“GETTING TO YES;” A RE-EVALUTION

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“GETTING TO YES;” A RE-EVALUTION

 

 

“Getting to Yes” by Roger Fisher and William Ury, first published in 1981, is perhaps the book on negotiation and dispute resolution best known by those outside the field. While it remains an insightful and highly readable guide to certain kinds of negotiations, I recently re-examined it, to consider how well it applies (or not) to a certain class of cases we frequently see in the Civil Mediation practice here at The Mediation Group. 

 

Given the modest length of this article, I can only summarize very briefly the four major principles of negotiation set forth in “Getting to Yes:”

 

1.    Separate the people from the problem

2.    Generate options for mutual gain

3.    Insist that the result of the negotiation be based upon some objective standard

4.    Focus on interests, rather than positions.

 

Of these, it is the last one (“interest-based bargaining”) that is the best known.  The authors give a number of examples, including the successful negotiation between Israel and Egypt over the return of the Sinai, captured in 1967.  In the initial positional bargaining, Egypt insisted that

every inch of captured territory be returned, while Israel demanded that it retain some portion.  Essentially, the “positions” were dueling maps.  In terms of interests, Egypt’s was for sovereignty over land that had been Egyptian since the time of the Pharaohs. Israel’s stated goal was security (not wanting Egyptian tanks on its border). The obvious solution—at least it became obvious at the Camp David negotiations in 1978—was a demilitarized zone in Sinai, where the Egyptian flag could fly, but from which Israel was protected against invasion.  The resulting peace treaty has held for more than forty years.  A contemporary example (a negative one) is Trump’s loud insistence upon a border wall, and the Democrats’ equally fervent rejection of it. A negotiation based on interests might focus on what each side really needs and wants for “border security.” Of course, there is no way in the current political climate to predict whether there was (or is) a deal waiting to be made.  It is reasonably clear, however, that the binary nature of the debate (wall versus no wall) was not helpful. 

 

While some have arguedthat the distinction between “interests” and positions” mayitselfbe excessively binary, thereThereis much sound and practical advice in “Getting to Yes”, but I would submit that it is more broadlyparticularlyapplicable to those cases in TMG’s family and divorce practice and our organizational, and civil mediationpractices in which .  For those cases and situations, there are often multiple issues and options in place, and more frequent opportunities for “expanding the pie” or the proverbial “win/win.” Of course, we see many kinds ofSome suchcases with multiple issues, and “pie-expanding” potential in the Civil practice as well. Some examples areincludelandlord-tenant disputes, break-ups of professional practices, and other forms of “business divorces,” and the broad range of disputes arising from family businesses, such as inter-generational disputes. My focus here, however, is on a particularthatclass of cases frequently seen in TMG’s Civil Mediation practicewhere the issues may present as more one dimensional, and where the interplay of interests and positions may be harder to read. A veryOne suchcommon scenario involves a severely injured plaintiff with a liability insurer across the table.  In that situation, it is generallyit can bedifficult to tease out any “interest” that is separate from the parties’ respective “positions.”  Simply stated, the plaintiff’s goal is to squeeze out every possible dollar from the defendant, and the defendant/insurer, conversely, wants to pay out as little as possible.  The, calling into question the applicability of theconcept of “interest-based bargaining”just does not apply..  Moreover, if there is an insurer involved, there is little potential for (or interestMoreover, if there is an insurer involved, there is likely limitedpotential for (or interest in) in) any continuing relationship between the parties, which aggravates the binary nature of the negotiation. There are, of course, situations we deal with where aOften, though, on digging deeper, one might discover that theplaintiff has non-monetary concernsas well, such as a desire to have a defendant undertake some corrective action, to avoid a recurrence of the accident that injured the plaintiff.  But that is the exception, not the rule. Also, there are frequently interests that other participants in the mediation may have, separate from the negotiating positions of the parties. These might include an unstated conflict between attorney and client, where the plaintiff wants the largest possible recovery, and his attorney may have an ulterior motive in an early settlement, in order to minimize the time he or she needs to expend.  The opposing attorneys may have an interest in preserving a long-standing relationship between them, while neither expects to have any continuing contact with their respective clients when the case is over.In sum, while the parties’ respective positions may be front and center, there may be more subtle interests entangled in the background.

 

It is significant, I think, that Fisher and Ury were writing in 1981, years before the development of civil mediation practice, as we know it now.   In the 1960’s and 1970’s, Roger Fisher was busy teaching Civil Procedure and was not yet widely known in the Dispute Resolution field.  Dispute resolution firms such as TMG did not exist, and to the extent dispute resolution existed at all in the world of civil litigation, it was in sporadic court programs, and it was very much “alternative.”  The principles that are set forth in Getting to Yes applied well, however, to many types of “community mediation, which generally did not include attorneys.  What the authors could not envision, therefore, was the pattern that has evolved in current mediation practice, with an initial joint session, followed by separate caucuses, with the mediator shuttling between rooms.  In thinking about those developments, in the context of this re-evaluation of a seminal book, I came to consider the way in which the entire “choreography” of contemporary mediation undercuts the sort of negotiation that the authors advocate.  Indeed, one could say that one of the mediator’s tasks within this system is to convey a series of “positions,” hopefully converging toward a mutually acceptable figure.  The very design of the system encourages extreme positions, at least initially. In To mitigate this tendencyto overlook parties’ interests in favor of dealing only with their stated positions, inmy own practice, which often includes what I refer to as “negotiation coaching,” I try to have helpful input into those stated positions, asking, for example how one party might envision the reaction in the other room. But the fact remains that we are usually dealing with “positions” and not “interests,” at least in the class of cases which I am addressing, characterized by a demand for money only (often for personal injury or property damage) and frequently with a liability insurer as the real party in interest for the defense.  In ruminating about this “choreography,” I wonder if today’s mediators, having been trained in certain patterns of how to mediate a civil case, have inadvertently undercut the kind of interest-based bargaining that Fisher and Ury advocate.  After all, we promote the flexibility of mediation. In my own practice, I no longer automatically prescribe traditional opening statements in the initial joint caucus (having learned in national meetings that that practice is rarely followed by mediators I have met from California and Washington.)   While I think opening statements are still useful (and they remain my default), I now consult with counsel in advance for their input as to whether opening statements might be counter-productive.  Along these same lines, I now wonder whether a more extended joint caucus, with a free-flowing conversation (given the right combination of personalities and issues) might do more to foster the focus on interests as described in “Getting to Yes” than the current practice of shuttle diplomacy.

 

To conclude, there is still much to be learned from “Getting to Yes,” and “interest-based bargaining” is an excellent way to think about negotiating.  For many of our cases, however, the “win/win” or “expanded pie” is still something of a myth.  The goal in such all cases, regardless of whether distinct interests are immediatelyapparent,is to help mediating parties achieve a settlement that is well negotiated, and fairly arrived at, yielding a result that both sides can willingly accept (knowing that continuing to litigate involves cost, risk and delay.) And while neither side may leave feeling triumphant, that’s often as close as we can come to “win/win.”  Having said that, however, I will continue to think about ways in which we as mediators can continue to help the parties to understand and focus on their true interests, and not undermine that goal by inflexible procedures.