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The Bar Bulletin
Jax Daily Record Thursday, Sep. 1, 202203:00 AM EST

A better way to get to ‘yes’ in disputes

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Positional and principled negotiation can lead to different outcomes.
John McCorvey Jr.

By John McCorvey Jr. | Florida Supreme Court Certified Circuit Civil

Legal disputes are rife with emotions. It doesn’t matter if the parties are arguing over a property line, a business contract, or responsibility and compensation for personal injury or property damage.

When these cases are mediated, it can be tempting for the mediator to ignore emotion and underlying interests and simply focus on getting everyone to agree to a dollar amount.

This method might seem like it’s the most efficient, however, there’s a not-so-secret manual to negotiating that the best neutrals often refer to as “the mediator’s Bible.”

It’s a book out of the Harvard University Negotiation Project titled “Getting to Yes: Negotiating Agreement Without Giving In” by Roger Fisher, William Ury and Bruce Patton.

The book wasn’t necessarily written for mediators, but its comprehensive set of best practices and principles for negotiating disputes is useful for even some of the toughest mediation challenges.

In the book, the authors break down negotiation into two broad categories: Positional vs. principled negotiation. Which is better?

In positional negotiation, a person focuses on each side’s position and demands.

For example, in mediation, one side demands a specific dollar amount in damages. A mediator who is taking a positional approach will focus on just the monetary positions of both sides.

The neutral might then become more of a go-between, ferrying offers back and forth between the parties involved in a dispute with the hope that eventually the two sides will meet in the middle and come to a settlement.

However, focusing on positions only is like assuming an iceberg consists only of the visible portion emerging from the water and ignoring the 90% that’s below the surface.

This approach tends to produce anxiety among the mediation participants because people will inevitably fill in the unknown with a suspicion of ill will.

Principled negotiation focuses on that 90% that’s beneath the surface of any dispute. It’s hard on the problem and easy on the people, whereas positional negotiation is hard on the people and soft on the problem.

When mediators take a principled approach, they look at the mediation process as a collaborative effort to solve a mutual problem. Furthermore, taking this approach allows the parties in a dispute to reach an agreement that satisfies their underlying interests.

In this style of negotiation, the mediator will explore why a particular position is being relayed. This extra step helps avoid the suspicion and anxiety that can build with positional negotiation, thus preventing the parties from reaching an agreement.

A classic example from the book involves a story of two boys fighting over an orange. From a positional standpoint, the most obvious solution would be to cut the orange in half and give one half to each boy.

In that situation, however, one boy may eat his half of the fruit and throw the rind away and the other boy throw his fruit away and use only the rind.

Had a mediator questioned the boys and then listened to each boy’s underlying interests and needs, they might have divided the orange into fruit and rind, thus better satisfying both boys’ underlying wants and needs.

There’s a lot more in getting to yes that can be covered in a short article. Besides the principles discussed here, the book also contains useful advice for mediators on better understanding negotiations and the roadblocks they might face.

The book is a valuable tool in the arsenal of any neutral who desires to improve their mediation skills and mediation outcomes and help mediation participants come away from the mediation with satisfied interests.

By satisfying interests, the parties can achieve their goals and have a sense of resolution that allows them to move on from the conflict.

In the end, that should be the goal, not just one side “getting the best” of another.

John McCorvey Jr. is a neutral in the Jacksonville office of Miles Mediation & Arbitration.

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