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  • Writer's pictureChuck Kanafi

We won't fight for you!

We have negotiated hundreds of agreements - from exchange of goodwill, to billion-dollar settlements. We have learned that a collaborative model of negotiation brings consistently better results while adding value.

Collaborative negotiation is an innovative model of negotiation, based on identification and satisfaction of interests and needs, rather than on "winning". It was pioneered by Roger Fisher and William Ury at Harvard Law School and has since become a leading model for success in negotiation.

What if the other side doesn't want to collaborate?

We abandon the language of "my side" and "the other side". All parties are in it together, trying to create maximum value - no one at the expense of the other. This is done by way of "value creation" - going beyone the simple give-and-take of zero-sum negotiations, and bringing other, innovative elements into the mix.

Why won't you as my lawyer fight for me?

When there is a fight, someone loses and someone wins -"zero-sum" and there isn't even a guarantee that you will "win" - even with a shark of an attorney. But what if everyone involved identified what they needed, and worked together to meet those needs, and maybe even go beyond them.

Collaborative Negotiation

Fischer and Ury, in their groundbreaking book Getting to Yes, outlined four elements of a collaborative, as opposed to competitve, negotiation:

a. Separate the people from the problem: at the negotiating table (or around the dinner table, for that matter) we tend to identify the conflict with another person - "he is so inflexible", "she won't do x" or "we have to change their mind." The first step in reaching a collaborative solution is to reframe the dispute in terms of identifying the actual problem ("I do not have the resources to pay the advertised rent") and to see its resolution as a problem to be solved by both parties working together.

b. Focus on interests, not positions. Once the problem has been isolated, the parties' approach should involve an analysis of interests rather than positions:

"I can't pay that" is a position. "If I were to pay that amount, I would not have enough left over for food and utilities I need" represents an interest.

"I never take less than $x per square foot" is a position. "I need a certain income in order to be able to maintain the property" is an interest.

Statements of interests are often identifiable by the indication of needs although an interest is not always fulfilling a particular need.

c. Invent options for mutual gain: Having identified the interests at play, ways of addressing those interests are examined in the framework of the entire relationship of the parties. In the example above, while the prospective tenant might not have the cash to pay the asking price, they might be able to provide a service to the landlord on a discounted basis. It is possible to imagine a situation where the tenant, would be able to provide web design services for the landlord, thus relieving his business from the cost of such a site, and perhaps even improving the site's income-generating potential.

In this way, instead of "splitting the difference", a zero-sum outcome where both sides lose (the tenant pays more than they wished to, and the landlord receives less than they had planned on), each side walks away with more than when they entered the room (the tenant has an apartment which would normally cost more than they could afford, as well as some additional income; the landlord has a revamped and lead-generating site.)

d. Insist on using objective criteria - Sometimes, when the parties have "agreed to agree", there is still some distance between their respective "best offers" - even with interest based negotion and value-adding options thrown into the mix. In these cases, use of an objective criterion - an outside assessment, a statutory child support calculation, a vehicle price "blue book", a government actuarial table - may be easier to agree upon than to agree on a number itself. By referring to an external, objective norm, neither side "loses face" and each party can justify its acceptance to itself and to others.

By using these techniques, and other refinements, studies have shown that the chances for a positive outcome - an agreement which not only is acceptable to the parties, but rather, an agreement that addresses their needs and satisfies them - are much higher. As such, the chances of the agreement being performed without difficulty (e.g. recourse to litigation) are also much higher. Finally, it changes the atmosphere in the negotiating room from one of suspicion and aggression, to one of collaboration and cooperation.

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