The Man Who Led Us To Yes


by Tony Dempsey

April 2013

Tony Dempsey The recent passing of Professor Roger Fisher, the undisputed pioneer of modern negotiation and dispute resolution, prompted me to reflect back to 1997 when I headed up a team of negotiators that secured world rugby’s first ever collective bargaining agreement. It was the culmination of two years of tough negotiations stemming from a player-led revolution that saw the game turn professional – literally overnight.

The negotiations were a test of will between both the players’ advocates and the administrators. The issues were complex and the passion high on both sides. The negotiation was punctuated by court action and an extensive media campaign aimed at unsettling the newly established players’ association. Initially, the two parties were irreconcilably opposed on the key issues and an acceptable outcome to either side looked impossible.

The players union and the governing body of rugby took opposing positions and defended them until the death. A familiar catch cry for the players’ position at the time was: “The players are underpaid and deserve a bigger slice of the pie. Without the players there is no game.” The governing body of the sport took the position that limiting labour costs was important for the future growth of the game.

Ultimately, an outcome was achieved, and the collective agreement was described by a leading industrial relations academic as the best of its kind in Australian sport at the time.1 There were, however, significant repercussions from that negotiation, and it would take many years for the damaged relationships to repair. I never forgot the lessons I learnt from that experience, including the value there would have been in having a wise conciliator present to guide parties through tough negotiations.

Fisher’s death also prompted me to revisit the much celebrated book he coauthored with William Ury in 1981, Getting to Yes – Negotiating an Agreement without Giving In. Apart from being a bestseller with over three million copies sold worldwide and being reproduced in over 23 nations, the book’s principles and teachings have withstood the test of time and the ever-changing way business is conducted today.

Fisher was involved in some of the biggest negotiations and disputes of his era and is attributed with “directly and materially taking multiple steps toward peace in the Middle East, including Sadat’s trip to Jerusalem and the Camp David summit that led to an Israeli-Egyptian peace treaty; peace in Central America and especially in El Salvador; the resolution of the longest-running war in the western hemisphere between Ecuador and Peru; the breakthrough that enabled resolution of the Iranian hostage conflict in 1980; a fundamental reshaping of the US-Soviet relationship; and the negotiations and constitutional process that led to the end of apartheid in South Africa”.2

The book bases itself on the premise that negotiators should avoid bargaining over positions and locking themselves into those positions. Instead, it argues that parties should focus on identifying their own interests and those of the opposing party and developing creative options that meet those interests. As Fisher and Ury say, “The more you clarify your position and defend it against attack, the more committed you become to it. The more you try to convince the other side of the impossibility of changing your opening position, the more difficult it becomes to do so.”3

Despite the praise the players’ union received for that first collective agreement, such approaches rarely produce a wise agreement that meets the legitimate needs of the parties. The agreement that was reached might have been the sort that Fishy and Ury saw as “reflect[ing] a mechanical splitting of the difference between the final position rather than a solution carefully crafted to meet the legitimate interests of the parties.”4

Fisher and his co-author instead advocate an alternative style of negotiating known as the interest-based method, which focuses on four key and fundamental elements that define most efficient negotiations.

Isolate the Problem.

First, they espouse separating the people from the problem (meaning people should come to see themselves as working side by side, attacking the problem, not each other). They argue that dealing with a substantive dispute and maintaining a good working relationship need not be conflicting goals. Good negotiators (and conciliators for that matter) can understand the perception the opposing party has of the situation by putting themselves in the shoes of the other party.

A good conciliator has the ability to recognise and understand the emotions and needs of each party. They acknowledge such emotions as being legitimate and don’t belittle them or ignore them. By allowing the venting of anger and frustration, a good conciliator knows that the negotiating parties are obtaining a psychological release that sets up a fertile environment for reaching a solution. “A basic fact about negotiation, easy to forget in corporate and international transactions”, Fisher and Ury say, “is that you are dealing not with abstract representatives of the ‘other side’ but with human beings. They have emotions, deeply held values, and different backgrounds and viewpoints; and they are unpredictable. So are you.”5

Objective Standard.

The second element of good negotiation is the ability to focus on interests, not positions – meaning generating a variety of possibilities before deciding what to do and insisting the result is based on some objective standard. As the authors of Getting to Yes put it: “Interests motivate people; they are the silent mover behind the hubbub of positions. Your position is something you have decided upon. Your interests are what caused you to so decide.”6

I can’t honestly say that, back in 1997, any of the parties to the collective negotiation were exploring in any great depth each other’s needs. If they had done, they would have quickly realised that, aside from money, the issues driving the negotiation were recognition (for the players’ union) and control of the game (for the administrators). If we had had someone able to help us identify and deal with the real issues, I dare say our negotiation would have been far more efficient and wise, and the relationship between the two organisations much healthier.

The key for a good conciliator is to be able to look beyond each party’s position and identify the shared and compatible interests, as well as conflicting ones. I see only too often people in negotiation automatically assume that “the other party’s” stated bargaining position is the same as that party’s interests. The truth is that a stated position rarely reflects the party’s interests. Often, people think a dispute is simply about the payment of money, but quite often other interests are at play.

“A position is likely to be concrete and explicit. The interests underlying it may well be unexpressed, intangible and perhaps inconsistent.”7

Creative Options.

The third crucial element for a constructive negotiation is the ability of the negotiators (and conciliators) to invent options for mutual gain well in advance of reaching agreement. Quite often, negotiators see their role as narrowing the gap between stated bargaining positions rather than broadening the options available for settlement. Such approaches stymie creativity and lessen the chance of a wise agreement.

Fisher and Ury said that, “To invent creative options ... you will need (1) to separate the act of inventing options from the act of judging them; (2) broaden the

options on the tables rather than look for a single answer; (3) to search for mutual gains; and (4) to invent ways of making their decisions easy.”8

They also cautioned against false assumptions: “ ... [a] major block to creative problem-solving lies in the assumption of a fixed pie: the less for you, the more for me. Rarely if ever is this assumption true. First of all, both sides can always be worse off than they are now ... Even apart from a shared interest in averting joint loss, there almost always exists the possibility of joint gain. This may team the form of developing a mutually advantageous relationship, or of satisfying the interests of each side with a creative solution.”9

Credible reference points The final element of a good conciliation is to insist on the use of objective criteria as a reference point (meaning any agreement reached should be reached independent of the naked will of either party’s negotiator and referenced to some objective standard such as market value, expert opinion etc).

Fisher and Ury put it succinctly: “In short the approach is to commit yourself to reaching a solution based on principle, not the mettle of the parties. Be open to reason, but closed to threats ... at a minimum, objective criteria need to be independent of each side’s will.”10

Objective criteria they cited include market value, precedent, scientific judgment, professional standards, efficiency, tradition and costs.

When negotiating a collective bargaining agreement, I would often draw reference to the precedents set in other sports’ collective bargaining agreements, such as the AFL and the US’s NFL and NBA as independent objective criteria to assist in negotiating various issues such as use of players’ intellectual property, occupational health and safety, the percentage of games revenues to be shared by players, employee incentive schemes, minimum salaries and funding for retirement player development schemes.

The key is to agree on criteria which makes sense for the industry in question and which both parties respect as being fair, transparent and achievable.

So, when determining the minimum salary to apply for rugby players, the objective criteria adopted for benchmarking was that of the AFL and NRL at that time, not the US footballer’s minimum salary, which was close to $450,000!

Getting to Yes remains to this day an insightful look at the art of negotiation and dispute resolution. Fisher and Ury provide a useful road map for all those involved in negotiation, mediation and conciliation to follow. I sometimes look back on the early heady days of professional rugby and the battles fought in the courts, the media and through strongwilled negotiation and think of the wise old owl who lived in the oak – “ the more he saw the less he spoke – the less he spoke the more he heard”.

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Biography




Anthony Dempsey began his career specialising in banking litigation with national law firm Clayton Utz in 1990. Tony was the founding President and CEO of the Rugby Union Player’s Association (‘RUPA’) in 1995. He negotiated and secured on behalf of its members (the Wallabies and Super Rugby players) in 1997, 2001 and again in 2004 Collective Bargaining Agreements (‘CBA’) with their employers. These agreements regulated the employment conditions of the players. The 1997 CBA was world rugby’s first and represented a watershed in industrial relations in professional rugby worldwide.

During his time with the RUPA between 1995 and 2009 Tony was instrumental in resolving many complex high profile industrial, commercial and contractual disputes between the Associations members and their employers through a variety of methods including negotiation, mediation, conciliation, arbitration and litigation.

Tony was appointed founding Chairman of the International Rugby Players’ Association Inc in September 2001 – an organisation whose members comprise player associations from France, England, South Africa, New Zealand, Wales, Ireland and Australia. IRPA represents the employment interests of international rugby players worldwide on issues common to them – a position he held for four years.

Tony holds both a Bachelor of Law and Economics from Macquarie University (1990). Tony has completed at the Australian Graduate School of Management the Senior Management Development Course and the Advanced Negotiations Skills Program. Tony is also a accredited mediator with the Australian Commercial Disputes Centre.

Tony is a adjunct presenter at the College of Law NSW for the workshop "Negotiation and Alternative Dispute Resolution".



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Website: www.wisdomdr.com.au

Additional articles by Tony Dempsey



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