The session, “The Art of Saying No: Save the Deal, Save the Relationship, and Still Say No,” elaborated on the concept of interest-based bargaining, which was developed by Roger Fisher and William Ury in the 1980s through the Harvard Negotiation Project, and first explored in 1981 in what became a perennial bestseller, “Getting to Yes: Negotiating Agreement Without Giving In,” by Roger Fisher, William Ury, and Bruce Patton (Penguin Books 2011).
This approach involves parties shifting their view of the opposition to collaborators, from adversaries, to liberate their minds in order to explore the deeper interests underlying the positions. That allows the parties to create potential trade-offs and win-win opportunities.
The core negotiation principles underpinning the interest-based bargaining model are universal despite variations in communication and presentation styles. This can be observed in many mediations. See, e.g., this author’s experiences as the 2022 Founder’s Fellow of Mediators Beyond Borders International, as recounted in David A. Hoffman, “In Praise of Mediation Observers,” 40 Alternatives 89 (June 2022) (available at https://bit.ly/3wSgRtU), and Robert Angelo Creo, “The Science of Hearing Effectively,” 40 Alternatives 91 (available at https://bit.ly/38iSyx7).
Ury began by reminding attendees that in negotiation, they need to stand up for their interests while saving the deal and the relationship. That often means saying “no” to unwanted desires or behavior.
Because there is tension between relationships and power, some focus primarily on the relationship or power dynamics. One approach is to go on the attack—“high power, low relationship.”
Another is to be accommodating—”low power, high relationship.” The most common approach to avoid is the “low power, low relationship” category.
Ury advocates that the best approach is to employ a “positive no,” where one simultaneously pays a lot of attention to save the relationship and the deal while deploying one’s power to service one’s interests.
The key to the above approach is to prepare the “yes.” Ury recommends that negotiators should keep asking about their own positions–concrete demands such as price, specific terms and amounts–and interests, including underlying motivations such as wants, needs, and values.
Seminar attendees, he urged, should ask why they want to say “no.” The key is to keep drilling down to probe interests. What are the goals we seeking to create, protect, or change? Negotiators should think of issues such as safety and survival, economic sustenance, belonging, love, and promoting the common good. The negotiation outcome should also uncover the negotiator’s values, such as integrity and excellence, and be in alignment in a holistic manner.
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A good mediator encourages people to explore their underlying interests. I observed that Boston-based mediator David Hoffman listened actively during the early parts of a mediation he conducted, and engaged in small talk with both parties extensively.
Like many lawyers, I am goal-oriented and thrive on completion, and therefore, view small talk as inefficient and frivolous. Hoffman explained later that it was important to build rapport with both parties so that both sides trust him and don’t see him as favoring one or the other.
It was only through trust that people would open up, share their candid views, and allow Hoffman to probe deeper to understand their underlying interests. See Robert A. Creo, “The Large Power of Small Talk,” 39 Alternatives 139 (October 2021) (available at https://bit.ly/3PEjzvQ).
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Ury explained in the seminar that an effective “no” isn’t shouted; it is respectful. “No” is a clear, clean line where we use the “no” to protect the “yes.”
It is better to say “no” through warning and educating about the logical consequences of the other party’s actions than to issue threats.
It is an interesting concept to see applied. In my practice as a transactional lawyer in emerging markets, I often see parties use power to escalate, not to educate. In contrast, I observed that mediator Robert Creo–see articles above–used preambles to gently educate parties about the legal consequences of their actions, even when one side clearly committed an offense.
Similarly, in observing Los Angeles mediator Jeff Kichaven, during caucus when a party asked him to relay an unpleasant “no” to the other side, Kichaven inquired how they thought their message would be received by the opposing side.
The party paused and rephrased their “no” in a respectful way. This helped move things forward.
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In his seminar, Ury also emphasized the importance of respecting the other side during negotiation. We show respect because it works, he said, not because someone deserves our respect. We also recognize the dignity of every human being.
Basic respect does not mean liking the other people, approving of them, complying with their wishes, or even being nice to them. Respect means to look again, listen, and pay positive attention to the other person.
We have a valid point of view, but we also acknowledge the other side’s opinion. We validate so the other side does not just hear “no,” which they may perceive as threatening, causing a strong reaction to our “no.” In many conflicts, Ury advised, the cheapest concession we can make is respect, which, ironically, can mean everything to both sides.
During the mediation, Jeff Kichaven showed respect to parties by acknowledging the difference between a mediator and a lawyer. As a mediator, Kichaven would not present a contradictory view to the disputants in front of their lawyers even if he held superior knowledge from his litigation experience.
Kichaven also respected parties’ will not to settle. He kept the mediation process under his control and let the water flow without imposing his will.
William Ury also taught the seminar participants that to stay true to their “yes,” the challenge is to manage the other’s reaction with appropriate responses. It is about understanding the stages to acceptance of bad news.
Often people go through emotions in a general sequence of avoidance, denial, and anxiety. At some point they get angry, and on the other side there is sadness, acceptance, and problem solving.
Robert Creo employed the same strategy in his mediation. He let parties go through a few rounds of negotiation and venting before helping parties respect the mutual and divergent interests which enable a mutually acceptable resolution.
In today’s world, with toxic polarization in our societies, and with tensions in the world affecting all aspects of our lives, Ury’s exhortation of understanding, peace, and respect should be core interests for those who see their career as being a peacemaker.
William Ury, after reading a draft of this blog article, added this thought:
No. The most powerful and needed word in the language today is also potentially the most destructive and, for many people, is the hardest to say. Yet when we know how to use it correctly, this one word has the power to profoundly transform our lives for the better.
Marvin Johnson describes why he is passionate about his work as a mediator. Compares the feeling of helping people to resolve their disputes to a drug high.By Marvin E. Johnson