Just about the daftest thing I can do when negotiating is to adopt and maintain a position which means the other person has nothing to lose by going to court, going to war or simply continuing the struggle. When I was still practising as a lawyer I would read some proposal letters and wonder how whoever put the offer together ever imagined the terms would be accepted. Maybe the answer is that they didn’t. They were simply voicing what their own client dreamt of attaining. It wasn’t a serious offer as it ignored my clients legitimate expectations.
It seems to me only common sense that any settlement is only going to be reached if it allows each person to walk away with a feeling that it works for them, even if not on every level. It’s why we mediators suggest to couples that they try to focus on their own interests rather than positions- in straight forward language, what they really want to achieve which has to include a calculation of the costs, actual and emotional, of not settling.
I usually say to mediation clients right at the beginning that the most important element in negotiating is not to fix on what you want but to hear what the other person says about what he or she wants. We know what we seek. We know what our bottom line is. What face to face negotiation as in mediation affords is an excellent opportunity to find out what it will take to satisfy the other person.
We might not want them to be satisfied. We may well wish them confined to the inner circle of some private hell. The fact us however that, if we want it all resolved, we have to recognise that it takes two just as much as tangoing does. The reality is that for those relatively few couples who end up with a judge’s determination, that will represent a compromise between their two positions.
So when we mediators give our legal information and scribble all that stuff on our flip charts so that our clients can see in graphic terms what income and capital resources there are and how they can be made to work to meet both sets of needs, we are encouraging (we hope!) thought processes which will produce outcomes which work for both. I actually sometimes see the light bulb moment when a client who has been sunk in despair suddenly sees a possible solution which offers a viable future.
Negotiating will never have a successful outcome unless that outcome is worth the while of all involved. You only have to look at those world problems which seem incapable of resolution to understand that there’s no prospect of a settlement because either one side, or both, has no wish whatsoever to give any legitimacy to the aspirations of the other. In mediation, as in every other area of life, you will never get me to “Yes” unless you make saying that short but important word worth my while.Share: