When I started working as a commercial litigation solicitor in a small firm in 1996, the partner suggested that I read “Getting to Yes: Negotiating Agreement Without Giving In” by two Harvard academics Roger Fisher and William Ury. It was first published in 1981.
Even as a young lawyer I certainly understood the power of negotiation and certainly understood that most litigious matters settle before they are determined by a court. I now know (but probably didn’t fully appreciate at the time) that I was a traditional adversarial negotiator. Sure, there was compromise and terms were negotiated but really one party effectively won at the expense of the other.
Principled negotiation
Fisher and Ury introduce the concept of principled negotiation which is a more collaborative approach to resolving disputes. They set out four key principles of effective negotiation:
1. Focus on interests, not positions: Instead of getting stuck on rigid demands, explore the underlying needs and concerns of all parties. This approach opens up more possibilities for creative solutions that satisfy everyone’s core interests.
One story often told is about two children arguing over a chocolate bar. The first inclination is for an adult to cut it in half and distribute it. However, if anyone asked the children they would discover that one wanted the wrapper (which contained details of a competition that they wanted to enter), the other wanted the snack. It was possible for both children to get precisely what they wanted.
2. Separate the people from the problem: Recognise that emotions, egos and personal dynamics can interfere with finding solutions. Relationship issues should be addressed directly, respectfully and separately from substantive ones. Negotiators can maintain a productive focus and avoid personal conflicts from obstructing the process.
3. Invent options for mutual gain: Negotiation shouldn’t be a zero-sum game where one party’s gain is another party’s loss. Brainstorm a wide range of potential creative solutions before deciding on one. This expands the “pie” of available resources and increases the likelihood of finding win-win outcomes.
4. Insist on using objective criteria: When interests conflict, use fair standards and impartial procedures to resolve differences. This helps avoid a destructive battle of wills and produces outcomes that both sides can accept as legitimate.
What’s a BATNA?
Another thing in Getting to Yes which took me a long time to understand was the concept of a party’s Best Alternative to a Negotiated Agreement (BATNA). In preparing for a negotiation if a party can identify their BATNA it gives them a clear sense of when to accept a deal and when to walk away. There is no point in accepting any offer which leaves someone worse off than their BATNA.
Getting to yes
Getting to Yes is easy to read and not very long. It has lots of real world examples and practical advice. It also emphases the importance of active listening, effective communication and empathy, all of which help to build trust and encourage constructive interactions.
As I have gained more experience as a lawyer and now as a mediator, I have become more committed to principled negotiation.
If you only ever read one dispute resolution book in your lifetime, my recommendation is that it should be this one.
Creative commons acknowledgment for the cartoon.