You do not stumble over a mountain but you do over a stone
There is a point in some negotiations when a party will decide that this is the hill on which they will fight the final battle. They may have reached agreement on a myriad of issues but this one is “a principle” or “so unjust” that they are willing to walk away from the whole agreement if they do not get what they want on this one issue.
Often these parties have worked extremely hard and are at the end of their energy and endurance. It is critical at this stage for parties to take a moment and consider the entirety of the negotiation. It is helpful for parties to remember:
For me, this proverb rings true when I see parties who have overcome significant challenges and have climbed the mountain, only to trip over a stone in the path. Staying focused at this stage can help parties to keep sight of their goals and to side step that last stone.
A sari is not woven from a single thread
What could this mean in the context of conflict? Just as in any fabric where threads must go in two directions, the warp and the weft, a negotiation cannot just achieve one person’s positions. A durable solution, a negotiated agreement will have threads going in both directions.
Mediators are seeking to work with parties to find a solution that provides enough of what each party needs to make an agreement work. The warp and the weft are both needed to make the agreement sustainable.
Welcome to the last day of the decade. In order to celebrate the turning of the year and the decade, I am starting a new series next week based on Asian proverbs. Each week, I'll look at a proverb from around Asia which illuminates something for people in conflict or for conflict resolvers, or both. In the new year there is time for old wisdom.
What do dogs know about negotiation? I would argue that dogs understand a lot about negotiation. On a daily basis, I enjoy watching my dogs negotiate with me to achieve their goals. They are stealth negotiators, clothed in fur. On an instinctual basis, dogs can teach humans some great lessons about negotiation.
The question is - are we clever enough to learn from them?
Every day my dogs have taught me something about life or myself. In the next few weeks, I will share some thoughts about the gurus in our homes and what they can teach us about conflict and negotiation.
Back at mediator school, we would brave the small claims court and attempt "guerrilla mediation". It was a challenging space to work in and often we were in the corridor outside the court room. One day I turned up at Santa Monica's court house to be told that the generator was down and therefore court was cancelled. The clerk for Court Room 4, Dwight was outside on the grass with the parties and was explaining that they would need to reschedule for court or they could mediate right away.
Within a few minutes I was mediating an employment dispute about termination. As the former employee started explaining her position, a golden retriever walked a few feet away from us heading for the trees. A few steps further on and the dog rolled over as his delighted dog walker exclaimed "tummy tickle time". It was distracting to say the least. We all gazed over and smiled at the happy dog and owner. A shift came over the conversation. I think that everyone had realised that maybe life held other possibilities. We continued to mediate and they were able to reach agreement.
In mediation, it can be a struggle to shift parties from their positions to a negotiating posture. The golden retriever was able to assist the parties to shift just by rolling over.
Without realising it, I had just seen the benefits of canine assisted mediation. There is a a lot of research to suggest that just seeing a dog can help to lower cortisol levels and lower blood pressure. Next week, what is canine assisted mediation?
The Goat is the creative animal in the Chinese zodiac.
Creativity can suffer in conflict. In order to be creative, we need to be vulnerable. When we are in conflict, we already feel vulnerable at least on some level. The thought of exposing ourselves even more to our adversary can prevent people from exploring creative options.
Conflict can lead people to feel that the world has narrowed and that there are only two options – my option or their option. In reality these options exist on a spectrum and there are many shades of grey between our preferred solution and the other person’s preferred solution. Exploring the spectrum requires creativity.
Mediation can provide the safe space for people to be creative and explore some of the options along the spectrum. In mediation, when parties are trying to come up with options there is no judgment and no commitment. Evaluation comes later in the process. As everyone has experienced, if you are trying to be creative and come up with ideas, the one thing that is sure to stop the flow of ideas is judgment.
If you are in conflict, then try and be like the creative Goat. There is more than one way to make a cake. Or end a post.
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.