If this does not result in complete agreement, consider trade offs that can me made in which you surrender things of less value to you in order to receive that which you are seeking. For example, an employer may provide more comprehensive health insurance that you need at less cost than increasing your salary to the point you seek. You settle for less salary but obtain more in benefits to make up the difference.

Once you know of the concerns and interests of the other party finding ways to meet or satisfy them, at least in part, will improve your success in negotiations and mediation. When dividing a fixed pie, each piece taken by one leaves less for the other. For greater success, follow the trend of working toward expanding the pie so that both parties are able to obtain more and suffer less. An adverse party will more often give when something is given in return, as opposed to reacting to threats or challenges. The key is learning what is important to give in order to receive. Collaborate more, compete less, and be creative. Greater success will follow.

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¹ H. COHEN, You Can Negotiate Anything, Bantam; URY, BRETT & GOLDBERG, Getting Disputes Resolved, Jossey-Bass; FISHER, URY & PATTON, Getting to Yes, Penguin; URY, Getting Past No, Bantam; STONE, PATTON & HEEN, Difficult Conversations, Viking; SHAPIRO & JANKOWSKI, The Power of Nice, Wiley.

² Supra.

³ From SERA Learning, "Program for Young Negotiator s- Training Notebook"From SERA Learning, "Program for Young Negotiators - Training Notebook"