The phrase “win-win” is now a part of American parlance. Most people have a good idea of what the phrase means in that it has to do with both parties in a negotiation or exchange of some kind leaving that completed exchange better off. In that regard, it is much like an economic transaction in a capitalist country. One person values a good or service more than a certain sum of money and another person values the money more than the good or service. A bargain is struck. Sometimes, however, it is very difficult to create a scenario where each side sees the benefit (the “win”) of entering into a negotiated agreement.
This is the basic concept behind what many consider to be the bible of negotiation, a classic book called “Getting to Yes.” The authors of this book have created something of a checklist to assist people involved in a negotiation — as all people participating in a mediation are — to assist them in reaching an agreement. I cannot recommend this book strongly enough. It is a small book, easy to read, and can be read in one or two sittings.
Here are the basic concepts from the text:
First, one must “separate the people from the problem.” Too often, as I learned when studying the psychology of conflict, people’s personalities drive the dispute and not the facts of the given problem itself. “The issue is not the issue” as conflict specialists like to say. This means that the real issue, say a slip and fall injury, is not being focused on by the parties involved but, rather, the people’s personalities involved in the accident. (Or, very often, the personalities of their respective lawyers. Let me be the first to admit that, as a litigator, I am far more cooperative with opposing counsel if they are cooperative with me. If not, then I am happy to engage in “nastiness” to the degree of the other side but always limited by the state bar’s code of ethics. This approach may help the other side snap out of their hostility or it may not. It is an option and it will be explored in another blog post.) In any event, as far as the authors of “Getting to Yes” are concerned, each side to a dispute should de-emphasize personalities and their respective likes or dislikes for the other person and focus on the goal. (Keep your “eyes on the prize” as the civil rights marchers used to say.)
Second, the parties need to “focus on interests, and not positions.” For instance, in a used car purchase, the seller may demand no less than $15,000 and the buyer may offer no more than $10,000. Impasse? Well, these are their respective “positions.” As part of focusing on interests and not positions, each side should ask the other “why are you taking the position you are taking?” In other words, what is the “interest” each side has in taking the position they are taking? Perhaps the seller needs to raise money for a vacation trip. Perhaps the buyer is a travel agent. You see where this is going.
This leads to the third point and that is “inventing options for mutual gain.” In the above example, it is entirely possible that the prospective buyer of the used car can help the seller craft a vacation that covers everything the seller wants to do for the price of $11,000. Maybe the buyer would be willing to pay $11,000 for the car. Inventing options for mutual gain takes some brainstorming. You may be saying to yourself right now “look pal, I just want to buy the damn car at the price I want to pay” and that is fine but approaching the problem in such a parochial fashion may not get you that sweet, classic Volvo 240 you’ve had your eye on for years.
Fourth, and finally, the parties in the used car example may simply not want to accept less than market value (the seller) or pay more than market value (the buyer) and that is the underlying basis for their respective positions. In other words, their interest is in maximizing their financial gain from the transaction. (You would be surprised that maximizing financial gain is not always the underlying interest of the parties.) In this example, the best way for the parties to reach agreement is not to each assert their position as to the correct market value but, rather, to turn to other third party sources as an objective reference point that both sides can respect. In the used car example, agreeing to the “Kelly Blue Book” value or the “Edmunds” value — or a combination of both — may likely get the seller and the buyer to the point of saying “yes.”
Keeping your cool, listening to the other side and thinking creatively may get a party to the goal he is seeking. As always, I am happy to answer any brief questions by way of email or telephone call. Let me know if I can help. Thanks for reading these blog posts.
