Jeanette Nyden — November 9, 2016 Follow @JeanetteNyden
Most Dispute Resolution Centers use an eight step process for mediating disputes, which means that after the mediators have introduced themselves, and the parties have aired the issues and built the agenda, the mediators tell the parties that it is time to negotiate. But what does it mean to negotiate?
Too often parties have only the vaguest notion of what it feels like to negotiate with a family member or neighbor. Some people believe that negotiating is what you do with a car sales person. Actually, purchasing a car consists of high pressure sales tactics and does not reflect the type of negotiation session family members or friends would enter into.
A negotiation occurs any time that two parties come together to determine if they share enough common interests to realize some common purpose. And while some of their interests might be shared interests, other interests will be in direct opposition to one another. So, how do parties go about determining if they can accomplish some common purpose — like co-parenting their children? They communicate their interests to each other in a way that will allow them to find common ground.
Here are some suggestions to try the next time you find yourself at a mediation session where the parties have little understanding about how to negotiate.
Define what it means to negotiate
Because some people rarely negotiate in their jobs, because some people dislike negotiating (15% of Americans will never negotiate[i]) and because some people have the wrong impressions about what a negotiation truly is, try explaining the definition to them. Depending on the circumstances, this can be done in an open session or privately in a caucus. Here is a definition from Getting Past No, “Negotiation is the back and forth communication aimed at reaching agreement with others when some of your interests are shared and some are opposed.”[ii]
This definition surprises some people because it is so broad. Some people even remark about how so many more things are negotiable than they first thought. That is exactly the point.
Ask, “Are you better off not negotiating?”
One purpose for the back and forth communication is to determine if you are better off negotiating with the other person, or if you are better off pursuing your best alternative to a negotiated agreement (BATNA). Most people, in the heat of a conflict, will always say that they have a strong BATNA. The fact is most do not have a viable alternative to negotiating, let alone a best alternative.
In a caucus, start the discussion with one party by talking about the purpose of this negotiation. It will then naturally open the door to a discussion about BATNA’s which then will also lead to a discussion about reality testing the alternatives to negotiating with the other person. Sometimes, people need to talk about their alternatives before they realize that they are actually better off negotiating with the other person.
Restate, re-frame and clarify interests.
Continue to restate, re-frame and clarify statements during the negotiations. These techniques are amazingly useful tools during the negotiation phase. When the parties get bogged down and you sense that they might be nearing an impasse try stopping the process and re-frame each parties’ interests to the other.
After you restate party A’s interests and A says that you have it right, turn to party B to ask what s/he heard you say. Restate A’s interests until party B can restate them back to you. Always do this in front of both parties and be sure that you reframe each party’s interest to the other.
By slowing the conversation down, the mediator allows each party an opportunity to correctly hear what is important to the other party. That alone is often enough to keep the negotiations moving forward in a healthy and meaningful manner.
Guide the back and forth of negotiations.
When the negotiations are moving along well, one party will make an offer to resolve some issue. If one party is more adept at negotiations, or is more prepared, that offer will be the starting point not the end point. But what happens when one party makes an offer and the other party just starts to bicker again?
Try slowing the conversation down and restate the offer to make sure that you have it right. Then ask the other party if s/he would like to 1) reject the offer, 2) accept the offer or 3) make a counter offer. If s/he says that s/he rejects the offer then ask that person to make an offer of his or her own to resolve the issue. Before long the parties will get the hang of it and will start making counter offers to one another effortlessly.
These are some tools that I use to help parties negotiate when it is apparent that negotiating is a skill that the parties are not familiar with. Soon the parties no longer needed me to help them out. I simply took notes to help document the amazing agreement the two of them were creating. I hope that these tools will work as well for you too.
[i] G. Richard Shell, Bargaining for Advantage.
[ii] William Ury, Getting Past No.
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