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Negotiating The Negotiation

by Phyllis Pollack

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack
Mediations are about negotiation. In most negotiations,   the parties focus on the substance of the dispute; that is, on the merits of the controversy. Very rarely, do the parties focus on the procedural aspects of the negotiation such as, which and/or what issues do they want to negotiate? Which issues do they want to omit from the negotiation ? Which issues do they want to address first, last or somewhere in the middle or in what order?


      Most mediators DO think about such procedural issues as they have learned through training and experience that procedure greatly affects the outcome of the mediation. They have learned that to negotiate the toughest issue first will, in all probability, lead to failure. However, if the easier issues are negotiated first and resolved, this will build momentum, making it easier to then resolve the more and most difficult issues.  With this in mind, most mediators guide the parties through the procedural issues; oftentimes, the parties are unaware of this strategy.


      I raise these issues because in a succinctly written article, Linda Bulmash in her January 2008 edition of “One Minute Negotiation Tips”  (Los Angeles County Bar Association) urges the reader not to forget the procedural aspects of a negotiation—not to forget the agenda:

         “An agenda gives form and structure to the discussion of issues that you and your opponent will negotiate. When you control the agenda, you not only control the order of the issues discussed but also what issues will be discussed, what will not be discussed, and the timing of decisions. By controlling the agenda, you significantly increase your chances to leverage your position and control the outcome.”
      “Negotiate the agenda before negotiating the issues. Focus on the following:

      “1. Create your own agenda by paying special attention to what you do not want to discuss as well as what you want to discuss.”

       “2. Think about the order in which to best introduce each issue.”

       “3. Think through the consequences of the other person’s agenda before accepting it.”

       “4. Carefully read your opponent’s agenda and focus on what it leaves out.  Doing this will give you insight into what your opponent does not want to discuss and what is important to him or her.”

       “5. If the agenda is not working effectively for you, have the courage to renegotiate it.”

       So- as you prepare for your next negotiation or mediation, as you review the substantive issues or the merits of the matter, think also about the procedural aspects. Think about the agenda- which issues should or should not be addressed and in what order.  From my own experience, the procedure WILL make the difference in reaching a settlement.


       . . . Just  something to think about. 


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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