Collaborative Family Law Practice Chapter Two Collaborative Negotiation by Chip Rose In order to best understand how and why collaborative negotiating can be so effective in bringing about the best possible agreement between parties, it is necessary to compare the characteristics and elements of such an approach with the traditional litigation model. A suggested litmus test for this comparison would include answers to these questions: How effectively does each system gather and deliver to each of the parties information relevant to any choices each might make? How effectively does each system develop the widest range of possible alternatives that might be available to each party as possible outcomes? To what degree has each system created the opportunity for each party to become thoroughly knowledgeable about the interests, objectives and desired outcomes of the other party? To what extent can the negotiation be described as a search for the greatest number of mutually beneficial solutions? To what extent do the clients have control over the process. Keeping these and any other questions in mind, this chapter takes a look at the two principal approaches to negotiation: competitive negotiation (or positional negotiation); and collaborative negotiation (also known as integrative, problem-solving or interest-based negotiation). As we begin this comparison, there are a number of important considerations to keep in mind. Distinguish Strategic Approach from Personality Type While there may be some correlation between various negotiation approaches and personality styles, the two do not necessarily go together. For example, a competitive negotiator may be very "pleasant" to work with in terms of demeanor, but utilize extremely competitive tactics. In fact, a negotiator's pleasantries may be part of an overall manipulative approach. A problem-solving negotiator may, on the other hand, be rather ornery in terms of personality, yet effectively utilize interest-based, problem-solving strategies in negotiation. The Best Negotiators Will Have Both Sets of Skills It is also important to appreciate that the most effective negotiators will have a wide array of negotiation skills, both competitive and problem-solving, and will effectively mix and match these approaches depending upon what the negotiator believes will work best in a particular situation. The negotiating approaches employed may also depend upon the specific issue being negotiated and on the duration of the negotiating relationship (one-time transaction or continuing relations). Distinguish Strategies To Create Value From Those That Claim Value Another view of negotiation is that certain strategies and behaviors are intended to create value. Other strategies and behaviors are intended to claim value. The collaborative negotiator will want to first assist the negotiating parties to create maximum value for exchange, then help the participants to figure out how best to divide those identified potential benefits. The Competitive Approach Competitive negotiation strategy is, essentially, a manipulative approach designed to intimidate the other party to lose confidence in her or his own case and to accept the competitor's demands. This approach is characterized by the following: High opening demands Threats, tension and pressure Manipulation and exaggeration of the facts Positions Volunteering only information that is beneficial Conceding only that which is undeniable Attempting to achieve victory Viewing outcomes as win/lose When a competitive negotiator is asked how she will know that she has reached a good agreement, she may reply that the agreement is "better than fair." Assumptions of the Competitive Approach There are certain assumptions that lie behind the competitive approach to negotiation. The fundamental view of the world is a distributive one. This approach tends to make the following assumptions: Negotiation is the division of limited resources where one side's gain is the other side's loss; and A deal made today will not materially affect the choices available tomorrow. Notice that, to the extent these assumptions are false, the collaborative attorney can use this identified falsity as a lever to encourage more collaborative approaches. Risks of the Competitive Approach While competitive negotiation tactics can be effective in "claiming" already defined value, there are certain risks to competitive negotiation. Foremost among these risks are damage to the negotiating relationship and a diminished probability of reaching agreement. A list of the disadvantages of the competitive style includes: Rigidity resulting from confrontation Reinforcement of the loss of trust Limited analysis of possible criteria for resolving issues Limited development of solution alternatives Lack of control over the process and the outcome Damage to the future relationship Increased likelihood of impasse, anxiety, costs Principled Negotiation In their book, Getting to Yes, Fisher and Ury set forth their concept of "Principled Negotiation." Here is a brief summary of the main points of the theory: Separate the People from the Problem Fisher and Ury suggest that "we are all people first" -- that there are always relational and substantive issues in negotiation. The authors describe means of dealing with relational issues, including increasing the capability of each party to see the other side's point of view (for example, by reversing roles); seeking to make negotiation proposals consistent with the other party's interests; making emotions explicit and legitimate; and encouraging active listening. Focus on Interests, not Positions Positions may be thought of as one dimensional points in a space of infinite possible solutions. Positions are symbolic (and often relatively crude) representations of a participant's underlying motivating interests. To find out the underlying interests, you can ask such questions as: What is motivating you here? or What are you trying to satisfy? or What would you like to accomplish? You may also very powerfully ask: If you had what you are asking for (your position), what would be satisfied? These questions may be asked to elicit information from both one's own client and the other party. The collaborative attorney can use this interest and intention data base to develop proposals that may solve the speaker's concerns in a way that is acceptable to both parties. In negotiation, there are many kinds of interests: multiple interests, shared interests, compatible interests and conflicting interests. Identifying shared and compatible interests as "common ground" can be helpful in establishing a foundation for additional discussions. "Easy points of agreement" can be identified and the principles underlying those easy points of agreement can often be extrapolated to help resolve other issues. Note that focusing on interests directs the discussion to the present and future, away from the difficulties of the past. For example, consider the effect of legal counsel saying: Am I correct in assuming that you have both been struggling financially and would like to move forward in a manner that would minimize the cost of the divorce? Legal counsel can also commonly get agreement with a statement such as: I suppose if we have learned anything about the past, it is that we cannot change it. Perhaps also that we would like to do things differently in the future. Would you like to talk now about how we can do the future differently in a way that serves you each at the highest possible level? Invent Options for Mutual Gain Before seeking to reach agreement on solutions for the future, Fisher and Ury suggest that multiple solution options be developed prior to evaluation of those options. The typical way of doing this option generation is called brainstorming. The parties and legal counsel generate as many solutions as possible before deciding which of those options (or components of identified options) when grouped together best fulfill the parties' interests. This brainstorming of options prior to decision-making is a critical piece for the success of the collaborative negotiation process. Whether this brainstorming is done explicitly as part of a shared exercise or whether the parties individually commit to actively looking at each and every possible solution before moving on to decision-making, this type of open-minded thinking is possible because the parties are co-operating with one another. It is this open-mindedness that ensures the parties are providing themselves with the best possible chance of maximizing their results. Select from Among Options by Using Objective Criteria Fisher and Ury's suggestion that negotiating parties consider using objective criteria (standards independent of the will of any party) to make their decisions is where the label "principled negotiation," comes from. Fisher and Ury suggest that solution selection be done according to concepts, standards or principles that the parties believe in and which are not under the control of any single party. They recommend that selections be based upon such objective criteria as precedent, tradition, course of dealing, outside recommendations, a flip of a coin or any other standard where one party does not simply prevail over the other based upon raw power. While the concept of "objective criteria" as one way for divorcing parties to make decisions is certainly valuable, parties will not always choose or be able to utilize such objective standards in their negotiation. Parties will, perhaps just as commonly, agree to arrangements by their own subjective criteria. What is important to recognize is that some standard for decision-making, be that subjective or objective, offers the negotiating party (and legal counsel) an invaluable explanation for decision-making in negotiation. Without reasoning and an explanation that the party can offer to themselves and to significant others, or at least a rationalization, parties will not tend to agree fearing that they may be stepping onto a slippery slope of unilateral concessions. It is the ability to explain negotiation decisions as a "good thing" by the negotiating party (what is it specifically that they are getting by the decision) that allows confident movement to be made. Remember, parties only need to agree to the same arrangements, not necessarily the same arrangements for the same reasons. What if They Won't Play or Use Dirty Tricks? Fisher and Ury's answer to the resistant competitive negotiator is to "insist" on principled negotiations in a way that is acceptable to the competitor. The principled negotiator might take the lead and ask about the competitor's interests and concerns, show that he or she understands and wants to satisfy these interests and concerns, and, in return, then ask the (soon to be former) competitive negotiator to listen to the full range of interests and concerns that exist so that we all might work best together to satisfy as many of these concerns and interests as possible. Following the development of all interests, Fisher and Ury then suggest brainstorming options and identifying criteria for decision-making. Converting Positions to Interests to Positive Intentions Divorcing parties tend to come to the divorce process and their negotiations with developed and rehearsed positional statements. One party will say "I want the house" or "I insist on joint custody." As collaborative negotiators, we learn to assist parties to get beyond their positional demands to achieve a fuller understanding of their respective motivating interests and intentions. Divorcing parties seek to make good, adaptive choices in fashioning their futures. Taking this view, legal counsel can help participants to recognize that even the most difficult interests, like revenge and anger, can be transformed by identifying the ultimate underlying positive intention. It has been said that all behavior is ultimately motivated by positive intention of some sort. For example, a hurt spouse who, on the surface, seems out get revenge can be assisted to identify the positive intention behind those feelings. The collaborative attorney might hypothesize: Would it be wrong to say that you would like your hurt and pain acknowledged, to be respected in this process, and to be honored in pursuing arrangements that will work for you now that it seems the marriage will be ending? Through this type of active intervention, the collaborating lawyer can redirect the negotiations away from a futile rehashing of the difficulties of the past into a joint search for maximizing solutions to the parties' underlying interests and ultimate positive intentions. This type of reframing can dramatically alter the atmosphere and results of your negotiations. The Integrative/Collaborative Approach The integrative, collaborative or problem-solving approach to negotiation has been described as "enlightened self-interest" as compared to "egocentric self-interest." Whereas in a competitive approach a participant focusses exclusively on his or her own needs without regard for the needs of the other party, in integrative or collaborative negotiation, each party comes to appreciate that understanding the other party's concerns and interests is critical to maximally achieving one's own self-interest. The end result is an expanded set alternatives for consideration and a greater willingness to consider maximizing exchanges. Working together, the parties can create a far greater whole then working against one another. In collaborative negotiation, parties are encouraged to express themselves about both their feelings and the full range of issues utilizing non-critical, non-accusatory, non-judgmental language. This open expression is critical to the process if you accept that parties will not move toward agreement until they first experience themselves to have been honored and heard. In subsequent chapters we will discuss more specifically how the attorneys in the collaborative negotiation session can facilitate this "being heard" aspect of the process. Assumptions of the Collaborative Approach The assumptions of the integrative approach reflect the fundamentally different world view that distinguishes it from the competitive approach: Some common interests exist between the parties Negotiation is enhanced by a full discussion of the participants' individual perspectives and interests Non-competitive approaches are the best method for lessening fear and anxiety One party's self-interest can best be served by maximizing the other party's satisfaction, if this can be done in mutually acceptable ways. Many of my good friends who are classic "divorce lawyers" and who have never participated in nor observed a collaborative process at work see these principles as fine concepts, but unrealistic goals in the context of the emotional experience most clients go through in divorce. My experience in working in both the litigation and collaborative worlds is that clients are capable of much more than we generally given then credit for. It is my suggestion that, with the right information, proper guidance, supportive encouragement and assistance, "miracles" can happen, on a daily basis. The proof, as they say, will be in the proverbial pudding as clients create successful agreements to resolve their issues and do that in a cooperative atmosphere based upon their own self-interest. Risks of the Collaborative Approach The risks of the collaborative approach are based on the obvious fact that it takes two to collaborate. If one party is unwilling to participate in collaborative, problem-solving negotiation, the party who still attempts to negotiate in a cooperative and integrative way may find him or herself at risk as follows: The collaborative negotiator will be forced to either "give in" or adopt a competitive stance The negotiator may feel that he or she has failed if the parties do not reach a collaborative agreement The collaborative negotiator may disclose strategic information that is not reciprocated While these risks exist, they are dramatically lessened by the fact that attempting the collaborative approach does not preclude the party or legal counsel from utilizing any other approach or option in the future. Divorcing clients and legal counsel can try the collaborative approach and see if it works. If it fails to resolve issues, the litigation option is always available. On the other hand, you cannot realistically "try" litigation. The likelihood that two sides can sit down and engage in an open and cooperative dialogue following the court battle of their first Order To Show Cause hearing is dramatically lessened. Order Collaborative Family Law Practice