Those of you who have mediated with me, or attended my MCLE course, may have heard me describe negotiation as a necessarily competitive process that paradoxically requires cooperation in order for the parties to reach their shared destination, i.e. resolution.
The process is competitive in that each party understandably desires to be the “winner” by obtaining the most favorable outcome that is possible, but the process requires cooperation because a negotiated resolution cannot be achieved without concessions and compromise.
Sometimes, the competitive nature of negotiation thwarts the process from the very start, with each party staking out an extreme position, thinking it will enhance the likelihood of that party being the “winner.” All too often, however, the strategy fails and negotiations end abruptly. A better strategy will usually be to take a more measured approach to the negotiations, sending a clear message of cooperation, i.e., that you want to work together to achieve a mutually acceptable compromise.
Sometimes, the need to be the “winner” thwarts the process at the very end, with each party refusing to make the final concession – often leading to the suggestion that the mediator assume responsibility for the outcome by making a mediator’s “proposal” (more about those in a future edition). A better strategy may be to let the other party be the “winner” that day, especially if you think that you might someday find yourself involved in future negotiations with the same person and that you might want or need that person to return the favor.
The point to remember is that when each party insists on being the “winner,” it may not be possible to reach a resolution – and when the parties fail to reach a resolution that might otherwise have been possible, everybody loses.
As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Best regards,
Floyd J. Siegal
fjs@fjsmediation.com