You can’t always get what you want
But if you try sometimes you just might find
You get what you need
– Rolling Stones
I teach a negotiation course several times a year at the University of Toronto School of Continuing Studies. I am always surprised at the number of students who come into the course thinking that being a successful negotiator is all about “winning” – getting what they want.
My hope is, by the end of the course, they have learned that truly successful negotiation is about finding a way for both (all) parties to get what they need.
Dispute resolution is about negotiation. Most litigation settles before trial. Many arbitration claims do, too. Mediation is just a facilitated negotiation.
But many dispute resolution professionals, including lawyers and their clients, are surprisingly poor negotiators. Perhaps it is the adversarial mindset that takes hold in an intense dispute situation.
Lawyers and clients who are extremely pragmatic and effective when negotiating a commercial contract or other voluntary agreement, dig themselves into unreasonable positions when there is a dispute and they believe they (or their clients) have been wronged.
What they want is validation, vindication or revenge:
“I’m right; you’re wrong.”
“I win; you lose.”
What they need is usually something very different:
Compensation for a real loss.
Acknowledgement of a moral or legal right or obligation.
Or simply a future without conflict.
The interest-based model of negotiation — taught at the Harvard Program on Negotiation, the groundbreaking book Getting to Yes and elsewhere — is a powerful tool for helping parties focus on needs, rather than wants; interests, rather than positions. But too many negotiators either aren’t aware of this model or reject it as being great in theory, but not in practice
When faced with an aggressive, positional negotiator on the other side, they revert to positional bargaining themselves. They react to “difficult” people by becoming adversarial. Or they try to avoid an issue, until that becomes impossible, then take a hard line to avoid giving in or compromising.
Getting to Yes was followed by Getting Past No, which I think is a more-important book, because it deals with the inevitable opposition a negotiator faces when trying to resolve any dispute.
Getting to Yes was originally published in 1981 and Getting Past No in 1991, so their ideas are not new, but in my experience, most people – especially lawyers – have a hard time using them consistently.
Maybe it’s our legal training, which teaches us to focus on rights and obligations, to avoid risk and ambiguity, and the careful parsing of language. We can easily lose sight of the bigger picture. And we often react negatively to others who take contrary positions.
The “right solution” in any situation is perfectly obvious to us; just as a different solution is equally obvious to our counterpart. Neither side is willing to make the effort to understand the other side’s perspective (although even talking about “sides” in a negotiation implies that there must be more than one perspective on the problem).
Getting Past No author William Ury has since published several other books on these and other negotiation challenges, including The Power of a Positive No: How to Say No and Still Get to Yes (2007) and
Getting to Yes with Yourself (And Other Worthy Opponents) (2015).
The lesson of these books, and all the other thinking about interest-based negotiation over the past 35 years, is the importance of clearly and resolutely looking for ways to satisfy the needs of the disputing parties, rather than getting hung up over their mutually-exclusive wants.
And if you try sometimes you just might find you get what you need.