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Are We Our Own Worst Enemies?

by Phyllis Pollack
August 2016

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

Recently, I came across a report from the Harvard Law School Program on Negotiation entitled “Salary Negotiations”.   (HLS_PON_FR_SalaryNeg_V03_031416_wf  ) While it focuses on negotiating the best salary possible, some of its points are equally applicable to negotiations in general.

In one of the articles, the authors make three important points: “(1) mispredicting what we will truly value in life; (2) holding ourselves back in job negotiations; and (3) failing to recognize our relative bargaining position.” (Id. at 5.)

Many times parties may be in the middle of a dispute or litigation and have lost sight of the forest for the trees. They have forgotten why they started down this road, and what is important to them. The authors suggest that a party think long and hard about what it is she truly values and what she wants out of the negotiation. To do so, the authors suggest creating a scoring system. Write down all of the things or issues that are important and then put a score (e.g., 1 to 10 with 10 being the most important!)  by each of them.  This will help a party determine more accurately what is at stake and what is most valued.  Perhaps, it is avoiding trial. Or, obtaining a set sum of money; or “saving face” or clearing your name or reputation, et cetera.  While most litigation or disputes start based on “principle”, rarely do they end that way. As the dispute proceeds, the issues we value the most will change and thus the scoring will change. So, in any long term dispute such as a lawsuit, it is important to conduct such an assessment periodically.  This is the only way that a party will truly know which goal is the most important and why, and not get lost in the trees.  (Id. at 5-6.)

The second point is to get out of our own way. Sometimes, we are our own worst enemy. We do this by focusing on our weaknesses and conceding issues before we even begin to negotiate. The little voice in our head tells us not to pursue it even though we do not really know what the other party’s response will be. We give up ground before even starting. While we know that a certain fact may exist and be a “weakness”, we forget that the other party does not necessarily know it as well. We assume the other party knows it, which is an assumption that we should not make. Rather, we should act on the premise that the other party is NOT aware of it. (Id. at 7-8.) (Example: we know that a certain critical witness is no longer available to testify. In negotiating, we should NOT assume that the other party is aware of this “weakness” in our case.)

Or, we fail to see or pursue opportunities to negotiate and resolve a matter.  (Id.) The prime example of this is mediation. Many believe that it is a sign of “weakness” to suggest mediation to the other side. Wrong!  Litigation is time consuming, expensive, inefficient and emotionally exhausting. Moreover, a trial typically does not provide the catharsis that people are seeking. It is much more “rational” to end the dispute as quickly as possible and to move on with life. So, to suggest “mediation” is simply a recognition that everyone has better things to do with their lives. Why spend years on a dispute when it can have resolved in a matter of hours?

Closely related to not allowing our own internal dialogue to defeat us is that we should recognize that we do have bargaining power relative to the other party.   Each party should negotiate forcefully, using information gathered in preparation for the negotiation.  But, at the same time, we should prioritize our demands. Using the scoring system mentioned above, we should focus on the two or three issues most important to us and push for those in the negotiation. (Id. at 8-10.)

In close connection to this is the strategy to be used. Which strategy is used plays an important role in the outcome. (Id. at 13-14.) Should it be a competing (i.e. zero sum game) strategy? A collaborative one? Or, one that is compromising and accommodating?

While a competing strategy may provide better results in the end, the authors note that “collaborators were more satisfied than competitive bargainers with the negotiation process.”(Id. at 13.)  And, as one might suspect, the use of a compromising and/or accommodating strategy did not yield satisfactory results. (Id.) Parties using such strategies were not satisfied with the results of their negotiations.

So, don’t get lost in your dispute. Do a periodic soul searching of what is important to you and then use mediation and a good strategy to get there. And, never let the little voice within you assume and thus concede anything before you even start to negotiate.

…. Just something to think about.

Biography


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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