Tag Archives: Mediation

The Many Faces of the Negotiator

This post explores the different types of negotiators. Attached is the power point from a short presentation that I deliver on The Many Faces of the Negotiator which illustrates the different types of negotiators who participate in the negotiation process. Unfortunately some of these people give the professional negotiator a bad name. At the end of the day the Reptile, Shopper and Tuff Guy are people who masquerade as negotiators and cloak their fatal flaws through their style. Even though they may experience occasional success it is merely coincidental. Only a negotiator acting in a professional manner with a clear “eye on the prize” will experience success on a regular basis. I hope that this presentation will be of help to the reader as it shines a bright light on bad behavior that in some social circles passes for skill. Enjoy The Many Faces of the Negotiator.


Setting a Precedent: Comfortable Excuse

Lately the inspiration for these blog articles has come from situations arising from behavior exhibited in classroom exercises or discussions that followed and this one is no different. In another article on this blog I have discussed the Attica prison riot from a negotiation perspective and use it as an exercise (The Big House Case) in The Smart Negotiator!® course. Frequently, for the team representing the State of New York, it is common to hear participants say “we need to be careful not to set a precedent.” Intellectually, I understand what they are saying but in reality what does it mean and how does it affect the outcome?

Wikipedia defines precedent as “establishing a usage, tradition or standard to be followed in the future.” Unfortunately for some negotiators this definition of precedent conveniently translates into “nothing should ever be done for the first time.” Therefore, the word precedent frequently becomes an acceptable rationale not to negotiate. Psychologically, the status quo is a more comfortable place to land no matter how defective it is. Any change to previous decisions or agreements that might resolve the dispute increases the amount of tension and responsibility for the current negotiator. In this particular case, the idea of setting a precedent becomes a self-imposed priority by the negotiators that clouds their vision while diverting their attention from the prize which is creating a quality agreement. Moreover, this type of thinking transfers the responsibility for the outcome of the negotiation to those who preceded them.

What is even more intriguing about the exercise on Attica, is the participants are aware that during November of 1970 at New York’s Auburn State Prison prior to the Attica riot, a request to host a Black Solidarity Day was denied. As a result the inmates staged a protest and eventually took 30 guards hostage. The State negotiated a deal with the inmates to release the hostages unharmed. In exchange the State agreed that there would not be any administrative and/or physical reprisals. As per the agreement, the hostages were released unharmed. However, the State retaliated breaching their part of the agreement by administering physical punishment to the inmates and transferring others to Attica. Did the State set a precedent prior to the Attica riot with this behavior? Was the dye for Attica cast a year earlier at Auburn? The answer would have to be a resounding yes if the negotiators representing the State in the Attica exercise did not want to set a precedent.

In closing, I would like to leave the reader with a final thought. During my tenure as a training professional, I have discovered that in a corporate training environment the participants are very intellectual and say all of the right things. In open discussion participants pay homage to words like inclusiveness, diversity, integrity, relationship building and Ethics as if they are meaningful. However, as an instructor I can’t make the mistake to assume this is the way they act when placed in real-life situations that require them to follow these articulated principles. Too often I have witnessed well-educated professional people when placed in a real-life scenario like the Attica case exhibit a complete breach of professional discipline. It is very disappointing to discover when “the money is on the table” they are more likely to follow their most primitive instincts employing the use of power and threats to shape a deal. Unfortunately, by proclaiming ” we need to be careful not to set a precedent” they are afforded this opportunity.

Leverage: The Bastard Child of Coercion

Recently, “leverage” has become a popular word that found its way into public conversations regarding “fiscal cliffs”, “debt ceilings” and “sequestrations.”  Who has leverage? Who wants it? What are you going to do if you discover that you have it? Ah yes, the dilemma surrounding leverage is a complex one.   According to Wikipedia, leverage in negotiation is the “ability to influence the other side to move closer to one’s position.” In this definition, the word “influence” implies a persuasive effort.  However, at the functional level, leverage removes the free will to choose by severely limiting the viable choices. To translate, leverage means you have to give me concessions free, or I will do something harmful to you personally, to your company (an entity) or to your country.  In reality, leverage is simply the bastard child of coercion.  At the street level people get it.  This concept is clearly reflected in the way participants describe a negotiation manifested in phrases like “we have them over a barrel” or “we have them by the shorthair”. However, civilized people don’t use phraseology like this because it sounds too much like coercion, which has a negative connotation.  Consequently, at the executive level we put on our suit and tie, stand coercion on its hind legs, put a smiley face on it and proclaim “we have leverage!”  Doesn’t that have a nice professional ring to it? A wise man once said, if it looks like a duck, walks like a duck, and quacks like a duck, it must be a duck. 

Why do negotiators want leverage so badly?  Mainly because they don’t have to negotiate a deal, but rather simply dictate the terms of the surrender.  As you can see, leverage can serve as a wild-card in the negotiation process by becoming a shortcut that retards the skill development of the players who rely upon it.   I am frequently asked in class “how do I negotiate when I don’t have any leverage?” The answer is simple: negotiation is a skill, leverage is a tool. Develop your skill and know the difference between the two and you will be fine.

Appeasement and the Infamous Munich Agreement

I was in a class one fall day with a group of perfectly nice people and somehow we got onto the subject of Neville Chamberlin which naturally led to the comment that “the United States doesn’t negotiate with terrorists.”  I asked:  “why to this day do we so strongly condemn Neville Chamberlain instead of Herr Hitler the party that breached the Munich Agreement?”  It seemed like a legitimate question at the time. Suddenly the worm had turned! I could see it in their eyes as they turned on me like a pack of wild jackals coming to pick my bones clean. The room literally erupted with uncontrolled passionate dialogue regarding how he should have known better and perhaps implying it was a cowardly act at best.    I eventually put this fire out and moved on to try and salvage the rest of the day.  However, as a result of this incident my curiosity had been peaked and I decided to look into the Munich Agreement because I was not so quick to make Neville Chamberlain out to be a fool or a coward as he is conveniently portrayed by many.  It is easy from the vantage point of the 21st Century to articulate with such conviction and clarity what should have happened in 1938. If you listen closely you can hear the echo of every armchair historian screaming “it’s a bad deal turn back don’t sign it or bad things will happen.” To be fair to Neville Chamberlain let’s take a closer look at the Munich Agreement to examine what really happened and place it into proper context.

The Munich Agreement was signed on September 29th 1938 by Neville Chamberlain (England), Edouard Daladier (France), Benito Mussolini (Italy) and Adolph Hitler (Germany).  The agreement transferred the Sudetenland of Czechoslovakia to Germany in exchange Hitler agreed that Germany would not make any further territorial demands in Europe.  Neville Chamberlain and Edouard Daladier employed the diplomatic philosophy of “appeasement” which is a last ditch effort aimed at avoiding war by making concessions to the aggressor.

Furthermore, the Munich Agreement was signed approximately 20 years after the end of the First World War that left France with 1.3 million dead and Great Britain with 908,000 dead.  These figures don’t include the missing, POW s or wounded.  By contrast the United States lost approximately 126,000 lives in the Great War.  Additionally, Belgium and France had their countries physically devastated by the Great War.  Consequently, their appetite for another European war on the heels of the last one was not very large.  In fact prior to the Munich agreement a public poll in March of 1938 asked the English people “should Britain promise assistance to Czechoslovakia if Germany acts as it did towards Austria?”  43% said no and 24% had no opinion.  Even as late as February 1939 after the signing of the agreement, the British people saw some value in Chamberlain’s strategy.  When asked “which of these views comes closest to your view of Chamberlain’s policy of appeasement?”  28% said  it will lead to lasting peace in Europe while 46% believed that it will keep them out of war long enough to rearm.  

Historical voyeurs want to ignore the psychological impact the carnage and destruction left behind by the Great War had on the participants of the day and examine the Munich Agreement in a vacuum.  This is a luxury that Mr. Chamberlain didn’t have.   It is easy today to cherry pick the facts and conclude that this was a bad idea on the part of England & France.  However, had Hitler fulfilled his end of the agreement this would have been a great agreement.  Knowing what we know now, in essence Chamberlain was trading the Sudetenland for the lives of 60 million people.  It has been estimated that 2% of the world’s population was killed in the Second World War or the equivalent of 60 million people.  If you are judging from the 21st Century you might want to include these facts to provide proper context.   Would you make that trade? What did Chamberlain loose by signing this agreement? Why not make Hitler responsible for breaching the agreement rather than Neville Chamberlain the culprit for trying to avoid another world war on the Continent? Have we become that casual with human life that an attempt to save the lives of 60 million people is viewed as a bad idea? These are questions that deserve honest answers before we can condemn P.M. Chamberlain.

Legacy – What has Neville Chamberlain left us?

The actions of Neville Chamberlain had a very profound effect on Geo-Political diplomacy moving forward.  The legacy of the Munich Agreement reared its head in 1962 and almost led the United States to a nuclear war during the Cuban Missile Crisis by clouding the vision of the players.  President Kennedy was being accused of being an “appeaser” by the military leadership because he wanted to try diplomacy to avert a nuclear exchange with the Soviet Union. With Neville Chamberlain clearly on their mind the military advisors manufactured immense pressure on President Kennedy to take military action against Cuba because they didn’t want another “Munich.” However, we can say with certainty had President Kennedy not chosen to negotiate with Nikita Khrushchev a nuclear exchange would have occurred taking the lives of millions of people both American & Russian.

In the United States the Munich Agreement has gone through the complete evolution process and now has morphed into “we don’t negotiate with terrorists.”  In the 21st century any world leader or group we have a conflict with we compare to Hitler and of course any attempt to negotiate with Hitler-types would only produce another Munich Agreement.  This description establishes a perfectly constructed enthymeme which allows the average person the ability to quickly make the right judgment in a complex geo-political situation.

The final step in the complete maturation of the Munich Agreement occurred on September 11th 2001 when suicide hijackers who were labeled “terrorists” flew their aircraft into the World Trade Center and Pentagon buildings killing approximately 2500 US citizens.  Almost immediately the name Hitler was replaced in the American lexicon with “terrorist” that broadens the scope of possibilities for inclusion into the “non-negotiable” club.  Consequently, any American official not wanting to be accused of “appeasement” can conveniently skip the diplomacy stage altogether and move directly to the use of WMD as a front line acceptable option to resolve geo-political conflict by claiming “we don’t negotiate with terrorists.”    On that September day in 1938 Neville Chamberlain had no idea the lasting effects that his actions would have on future governments.  It has completely changed the way we talk about geo-political events.   Today we use words like negotiation, compromise and appeasement interchangeably collapsing them into synonyms complete with all of the negative connotations associated with Munich.  So what has Neville Chamberlain left us?  He has left every world leader a “hall pass” for their actions that can be rationalized by claiming they want to avoid another Munich.  It is the gift that keeps on giving.  Consequently we conveniently have Neville Chamberlain to blame for ALL of our geo-political actions otherwise we might have to take responsibility ourselves!

“I Can See Clearly Now…”

In The Smart Negotiator!® course I am constantly stressing that participants need to improve their “vision” if they truly want to be a high quality negotiator.  Hence, the question:  what does a skilled negotiator “see” that other people who are engaged in the same situation simply miss?  One of the many aspects of vision, is the ability to distinguish between obstacles and challengesNegotiators see challenges to be overcome or worked around to keep the process moving.  Shoppers, on the other hand, see obstacles, which truncate the negotiation process and block the development of the deal. 

This point is often illustrated during a labor/management exercise presented during The Smart Negotiator!® course.  This case has a distinct degree of difficulty, due to the complexity of union contracts.   Inevitably, the lesson of “vision” is on full display as the parties try to navigate through the exercise.  As part of the negotiation context, a hypothetical company owns a tourism business in the nation’s capitol.  For a number of reasons, its drivers are not required to possess a CDL (commercial driver’s license) to operate the buses.  On its face, this issue appears to benefit the employees by providing people without a CDL who have the appropriate skill set to be gainfully employed.  However, drivers working at any of their competitors that are required to possess a valid CDL, earn 30% more in wages.  Moreover, as part of the situation, the company can get a $300,000 rebate in their insurance premiums if they get all (35) of their drivers a CDL.  If the company paid for the training and the employees were “on the clock”, the total one-time spend would be $277,900.  However, there’s a problem:  30% of the drivers are functional illiterates. 

Let’s apply the “vision test” to determine how participants view this situation. A shopper, seeing obstacles, will claim with conviction, that if the company pays for the training, then the employees will leave to get a job with a competitor for 30% more pay.  This shopper sees an obstacle that is framed as an intellectual dead-end forcing the negotiation to take a different direction.  However, the negotiator responds by recognizing the challenge in the situation, claiming that if the company pays for the training of the CDL, the employee must agree to stay for 2-years or pay back the prorated amount of training cost if they leave. 

What about the functional illiterates that are driving for this company?  How is this fact going to be handled by the participants?  As you might guess, the shopper is fatalistic in their assessment (vision).  “These people will never be able to pass the classroom part of the CDL requirement because they can’t read”.  Another manufactured dead-end, requiring a change of direction in the negotiation.  The negotiator understands that these drivers are skillful enough to pass the road and range portion of the CDL blindfolded.  The challenge that the negotiator sees is getting them to pass the written portion of the test.  Many states allow someone to read the written portion of the driver’s test to people who can’t read.  Remember this is a knowledge test not a reading test. This option could be one of the many ways to work around this challenge.  There are other ways to mitigate this challenge–if you are looking!

In this case, as a result of the negotiator seeing challenges, instead of obstacles, they are able to negotiate an agreement that will allow the company to reduce its insurance premiums by $300,000 annually. If you are the owner, this savings is worth the effort.  And if you are the negotiator, it is your professional responsibility.  

Is that a shopper I hear?  Or just Johnny Nash singing “I can see clearly now, the rain has gone.  I can see all obstacles in my way”?   Ah, but through the eyes of The Smart Negotiator, “Gone are the dark clouds that had me blind.  It’s gonna be a bright, bright sun-shiny day”.

It’s A Matter Of Principle

How many times have you heard “it’s the principle of it.”  Be assured that when you hear this during a negotiation, nothing good is going to follow.  This is a red flag that things have just turned south and that there will be no rules of rationality moving forward.  In negotiations, the “matter of principle”, is code for “I want to win”.  It is a proclamation that becomes an excuse to be difficult and inflexible.  It is an emotional response, rather than an intellectual one and is an opt-out clause when it comes to responsible, professional negotiation. 

 A Smart Negotiator must realize that once the “matter of principle” is invoked, the chances of making a quality deal are not very good.  Corrective action may be necessary to salvage the negotiation.  One method in accomplishing this would be to call a caucus and reframe the facts, in order to recalibrate the vision of the parties involved.  Following are a couple of examples that illustrate the devastating affect that the “matter of principle” can have on the outcome of a negotiation.

 The Smart Negotiator!® workshop often uses a labor-management case as an exercise.  Teams typically negotiate in good faith to the point where they almost have a deal.  It is not unusual for the labor team to make a request for something to close the deal and reach a final agreement.  In this instance, labor asked for one additional holiday to close the deal.  At this point, many times the management team’s vision shifts and they flatly refuse to give an additional holiday, estimated to cost the company between $7000-$9000, on the grounds that “it is the principle” of it.  Consequently, the labor team becomes emotional and decides to go on strike, costing the company $30,000 per day.  The management team concludes that they will not spend $7000-$9000 to close a deal that would allow the company to continue to earn $12M/year profit, but allows the company to lose $30,000 per day in a strike.  What happened to the negotiator’s fiduciary responsibility to the company? Reframing the facts and removing the emotion from the situation would sound like this:  “You can pay a maximum of $9000 to close the deal and preserve the $12M/year profit or cost the company $30,000 per day of the strike and still not have a deal.  If the strike last 3 days the cost is 10 times ($90,000) the cost of one holiday.” Is this a matter of principle?

 Here’s an example from Small Claims Court:  A former employee (Plaintiff) filed a suit against its employer (Defendant) for $3000 in back wages.  The employee claimed he was owed $3000, but had no records to support the claim.  The employer acknowledged that he did owe the plaintiff some back wages and wanted to reach an agreement through mediation. Consequently, based on their records, the employer offered to pay the plaintiff $1500 in wages minus $400 for the equipment (power washer) that the employee didn’t return.  In essence, the deal was a check for $1100 at mediation and the employee keeps the power washer.  The plaintiff’s response to the employer’s offer was: “No.  It is the principle of it.  An employer shouldn’t treat its employees in this manner.”  Without any records, the judge may rule in favor of the defendant, awarding $0 to the plaintiff.  The plaintiff had $1100 in his hand and the equipment, but chose to go to court.  Is this a matter of principle?

 The next time you are engaged in a negotiation and one of the parties claims “it is a matter of principle”, your Smart Negotiator alarm should go off.  If you want to be successful, don’t move forward with the negotiation until you recalibrate the vision of the other party– and this is a matter of principle!

Attica: A Deal Not Made

A Smart Negotiator clearly identifies the needs and wants of all parties involved in the deal, while staying true to the distinction between the two entities throughout the entire negotiation process.  By establishing the needs of all parties, the negotiator creates the foundation on which the deal is constructed.  Forty years ago, the line between needs and wants became blurred during negotiations to resolve a crisis at New York’s Attica Correctional Facility, contributing to a stalemate between the prisoners and the state that would eventually leave 39 people dead.

On September 9th, 1971 approximately 1200 inmates overran “Times Square”, the central intersection at the heart of the state prison in Attica and took control of D-Block.  38 guards and civilian employees were taken hostage. Three guards were beaten in the initial fracas, one of which would die of his wounds 2 days later. 

The root causes of the uprising were overcrowding, racism and poor living conditions.  Attica was designed to handle a maximum of 1600 inmates.  At the time of the uprising, however, Attica was home to over 2200 prisoners.  Approximately 75% of the inmate population was African-American or Hispanic, while 100% of the guards were white males. The prisoners wanted a more culturally diverse guard population to reduce the overt racism within the prison.  Living conditions were better at the Buffalo Zoo.  For instance, prisoners were only allowed one shower per week, one roll of toilet paper per month, pork was part of every meal and Muslim inmates were not allowed to hold religious services.

On the first day of the takeover, inmates created a council to negotiate a settlement with prison officials. Because of a credibility gap between prison officials and inmates, the prisoners also called upon a select group to “oversee” the negotiations and “verify” events.  This group included members of Congress, the New York State legislature, the Black Panther Party, the media and lawyers.  William Kunstler, “Brother Bill” as he was known to the inmates, was asked to represent the prisoners regarding legal issues and began serving as a mediator to try to broker an agreement. The inmates created a list of 31 demands to be addressed to resolve this crisis.  The Corrections Commissioner, Russell G. Oswald agreed to 28 of the 31 demands, most of which were already supported by state and federal law, but had been ignored by unofficial prison policy.   The initial 28 demands dealt primarily with living conditions. The 29th demand for “transportation to a non-imperialistic country for everyone in D-yard” was quickly dismissed by both parties.   The last two demands were more difficult. 

Demand #30 called for Superintendent Mancusi to be removed from his position immediately.  The prisoners wanted Mancusi replaced immediately with someone who would treat them like people, not animals.  The prisoners personalized this issue, which clouded their vision and left no flexibility to resolving it.  With the other 28 demands that dealt with living conditions having already been met, the prisoners’ needs in this area had been addressed.  The Mancusi issue, a want, could have been treated administratively by promotion or retirement at a later date. However, the shelf-life on any promise or agreement to satisfy this want needed to be longer than the immediacy of the moment. Since it was clearly a want, it didn’t warrant the significance that it was given.  As a result, this want was treated like a need and became a manufactured obstacle to reaching a final agreement.

Demand #31 demanded complete amnesty for everyone in D-yard.  The inmates knew the law. Once one of the guards died from wounds suffered in the initial takeover, it was clear that everyone in D-yard could be charged with felony murder.  Moreover, anyone in D-yard already serving a life sentence could now be subjected to the death penalty.  Realizing that someone would have to be prosecuted, the inmates didn’t want everyone in D-yard to be charged with felony murder.  From a negotiator’s standpoint, the inmates needed some protection from blanket prosecution for the prisoners. Concurrently, the state had a need to prosecute those responsible for the guard’s death.  In this case, the inmates lacked the sophisticated vision of a negotiator. They took a very myopic view and didn’t explore any other options except the binary position of complete amnesty for everyone.  This inflexible position became problematic, as again, it was a want, not a need.  Ironically, William Kunstler “saw” what was transpiring inside D-yard regarding this issue.  However, his vision also became clouded, either by his idealism or the drama of the situation, creating a disconnection from the reality of potential consequences.  This momentary lapse of discipline caused him to take his eye off of the prize, leaving this demand frozen in time as an obstacle to the deal.

Another level of complexity contributing to this situation is recognizing ALL parties involved in the negotiation, even if they are not physically present.  In this case, the absentee Governor of New York State, Nelson Rockefeller, was a major player.  Although the Governor was party to the negotiations from a distance, he had needs that had to be fulfilled as well. From a negotiator’s perspective, extending the deadline would have been very beneficial to all and may have produced workarounds for demands 30 and 31.  However, the Governor controlled the deadline and there was no flexibility. Nelson Rockefeller had a need to protect his political image. He was in the process of putting together his campaign for the 1972 Presidential election and had been criticized by the right wing of the Republican Party for being on the “liberal” side.  Therefore, anything short of an immediate end to the situation would be devastating to his political image.  Consequently, re-taking the prison in a timely manner, even if it turned into a bloodbath, was a political need.  The Governor could not risk being seen as soft on crime.  A brutal re-taking of the prison may not necessarily be viewed as a negative and may even enhance his image in the eyes of the electorate. William Kunstler didn’t recognize the selfishness of the Governor’s needs and was surprised on Monday morning September 13th, 1971 when New York State Troopers took control of D-yard firing over 2000 rounds of ammunition and killing 39 people (29 inmates and 10 guards). As many as 83 other prisoners were injured seriously enough to require surgery.  After the shooting stopped, Governor Rockefeller publicly praised the State Police for a “superb job.” 

There are many lessons to be learned from Attica on a variety of levels.  From a negotiations perspective, negotiators must demonstrate a genuine commitment to a deal that satisfies the needs of all parties. In this case, the negotiation process broke down when wants were confused with needs and the needs of one party were privileged over all others. The tragic situation at Attica State Prison was certainly not caused by negotiators, but could have been resolved peacefully, if everyone involved had acted like one!

Ethics: When Agreement Isn’t Enough

As a certified mediator in the General District Court for the Commonwealth of Virginia, I am continually faced with ethical issues and questions regarding professional responsibility to the parties of a potential agreement.     

Recently, I was presented with a landlord-tenant case–the plaintiff a lawyer and the defendant clearly less savvy. Both are male and of the same ethnicity.  The rent is $1600 per month with a $200 late fee.  The defendant is $5400 behind on the rent.  During the screening process, the plaintiff informed me that he was going to make this easy on me and proceeded to produce a thumb drive containing his version of an agreement.  He said, “all you have to do is copy and paste the agreement onto your letterhead and we are done.”  This raised ethical red flag number one.  Why do these parties need mediation?  What can mediation do that they have not already done themselves? Would it be ethical to truncate the mediation process and just copy and paste?  I decided it was not and proceeded with the orientation and the signing of the agreement to mediate.

 As we navigated our way through the mediation process, the defendant agreed that he owed the $5400 and would accept the payment schedule proposed by the plaintiff.  However, he did not agree with the $200 late fee per month moving forward.  The plaintiff was treating the back rent as an account. The tenant would be charged the full late fee every month, even if the rent was paid on time, because the tenant’s “account” was not current.  Therefore, if the tenant paid the rent on time for the next 12 months he would have paid $2400 in late fees and not one penny toward the principal.  As mediators, we are taught to check to determine how the proposed agreement interfaces with reality.  In this case, if the defendant went to court and judgment was entered against him in the amount of $5400 with 6% interest, in 12 months he would owe $324.  The proposed agreement would cost the defendant 8 times more than a court action, raising ethical flag number two the classic “manifest injustice.” 

 In this particular case, the mediation process seemed to be doing something “to” the parties rather than “for” them.   Moreover, the amount of the late fee appeared excessive.  Although the Virginia Residential Landlord Tenant Act does not specify the amount of allowable late fees, the judges in each jurisdiction determine a percentage that is “reasonable.”  In this jurisdiction, the maximum allowable late fee is typically 10%.  Anything exceeding this amount is deemed “excessive” and punitive in nature.  In this case the plaintiff charged a $200 late fee on a $1600/month rent which is 12.5%.

 Consequently, based on the two ethical red flags and the unwillingness of the defendant to agree to the $200 late fee/month, I stopped the mediation.  Immediately the plaintiff (lawyer) threatened the defendant by stating that he was going to be “evicted from the property and it was my (mediator’s) fault.”  This statement confirmed my belief that the landlord was trying to coerce the tenant into signing the agreement, which raised ethical issue number three.  Any illusion that the parties had free will to choose had been removed.

 At this point, I notified the mediation administrator that I had ceased the mediation process due to several ethical concerns.  The administrator could send them back to court and let the judge hear the case or have another mediator work with them.  She chose the latter and after 45 minutes, the “copy and paste” agreement was signed.  I was told that “if both parties agree and understand, we have done our job”.  In this case, agreement is not enough.   A mediator should be more than a clerk for the plaintiff.

 Isn’t It Ironic as a mediation mentor in the Commonwealth of Virginia, we are required to complete a mentee evaluation that asks:  “during the co-mediation did the mentee assist in developing an agreement that is balanced, fair, realistic, understood and not coerced.”  This description defines the standard and the mediator’s professional responsibilities in the development of an agreement.  However, in this case, the term “understood” trumped all of the others.  None of the other terms were applied, simply because “they agreed”.  Why use criteria to determine if you are professionally fit to be a certified mediator only to ignore that criteria when it really counts? I can feel the jagged little pill of irony lodged in my throat. Paging Dr Alanis Morissette!

The “F” Word in Negotiation

What is the negotiation “F-word”? It is the word “fair”. Who can say that they haven’t heard “this is a fair deal,” or “this is fair and reasonable.”–or better yet, “I believe that this deal is fair for both of us”? When someone tells you that their offer is fair, you should instinctively reach to protect your wallet. Hopefully, your hand will get there before they do!

The continual use of the “F-word” relative to negotiations provides an interesting perspective, as it is frequently and improperly imposed as the ultimate criteria to gauge success. A successful deal must be functional, not necessarily fair. A functional deal is where both parties have their needs satisfied. Yes, I realize that both functional and fair begin with the letter “F”, but please do not confuse the two. If you put together a fair deal and offer it to the other party and they reject it, what happens then? Here’s what happens: you find yourself selling the deal through persuasion rather than continuing to negotiate.

The persuasive approach tends to lead to arguments that are not germane to the deal-making process and create obstacles to closure. At some point, you become fatigued from this persuasive exercise in futility and your reptilian brain encourages you to offer your bottom line, usually heading for a marginal deal (perhaps fair, but marginal).

Moreover, I am not so sure there is such a thing as a fair deal. I have seen good deals and bad deals, but can’t really say that I have seen a fair deal. Any negotiator can make the case that their position or offer is fair, no matter how far off of the grid it really is. Those who are most vulnerable to a “fair” deal are introverts. Let’s face it, negotiation is a communication nightmare for most people. It ranks right up there with public speaking and snakes in terms of what causes the most psychological discomfort. Even in the most successful deals, there are more statements of rejection than those of acceptance. Consequently, agreeing to “fair” makes perfect sense to introverts and/or linear thinkers, because it causes them the least amount of psychological pain. When psychological discomfort becomes the determining factor in whether to accept or reject an offer, your ability to achieve a quality outcome is diluted. Unfortunately, this gives the other party a ripe opportunity to game you.

This is not to say that introverts or people without an “E” in their Myers-Briggs rating cannot be successful negotiators. On the contrary, some of best negotiators that I have met are classic introverts. They may be very good at it, but they will never like it. Nowhere does it say that you must enjoy the process of negotiation in order to do it well and create quality deals. Consequently, The Smart Negotiator uses “Q” for quality as the word of the day (and the ultimate criteria to gauge success), rather than the “F-word”.

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