When will we start telling the truth about negotiation? For many years, much negotiation training has been focused on seeking win-win results. This concept was popularized by Fisher and Ury’s extremely influential Getting to Yes.
The search for a win-win outcome differentiates “Getting to Yes” principled negotiation from distributive negotiation which is usually a zero-sum game i.e. if I win, you will lose. In a principled negotiation, the parties will seek to understand each other’s interests and expand the pie i.e. invent new options for mutual gain.
I recently attended a talk by Professor Michelle LeBarron from the University of British Columbia. She suggested that we need to stop telling parties that they can achieve win-win outcomes. The reason? Even if the parties manage to negotiate a resolution, it is usually more a case of “mostly ok – mostly ok”.
In most negotiations, no party will get 100% of what they want – if they do get 100% the process is probably not a negotiation. Most parties in mediation (which is a facilitated negotiation) will end up achieving some of their own goals and allowing the other party to meet some of their goals. This is why the ‘mostly ok’ description makes sense to me from what I have seen in practice.
But is it true for the parties? We know from developments in neuroscience that we are programmed to experience losses more intensely than gains. It is not uncommon for both parties in mediation to feel taht they have made all the concessions, whilst ignoring any gains.
I think that for many parties the most significant gains are those that will only reveal themselves as they live the agreement. At the point of finalizing the deal, parties are often unable to appreciate the benefits that will accrue over time:
One party said to me some months after he had signed his mediation agreement, that he had not realized “the amount of space in [his] mind that was being used up” by his dispute. That space had become free for his family, his health and his business.
President Trump has expressed a wish to act as a 'mediator, arbitrator or facilitator' in negotiations to resolve the Israel-Palestine conflict. Leaving aside for one moment whether this is a good idea, what does it mean to act as a mediator, arbitrator or facilitator? Despite their usage by President Trump as synonymous, these terms relate to separate and distinct processes.
Facilitation - requires a facilitator to 'make easy'. This could be a discussion or a negotiation but the role is limited to facilitating communication in accordance with the rules which have been agreed by the participants. The result of a good facilitation could be a memo, a good talk or decisions on an issue.
Mediation - requires a mediator to provide a structured process to facilitate negotiation. Although there are different forms of mediation (narrative / therapeutic / settlement / etc.) the difference between facilitation and mediation is that in mediation there will be an issue, dispute or problem that needs to be resolved. As a voluntary process committed to party self-determination, a mediator will work with the parties to provide them with a structure and process to enable them to find solutions within themselves. The result of a mediation will be a mediated settlement agreement and more importantly resolution in respect of the outcome. Mediators aim to achieve 'durable solutions', solutions that will endure and which parties can abide by. No party will achieve 100% of what they want, but enough of their priority needs will be met and the process will be conducted with attention and respect to their concerns.
Arbitration - requires an arbitrator to make decisions on fact and law and to render an arbitral award. The arbitrator is not there to facilitate negotiations between the parties but to act as a decision maker. This process is not about party self-determination but about finding certainty and finality. An arbitration will result in an arbitral award which is a binding decision. Arbitral awards are viewed as very enforceable as they are generally supported by Courts and the NY Convention 1958.
What process President Trump intends to use I am unable to say. However, some time understanding the differences would be a good first step.