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Bye Bye, Win-Win

by Edward P. Ahrens
May 2008 Edward P. Ahrens
Back in January ’03, I wrote an editorial entitled “You Don’t Have to Win.” I played the iconoclast in mediation circles, by suggesting that the “win/win” concept is falling on deaf ears, that – may the heavens fall down around my ears – it is okay to “lose,” and, if it makes you feel better, to consider the loss as a win. With more candor than I cared to admit, I conceded that I nonetheless will continue to expound on the win/win philosophy with the hope that the disputants will buy into it.

I thought I had had the last word on the subject, when up pops the devil, no personal aspersion intended. In a Tampa Tribune article, dated March 14, 2004, Bob Weinstein, in his Tech Watch column entitled “Win-win negotiations are for wimps,” summarizes at length Jim Camp’s book, Start With No. Sound familiar to mediators? I have not yet had the pleasure of reading Mr. Camp’s recently published book, but I’ll bet you he read William Ury’s Getting Past No before he wrote his rebuttal! Titles can tell you a lot, can’t they?

A good editorialist will read a book being critiqued before he or she sets pen to paper (or fingers to computer). I confess in advance that my “reading” of Camp’s book consists entirely, at this time, of Weinstein’s comprehensive abridgment. If a reading of Camp’s book changes my observations, I’ll let you know in a future editorial.

“So what’s wrong with win-win negotiations?” Weinstein asks, rhetorically, “Aren’t they the foundation of a healthy and democratic business environment? No, sir, snaps Camp. That’s a wishy-washy cop-out for not taking chances, expressing great ideas or pushing for what you want.”

Weinstein goes on to quote Camp directly: “Win-win is so lame, systems have been designed to take advantage of weak win-win negotiators. The haves negotiate well and the have-nots don’t. Win-win has created a society of easy compromisers who have lost the negotiation edge.” Wow!

In fairness, Camp’s book appears to be focused on intercompany and intracompany negotiations, rather than on mediations, which are not mentioned in the article. The lessons, however, such as they are and such as we may or may not agree with them, are transferable, or at least worth considering..

Camp’s “10 tips for negotiating the best deal,” as summarized by Weinstein, pose some interesting thoughts. We may recognize the value in some of them.

  1. Invite your opponent to say no and assure that you’re comfortable with it. Your adversary will respect you, and, if naïve, will feel safer. [I’m neutral on this one.]
  2. Identify in advance problems preventing a successful deal, and ask your opponent how they might be solved. [I think good mediating attorneys do this, especially with effective follow-up by the mediator.]
  3. Also, know your adversary. [That’s a given, if you want any edge.]
  4. Control your emotions. Have no expectations, fears or judgments. [The former, sure; the latter, not so sure.]
  5. Practice the “Columbo effect.” Let your adversary feel “more OK” than you, even perhaps a bit superior. [That’ll suck ’em in! Then, lower the boom!]
  6. Talk little and take voluminous notes. [This guy has not dealt with attorneys!]
  7. Answer questions with questions. Compliment your opponent on their good ideas and excellent questions. [Stroke em, then poke em!]
  8. Focus on controlling your behavior; never think about or plan for the outcome of the deal. [Now I think I gotta read the book!]
  9. Never enter into a negotiation without a valid mission and purpose. [Tough to do, if you don’t think about the outcome.]
  10. Do not try to be friends. [Whew! Takes all the fun out of negotiations.]
  11. Deal only with the power-holders, the decision-makers. [The rules of mediation require this, however much they are honored in the breach.]

So, there you have it. You pays your money and you takes your choice. It all comes down to the same goal: a negotiated settlement. Whether you win/win or lose, a settlement trumps a trial every time. A sage once said it’s all in the wrist. But all wrists are different, and, to overwork another cliché, there are different strokes for different folks. The best approach is one that is comfortable for you and not too uncomfortable for your opponent. After all, you both have a mutual objective, i.e., to avoid the expense, stress, delay and uncertainty of a trial.

Biography


Ed Ahrens has been a member of the Florida Bar for over 43 years. He is a certified state and federal court mediator in Tampa, Florida. He is also a freelance writer and former president of National Writers Association, South Florida Chapter. He is the author of the popular book, The Perils of Imprudent Writing-How to Watch What You Write and Stay Out of Court, now in its second edition. See VanBurenBooks.com and FloridaMediationGroup.com for additional info on Ed and his writings.

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Website: www.FloridaMediationGroup.com

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