The Man Who Led Us To Yes

The recent passing of Professor
Roger Fisher, the undisputed
pioneer of modern negotiation
and dispute resolution, prompted
me to reflect back to 1997 when
I headed up a team of negotiators that
secured world rugby’s first ever collective
bargaining agreement. It was the
culmination of two years of tough negotiations
stemming from a player-led
revolution that saw the game turn professional
– literally overnight.

The negotiations were a test of will
between both the players’ advocates and
the administrators. The issues were complex
and the passion high on both sides.
The negotiation was punctuated by court
action and an extensive media campaign
aimed at unsettling the newly established
players’ association. Initially, the two parties
were irreconcilably opposed on the
key issues and an acceptable outcome to
either side looked impossible.

The players union and the governing
body of rugby took opposing positions
and defended them until the death. A
familiar catch cry for the players’ position
at the time was: “The players are underpaid
and deserve a bigger slice of the pie.
Without the players there is no game.”
The governing body of the sport took the
position that limiting labour costs was
important for the future growth of the
game.

Ultimately, an outcome was achieved,
and the collective agreement was
described by a leading industrial relations
academic as the best of its kind in
Australian sport at the time.1 There were,
however, significant repercussions from
that negotiation, and it would take many years for the damaged relationships to
repair. I never forgot the lessons I learnt
from that experience, including the
value there would have been in having a
wise conciliator present to guide parties
through tough negotiations.

Fisher’s death also prompted me to
revisit the much celebrated book he coauthored
with William Ury in 1981, Getting
to Yes – Negotiating an Agreement
without Giving In
. Apart from being a
bestseller with over three million copies
sold worldwide and being reproduced in
over 23 nations, the book’s principles and
teachings have withstood the test of time
and the ever-changing way business is
conducted today.

Fisher was involved in some of the biggest
negotiations and disputes of his era
and is attributed with “directly and materially
taking multiple steps toward peace
in the Middle East, including Sadat’s
trip to Jerusalem and the Camp David
summit that led to an Israeli-Egyptian
peace treaty; peace in Central America and especially in El Salvador; the resolution
of the longest-running war in the
western hemisphere between Ecuador
and Peru; the breakthrough that enabled
resolution of the Iranian hostage conflict
in 1980; a fundamental reshaping of the
US-Soviet relationship; and the negotiations
and constitutional process that led
to the end of apartheid in South Africa”.2

The book bases itself on the premise
that negotiators should avoid bargaining
over positions and locking themselves
into those positions. Instead, it argues
that parties should focus on identifying
their own interests and those of the
opposing party and developing creative
options that meet those interests.
As Fisher and Ury say, “The more you
clarify your position and defend it against
attack, the more committed you become
to it. The more you try to convince the
other side of the impossibility of changing
your opening position, the more difficult
it becomes to do so.”3

Despite the praise the players’ union
received for that first collective agreement,
such approaches rarely produce a
wise agreement that meets the legitimate
needs of the parties. The agreement that
was reached might have been the sort
that Fishy and Ury saw as “reflect[ing]
a mechanical splitting of the difference
between the final position rather than
a solution carefully crafted to meet the
legitimate interests of the parties.”4

Fisher and his co-author instead advocate
an alternative style of negotiating
known as the interest-based method,
which focuses on four key and fundamental
elements that define most efficient
negotiations.

Isolate the Problem.

First, they espouse separating the
people from the problem (meaning people
should come to see themselves as working
side by side, attacking the problem,
not each other). They argue that dealing
with a substantive dispute and maintaining
a good working relationship need
not be conflicting goals. Good negotiators
(and conciliators for that matter) can
understand the perception the opposing
party has of the situation by putting themselves
in the shoes of the other party.

A good conciliator has the ability to
recognise and understand the emotions
and needs of each party. They acknowledge
such emotions as being legitimate
and don’t belittle them or ignore them.
By allowing the venting of anger and frustration,
a good conciliator knows that the
negotiating parties are obtaining a psychological
release that sets up a fertile
environment for reaching a solution.
“A basic fact about negotiation, easy to
forget in corporate and international transactions”,
Fisher and Ury say, “is that you
are dealing not with abstract representatives
of the ‘other side’ but with human
beings. They have emotions, deeply held
values, and different backgrounds and
viewpoints; and they are unpredictable.
So are you.”5

Objective Standard.

The second element of good negotiation
is the ability to focus on interests, not
positions – meaning generating a variety
of possibilities before deciding what to
do and insisting the result is based on
some objective standard. As the authors
of Getting to Yes put it: “Interests motivate
people; they are the silent mover behind
the hubbub of positions. Your position
is something you have decided upon.
Your interests are what caused you to so
decide.”6

I can’t honestly say that, back in 1997,
any of the parties to the collective negotiation
were exploring in any great depth
each other’s needs. If they had done, they
would have quickly realised that, aside
from money, the issues driving the negotiation
were recognition (for the players’
union) and control of the game (for the
administrators). If we had had someone
able to help us identify and deal with the
real issues, I dare say our negotiation
would have been far more efficient and
wise, and the relationship between the
two organisations much healthier.

The key for a good conciliator is to be
able to look beyond each party’s position
and identify the shared and compatible
interests, as well as conflicting ones. I see
only too often people in negotiation automatically
assume that “the other party’s”
stated bargaining position is the same as
that party’s interests. The truth is that a
stated position rarely reflects the party’s
interests. Often, people think a dispute is
simply about the payment of money, but
quite often other interests are at play.

“A position is likely to be concrete and
explicit. The interests underlying it may
well be unexpressed, intangible and perhaps
inconsistent.”7

Creative Options.

The third crucial element for a constructive
negotiation is the ability of the
negotiators (and conciliators) to invent
options for mutual gain well in advance
of reaching agreement. Quite often,
negotiators see their role as narrowing
the gap between stated bargaining positions
rather than broadening the options
available for settlement. Such approaches
stymie creativity and lessen the chance of
a wise agreement.

Fisher and Ury said that, “To invent
creative options … you will need (1) to
separate the act of inventing options from
the act of judging them; (2) broaden the

options on the tables rather than look for
a single answer; (3) to search for mutual
gains; and (4) to invent ways of making
their decisions easy.”8

They also cautioned against false
assumptions: “ … [a] major block to creative
problem-solving lies in the assumption
of a fixed pie: the less for you, the more for
me. Rarely if ever is this assumption true.
First of all, both sides can always be worse
off than they are now … Even apart from a
shared interest in averting joint loss, there
almost always exists the possibility of joint
gain. This may team the form of developing
a mutually advantageous relationship,
or of satisfying the interests of each side
with a creative solution.”9

Credible reference points
The final element of a good conciliation
is to insist on the use of objective
criteria as a reference point (meaning any
agreement reached should be reached
independent of the naked will of either
party’s negotiator and referenced to some
objective standard such as
market value, expert opinion
etc).

Fisher and Ury put it
succinctly: “In short the
approach is to commit yourself
to reaching a solution
based on principle, not the
mettle of the parties. Be open to reason,
but closed to threats … at a minimum,
objective criteria need to be independent
of each side’s will.”10

Objective criteria they cited include
market value, precedent, scientific judgment,
professional standards, efficiency,
tradition and costs.

When negotiating a collective bargaining
agreement, I would often draw reference
to the precedents set in other sports’
collective bargaining agreements, such
as the AFL and the US’s NFL and NBA
as independent objective criteria to assist
in negotiating various issues such as use
of players’ intellectual property, occupational
health and safety, the percentage of
games revenues to be shared by players,
employee incentive schemes, minimum
salaries and funding for retirement player
development schemes.

The key is to agree on criteria which
makes sense for the industry in question
and which both parties respect as being
fair, transparent and achievable.

So, when determining the minimum
salary to apply for rugby players, the
objective criteria adopted for benchmarking
was that of the AFL and NRL at that
time, not the US footballer’s minimum
salary, which was close to $450,000!

Getting to Yes remains to this day an
insightful look at the art of negotiation
and dispute resolution. Fisher and Ury
provide a useful road map for all those
involved in negotiation, mediation and
conciliation to follow. I sometimes look
back on the early heady days of professional
rugby and the battles fought in the
courts, the media and through strongwilled
negotiation and think of the wise
old owl who lived in the oak – “ the more
he saw the less he spoke – the less he
spoke the more he heard”.

                        author

Tony Dempsey

Anthony Dempsey began his career specialising in banking litigation with national law firm Clayton Utz in 1990. Tony was the founding President and CEO of the Rugby Union Player’s Association (‘RUPA’) in 1995. He negotiated and secured on behalf of its members (the Wallabies and Super Rugby players) in 1997, 2001… MORE >

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