The Role of Negotiation in Mediation

Today I would like to present information on the role of negotiation in mediation based on Roger Fisher’s and William Ury groundbreaking text, Getting to yes, and to lay out their central tenets and their relationship to conflict management. Fisher and Ury founded and continue to work at Harvard Negotiation Project and were pioneers in laying the groundwork for generations of mediators and negotiators.

In order to frame their four elements of negotiation, I need to point out that broadly, negotiating in any relationship can be position-based or interest-based as a dichotomy. Positions are stances or stands that people take that make them bound and determined to not budge on anything or to concede any point. It is adversarial in approach and has been around for centuries. Interests are more related to what a person wants to get out of a negotiation and interest-based negotiation has become much more preferable in the last few decades.

Fisher and Ury named their way of approaching negotiations as principled negotiation or negotiation on the merits. Their four elements or tenets are: (1) separate the people from the problem; (2) Focus on interests, not positions; (3) Invent multiple options looking for mutual gains before deciding what to do; and, (4) insist that the result be based on some objective criteria. I would like to unpack each of these tenets and give examples as to what each would like in a negotiation.

Separate the people from the problem. Negotiation in any situation is filled with emotion and many times, people’s egos and emotions are closely tied with their positions so it is critical to ensure that the focus is on the problem (i.e., conflict or dispute) and not on the personalities in the room. The people in the dispute are meant to unite for a common cause and work towards a solution to the problem rather than making it about themselves or conceding on each point rather than fight for a solution that works for all parties.

As an example, two siblings are in a dispute over an inheritance that their parents left them, a house, and one sibling, Joe, believes that it is unfair since his sister, Joan, has not spent much time with their parents as she lives across the country. In the negotiating room (i.e., mediation session), I discuss what the issue for both is and what are the interests, shared and individual, for each of the siblings.

Focus on interests, not positions. As a mediator, I need to help the clients focus on two kinds of interests: in the substance and in the people. Often the substance is entangled with the people so it is important to separate emotions from issues so that dealing with the people and their relationships becomes the focus. If the people can get to the point of openly discussing how they feel then the interests can be brought to the forefront. Additionally, peoples’ perceptions also need to be clarified as they can get in the way of open communication.

It turns out fairness is the issue for both Joe and Joan and one of their shared interest is honouring their parents since both are now deceased. Joe stresses that he was there every week as their parents’ lives came to end and he helped nurse them in palliative care and he points out that it was very hard on him. In other words, the obstacle for him is related to his emotions (i.e., the problem) rather than on his relationship with his sister and his parents (i.e., the people). Joan is concerned that Joe has presented a challenge for her since she has a job that requires that she reside in the city and she had very little time to get on a plane and visit with her brother and parents (i.e., the problem) rather than letting Joe know that she wants to make up for her absence and mend their relationship (i.e., the people). With Joe and Joan, the mediator starts by focusing on their shared interest, of honouring their parents so that negotiation can move forward and both siblings can take each other’s perspective on the inheritance and discuss opening their perceptions of each. The mediator would also ensure that Joe and Joan were aware of their best alternative to a negotiated agreement (BATNA) which they would not share with each other but it would crucial that they were cognizant of what their “walkaway” point would be should negotiations break down.

Invent multiple options looking for mutual gains before deciding what to do. It is very challenging to come up with an optimal solution to a problem when emotions are high, distrust is evident, and perceptions thrive. Creativity, rationality, and cooperation tend to go out the window when we want to win at all costs. To combat these confounding variables, the people involved can set aside some time to come up with optimal solutions to their shared interests. One way to do generate multiple options is to use the Circle Chart advocated by Ury and Fisher. You start with what is actually happening (Step 1: Problem) right now and try to decide what the problem is, what are its manifestations, and what are the facts that you do not like when compared with preferred situations. Then you examine the theory of what the problem is, categorize the manifestations, suggest some causes for those manifestations, and note any barriers for resolution (Step 2: Analysis). In the third stage (Step 3: Approaches), the mediator assists the clients in exploring possible strategies and theoretical cures so that broad ideas of what could be done are looked into by all parties. Once those approaches have been laid out, the clients and mediator work on what might be done and what steps could be taken to deal with the central problem or problems (Stage 4: Action Ideas). The Circle Chart model is one of many ways to inventing multiple options for mutual gains.

In the example with Joe and Joan, I would begin with a brainstorming session to generate some possible options after having had them commit to thinking through by themselves what they wanted out of the session. I would most likely have them seated side by side so that they could see the board (I usually use chart paper or a projector-connected tablet), and keep the focus on that part of the room. Then I would remind them of the basic guidelines for brainstorming which might include no criticism of ideas, saying what comes to mind as they build on each other’s ideas and present their own, encouraging them to let their imaginations loose, and ensuring that all ideas are encapsulated and summarized into manageable chunks (usually attributed to the mediator as that is part of his skill set). Once the list is exhausted, the three of us would then “star” whichever ideas are worth pursuing and then decide on a ranking list for the purposes of discussing. With the ranked list, which Joe and/or Joan might change, we would then discuss why each believes that the idea is worthy of unpacking (e.g., honouring parents) and proceed with discussion. The back-and-forth would occur for as long as needed and then we would end up with a manageable list of ideas to discuss further in the mediation session. After that, mediation and negotiation would begin in earnest until we begin to come to resolution on one idea or on several.

Insist that the result be based on some objective criteria. When getting to a resolution, it is important that the parties apply objective criteria to the suggested resolution rather than relying on one person’s or even the mediator’s opinion. That is, there needs to be independent standards applied that might come from law or policy, industry trends, or past practice which is where the mediator can be helpful but so can the clients as fairness is something in which parties are usually interested. In other words, they are trying to use standards independent of will or desire and to be as far removed as possible from emotion.

In the case of Joe and Joan, it is likely that the mediator would negotiate towards the objective criteria of equal treatment and moral standards since the desire of their parents was clear in that they wanted the house to be shared as part of their inheritance. The issue of fairness and the parents’ wish would have been uncovered in earlier negotiations so these two criteria would be a natural ending point for the two siblings. It might end up that the two sell the house and split the proceeds evenly or that Joe lives in the house and “buys out” Joan based on the average of three realtors’ assessed value (another set of objective criteria) or they decide to rent out the house and divide the rental income according to objective criteria (i.e., Joe might receive a larger portion since he would be in situ for any problems or day-to-day operations). In the end, using objective criteria, jointly devised, allows both parties to walk away feeling like they have both benefited: a win-win situation.

Next week, I will discuss some more ideas for negotiating agreements as an important part of a mediator’s job including the importance of fairness.