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<xTITLE>Is Collaborative Negotiation an Oxymoron? Should Litigators Care?</xTITLE>

Is Collaborative Negotiation an Oxymoron? Should Litigators Care?

by Victoria Pynchon

From Settle It Now Negotiation Blog

Victoria Pynchon

"No," to question no 1 says Clarke Ching of the software blog More Chili Please who is hosting this week's Carnival of Trust.  (Hat Tip to Chicago IP Litigation Blog)  And "yes" say I to question no. 2.

Ching cites us to Davis Anderson's post, "Stop Negotiating, Start Collaborating" in the Agile Management Blog, an article that was first published in the Cutter Journal. Ching says,

It's a very good article - important to anyone working in project work, software related or otherwise. I wonder if David was ... perhaps ... being a little deliberately provocative with his title. Can we ever stop negotiating while we've got people involved? I prefer to think that there are two different ways of negotiating: as adversaries or as collaborators.

I agree with Ching but Anderson's post is not just a great read, but a provocative and stimulating one so I suggest you click on it and run right over there.  Not convinced?  Here's an excerpt:

Stop Negotiating! No really! Cut it out! Banish it from your thoughts, your actions and your organization. Refuse to negotiate. When you need to work with another department, group or team inside your organization, and you find yourself in negotiations to get what you need, just say “Enough!” And refuse to negotiate.

What is so bad about negotiation?

Negotiation implies that you have an internal market and a market implies that you need a contract between a supplier and a consumer of a product or service (usually a service in an IT or technology product company context). Markets and their contracts carry transaction costs [1] – one of those costs is negotiation. If you can replace your internal market with a collaborative network, you’ll gain an economic boost from what are known as the network externalities [2] of being in the network. Collaborative networks do away with the transaction costs associated with marketplaces - specifically in this case, the cost of negotiation.

Negotiation also implies that information is being hidden. The supplier is hiding their availability, or the cost of the job, or some information that might give the consumer an advantage. Our 20th Century education taught us that “information is power” and business schools teach negotiation emphasizing that leverage involves hiding information. It’s become second nature in business to assume hidden information and to probe for it during negotiations. Hence, consumers of your IT service naturally distrust your estimates or resource requests.

Let’s pause for a moment and reflect on that word advantage. Within your organization, why would any one group or team require an advantage over another? Doesn’t the organization have a set of common goals? And isn’t the organization supposed to be collaborating to realize those goals? What can obtaining an advantage over another group possibly have to do with collaboration?

If you are beginning to think that there ought not to be a position of advantage in a truly collaborative organization, you’re thinking along the right lines. Having an advantage and collaboration are incompatible. By implication then, information hiding is incompatible with collaboration. And negotiation ought to be unnecessary.

Trust is the essence of a highly collaborative organization.

My attorney readers, particularly the litigators will say -- sure, sure -- it's one thing to stop 'taking advantage' internally - but we are fighting a just cause here.   

Not to join the kum-by-ya crowd or anything like that, but if you can hold this thought in your mind for just a couple of minutes before rejecting it completely, it might take root and grow a small shoot of hope and desire inside of you.

Here it is:  we are all within the same "organization" -- that Big Blue Ball whose larger mammals happen to be threatened with extinction right now.  Being those larger mammals, don't we have a set of common goals?  And doesn't that set of common goals include maximizing the well-being of everyone on the economic food chain? 

We need workers to create the stuff business produces, both to create it while we brainstorm and to purchase it after the workers make it. That's at the bottom of the food chain.  Closer to the middle, we need higher paid workers to have disposable income to invest in business, either directly as partners or indirectly as shareholders.  At the top of the food chain, we need "competitors" to solve some of the complex business, manufacturing and information technology problems that our business -- be we MicroSoft or Apple or SmallTech just getting started in the garage down the street -- cannot solve. 

But what about people who infringe our patents, who steal our customers, who try to gobble up the market for themselves.  What about people who breach their contractual obligations?  What about the people who lie and cheat and steal?  We need to fight them in the civilized way we do now.  We need power to force them to disgorge the profits that rightfully belong to us and to pay for the damage our business has suffered as a result of their civil wrongdoing.

O.K.  Listen.  I just said -- hold this thought in your head for a minute before rejecting it out of hand. 

I'll be back to address that last set of questions soon.


Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all types of business torts and contract disputes.  During her two years of full-time neutral practice, she has co-mediated both mandatory and voluntary settlement conferences with Los Angeles Superior Court Judges Alexander Williams, III and Victoria Chaney.  As a result of her work with Judge Chaney in the Complex Court at Central Civil West, Ms. Pynchon has gained significant experience mediating construction defect litigation.  Ms. Pynchon received her J.D., Order of the Coif, from the U.C. Davis School of Law. 

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