Today we learnt that Kenny Rogers passed in his sleep at the age of 81.   His song "The Gambler" is so vivid in my memory from childhood.

He made it through five marriages, a successful recording career and a business empire.  I like to think that the wisdom of those lines in the Gambler kept him  one step ahead of the game.

You've got to know when to hold'em
Know when to fold'em
Know when to walk away
And know when to run

You can see how these words can guide even the worst negotiator. In negotiation you need to know how to do all of these things.

​Hold'em
You need to be determined about your priorities, but importantly you need to know which those are.

Fold'em
You need to know when to give up on something that is unrealistic or counterproductive.

Walk away
You need to know when to leave the table and either quit the fight or find another way forward.

Run!
And then sometimes you need to run.  Whatever it takes to get away from the table, close the deal or end the conflict, you need to do.

Thank you Kenny Rogers for your wisdom and your music.

Nemesis by Agatha Christie

In 'Ordeal by Innocence', Miss Marple goes to visit an old friend who is marrying into her employer's family. As she reminds us there is a virtue in being non-partisan.

[SPOILERS AHEAD]

Sadly for Miss Marple's friend, there is no happy ever after for her friend, Gwenda. Despite, losing her friend, Miss Marple does not leave the scene.  Although initially viewed with suspicion by some in the family, she perseveres with her moderate approach i.e. not  fiercely partisan for her murdered friend, but open to hear any information from anyone. 

In any negotiation or conflict, people will have a tribe behind them who supports and advises them. In every tribe there are people who play different roles, hawks, doves and moderates.

The hawks are easy to identify.  They will be the ones advocating for the scorched earth, 'take no prisoners' approach.  They are fiercely partisan.  The challenge is that they can encourage or guilt parties into an adversarial approach. They will caution against concessions and will resist collaboration.  For some parties, it can be challenging to resist the hawks and make an agreement.  Parties can be embarrassed about 'disappointing' their hawks.  They may reject a solution if it means they have to explain it to the hawk. I have seen parties in mediation, hesitate over a solution because they do not want to have to tell the hawks that the war is over and that they settled.

The doves are also easy to identify. They will counsel caution and unilateral disarmament. They will suggest that peace is worth it any price.  They will be heavily focused on the costs of unresolved issues and the difficulties of holding out for a collaborative solution.  They will be trying to spare their favoured party from the pain of ongoing conflict and will preach the benefits of taking what has been offered rather than continuing to work on a solution. For parties, it can be difficult to hold out against the doves.  Their counsel sounds wise, but they are focused on accommodation to avoid conflict / negotiation rather than resolution. 

Finally, the rare moderate. A moderate will acknowledge your pain and your positions, and they will be able to acknowledge that the other side may have pain and positions. They may be able to express the "other side's" thoughts in a manner that you can hear them. They are rare in the real world. If you have a moderate in your tribe, seek them out.  They will be able to help you consider your perspective may not be the only one. They will help you to see all the sides.  Not agree with all the sides, but at least see them.

Miss Marple is a born moderate. Her mind can see multiple sides to any question. She can appreciate that her favoured perspective (that of her murdered friend), is only one perspective in the tangled web of relationships. Using her ability to understand many perspectives is a key to unlocking the identity of the murderer.  In conflict and negotiation, see if you can find your moderate.  If you are supporting a friend in conflict / negotiation, see if you can be the moderate in their tribe.

Finally I have reconciled my love of detective fiction with ADR in this new series “What Miss Marple knows…about Negotiation”.  Over the years, I have eagerly watched each iteration of Miss Marple bring their own personality and physicality to the character. Across all the Marples, there are some constants. In the next few weeks, I will be using Miss Marple as a lens for negotiation skills.
 
This week, the “4.50 From Paddington”, which was made for television with Geraldine McEwan and her birdlike attributes, with Margaret Rutherford (in “Murder, She Said”) and with Joan Hickson (my personal favourite).  
 
(SPOILER ALERT!)
 
As those who have read the book / seen the filmed versions will know, whilst sitting in a train Miss Marple (or a friend, depending on the version) watches as another train flashes past.  In one carriage, a woman is being strangled. Although the authorities are alerted and the train is searched no body is found and the story is dismissed as a story dreamt up by an excitable, old spinster.  The viewer must have fallen asleep while reading her detective book and dreamed up the murder.
 
For some little old ladies, the belittling attitude of the police would be enough to deter any further action.  But not for Miss Marple. One of her key qualities is tenacity. 
 
The ability to persevere in the face of obstacles is a quality much needed by negotiators.  I recently read Chris Voss’s “Never Split the Difference”.  As an FBI hostage negotiator, Voss worked in life and death negotiations.  He explains how when people hear ‘no’ in a negotiation (or mediation) they crumble as they believe that the negotiation is over.  It can lead to a party stopping the process or becoming disconsolate. Voss argues that ‘no’ is the start of a negotiation and not the end. He argues that we need to learn to persevere.
 
In mediation, I can see this happen for parties in real-time.  A proposal may be rejected and both parties will feel that this is the end of the negotiation. They are ready to give up because the other person did not offer what they wanted, or accept what they offered. They sometimes say, “I knew this wouldn’t work”. Their fears are confirmed.  It is the end.
 
In reality, it is the beginning. Negotiation is a process, a dance, and it requires multiple steps.  As a mediator, when a party rejects a proposal, I try and coach the party for a “no, and…”.  Rather than just reject a proposal, parties need to persevere and make a counter-proposal.  This is the dance element of negotiation. It requires perseverance from parties.
 
Are there elements of the proposal which can be built upon for a counter-proposal?  Are there issues which were not addressed which could be add-ons to the counter-proposal which may be relevant for one or other party? What would be easy for you to offer which would have value for the other side?
 
Miss Marple would know that in negotiation, perseverance is a virtue. 

The human brain is a wonder.  One of the downsides of our human brains is that we are hard wired to focus on the negative and to focus on loss.  It is understandable.  In the days when we had to fight for survival, we needed to focus on things that were dangerous or worrying.  You might enjoy the warmth of the sun after a long winter but it wasn’t going to mean the difference between life and death.
 
This inherent bias now serves us poorly when we are in conflict. We focus on the losses to the exclusion of gains. In MRIs, our brains light up like Vegas when we feel that we have lost something, even if that loss is illusory. We struggle to let things go and recite endlessly the wrongs we have suffered. While this may be justified, it makes for a poor negotiation strategy.
 
I have seen people in mediation argue passionately for a specific outcome and then when the other side agrees, they move to the next outcome they desire.  We need to take a moment and enjoy the win.  We need to pause and express gratitude for the agreement.  
 
People often say, “why should I say thank you, this is what I am entitled to”. The reason is simple, because you are in a negotiation. In negotiation, you need to give to get.  If you want to get something, this is easier if you can acknowledge the other person.  The chances are that they do not want to give up this outcome, but they are willing to do so for another more important outcome to them. Or, the mediator in me believes they may have listened to the underlying interests and be trying to meet them. Either way, whether this is a strategic move or a genuine intention, acknowledgement of the win, leads to better outcomes.

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: 
 

• what has been gained, 
• to list the items which meet their self-identified needs
• to highlight what the alternative to a negotiated agreement will look like e.g. next steps / process

 
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.

​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?

• ​Focus on your priorities: understand what your goal is in the negotiation?  you may have many needs / wants e.g. cheesy biscuit / salmon chew / squeaky toy.  Identify the priority, reflect on what it is you really need to achieve and what would be nice to have. Once you have done this - remember it.
• Focus on the wins. As humans we are wired to respond to perceived losses more than to focus on wins. In the midst of a mediation, when someone has been able to achieve their priority goals, I often hear, "but what about ....?".  My role requires me to remind parties that in negotiation, there will be wins and losses. Dogs know this instinctively.  If a dogs "wins' the salmon chew, they will not be complaining about the loss of the cheesy biscuit.  A dog will devote their attention and focus to the win.  As humans, we could learn this lesson about how to focus on the wins and accept that the losses were part of the compromise to achieve resolution.
• Focus on giving what you can to get what you need: dogs know that in order to get what they want they will need to give something. This may be a paw, or a sit or an adorable head tilt. As humans in negotiation, we sometimes forget this easy lesson.  We repeat out demand, perhaps louder and more insistently.  We are disappointed when the other person does not give us what we want.  Dogs understand the basic negotiation principle of "you need to give, to get".  The key in negotiation is understanding what is easy for you to give and valuable for the other party to receive.

Next week, what do dogs know about conflict?

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?