Getting to Yes
By Alain B. Burrese
Negotiation is part of the fabric of everyone’s life, but even more so for the practicing attorney. Attorneys that possess strong negotiation skills are usually more productive and successful. Mediation is an extension of the negotiation process involving a third party. Therefore, attorneys acting as mediators, or advocating for clients during mediation, should consistently hone and expand their negotiation skills.
During a recent presentation at
the Cutting Edge Dispute Resolution Techniques CLE in
1. Lack of preparation of attorneys and clients,
2. Lack of knowledge regarding the mediation process, and
3. Frustration regarding negotiation and listening skills of the attorneys and parties involved.
This article is the first of a series of articles I will
submit to The Montana Lawyer to share with
In the fields of negotiation and mediation, one small book has had a tremendous impact. Published in 1981, Roger Fisher and William Ury’s book, Getting to Yes, introduced the concept of “principled” or “interest-based” bargaining. It is difficult to find a negotiation or mediation course that does not reference this landmark text. It is one of the most well-known works in negotiation literature and has been the focus of considerable commentary by legal scholars. Some of the book’s strengths are its discussions on separating the people from the problem and focusing on interests, rather than positions. This book introduced the term BATNA, your Best Alternative To a Negotiated Agreement, the standard against which Fisher and Ury claim any proposed agreement should be measured. It make sense, because using your BATNA as a standard, you can protect yourself or your clients from accepting terms that are too unfavorable and from rejecting terms it would be in your interest to accept. The lessons on principled negotiation are well worth the short amount of time it will take to read this book.
Principled negotiation, as espoused by Fisher and Ury, is an approach to bargaining that expands “the pie” rather than just dividing it as with distributive bargaining. Principled negotiation is the win-win approach that is also referred to as integrative bargaining. In contrast, distributive bargaining generally assumes a zero-sum position where plus one for me equals minus one for you. Both approaches, distributive and integrative have a place on the bargaining table. Having a clear understanding of both approaches enables an attorney to be more flexible when representing clients’ interests in negotiations and mediations. It is not uncommon for a party to take an integrative approach at the outset of a negotiation and switch to distributive bargaining sometime during the process. This is usually when the interests are being explored early on, and then actual negotiations regarding money become the focus at the end. When dollars are being discussed, distributive bargaining is most common. Sometimes a party will take the distributive approach when the negotiations commence and then become more integrative when a deal or settlement is not reached with the competitive method. The successful attorney prepares for negotiations and considers which approach, or what combination of approaches, makes the most sense for the matter at hand.
The classic example many mediation and negotiation trainers use to illustrate the differences between distributive and integrative bargaining comes from Getting to Yes and involves two sisters quarreling over a single orange. Each sister’s position is she needs 100% of the orange. Using a distributive approach, for one sister to gain some of the orange, the other must lose. The mediator or negotiator using a distributive approach may come up with a solution as mom did when she entered the kitchen and found the two sisters arguing over who should have the orange. Wanting to be fair to both of her daughters, mom the mediator proposed this solution. One daughter would cut the orange in half and the other daughter would choose which half she would receive. Over all, this seems like a fair and reasonable solution, and in fact, this is how many disputes are resolved and how many negotiations play out. Each sister gets 50% of what they wanted. The result achieves fairness and arguably a win-win solution. But can we do better?
Using Fisher and Ury’s principled approach, the focus is shifted to the sisters’ interests rather than their positions. This time, rather than just proposing a solution, mom the mediator seeks to understand and find out why each sister wants the orange. Mom discovers that one sister does not really even like oranges, but she wants to bake a Christmas cake which calls for the peels of one orange. The other girl wants to eat the fruit and plans to toss the peels into the garbage. Learning the interests of each person, rather than just knowing their positions, allows for creative and often much more satisfying results. By giving the peel to the first girl, and the fruit to her sister, each girl receives 100% of what she wanted for a truly win-win solution.
If only all problems were that easy to solve! If they were, many of us would be out of jobs. Real problems are often much more complex, and very rarely can you get 100% for each party, but many times you can do better than 50/50. It takes some effort learning interest based principles and incorporating them into negotiations and a willingness to look beyond the distributive solutions and expand “the pie” based on parties’ interests rather than positions, but the solutions and results obtained are well worth the time and effort.
For the attorney who wants to expand “the pie” of negotiation skills to better serve clients, Getting to Yes is a quick read with useful insights and techniques. The book has been criticized as neglecting a significant part of the negotiation process (distributive bargaining) and oversimplifying many of the troublesome problems inherent in the art and practice of negotiation. Nonetheless, it contains useful techniques and valid criticism regarding negotiation and should be read by every practicing attorney, especially those involved with mediation. It is especially useful for those who tend to only negotiate with a distributional or distributive approach. I encourage everyone to read this small negotiating gem and incorporate the problem solving techniques in their negotiations and explore mutual profitable resolutions in their mediations.
Alain Burrese is a mediator and attorney with Bennett Law Office, P.C. in Missoula, MT. He conducts mediations and settlement conferences as well as speaking and training in negotiation and mediation. He can be contacted at: www.bennettlawofficepc.com.
This article first appeared in "The Montana Lawyer" Dec-Jan 2006 issue. It is the first of Alain's Negotiation Theory and Practice columns.
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