Once again, my colleague Linda Bulmash has written a concise article on negotiation. In her September 2011 article entitled “12 Steps for Effective Negotiation” published by the Los Angeles County Bar Association (Vol. IV, No. 8), Ms. Bulmash summarizes a “practical and pragmatic negotiation strategy” put forth by Dennis Ross in his latest book Statecraft – How To Restore America’s Standing in the World (Farrar, Straus and Giroux, 2011). Mr. Ross was the Middle East envoy and chief peace negotiator in both the George H.W. Bush and Clinton administrations. His twelve steps for effective negotiation include:

    1. Know what you want/ know what you can live with.
    2. Know everything there is to know about the decisions makers on the other side.
    3. Build a relationship of trust with the key decision maker(s).
    4. Keep in mind the other side’s need for an explanation.
    5. To gain the hardest concessions, PROVE you understand what is important to the other side (be able to answer their WIIFM)
    6. Tough love is also required: understanding and empathy is good BUT only goes so far – make sure they understand there also are consequences.
    7. Employ the good-cop, bad-cop approach carefully.
    8. Understand the value and limitations of deadlines.
    9. Take only calculated risks.
    10. Never lie, never bluff-risk is too much damage to your credibility.
    11. Don’t avoid differences: get differences in the open and discussed to eliminate future hard feelings over the resolution.
    12. Summarize agreements at the end of every meeting.

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The first step is crucial: Know what it is that you want or at a minimum, what you can live with. I have participated in many a mediation in which the plaintiff did not have a clear notion what she wanted or could live with.

The second and third step actually relate to an old Chinese concept – guanxi or “relationship.” Connections and relationships matter. Why? Because of trust; people will negotiate with people they trust and with whom they are comfortable. Thus, in any negotiation, it is important to get to know the other party so that you can build a relationship and trust.

The fourth step is related to the first: you must know within yourself, the reasons why you want a particular result, so that you can explain it to the other party. Typically, people do not change their positions (i.e. are not willing to concede anything) unless and until they receive new information (i.e. an explanation or a rational for it!) Thus, to have the other side see your point of view, you must have a reasonable explanation for why you want what you want.

At the same time, (and this references the fifth step), you must be able to explain “What’s In It For Me” (i.e what is in it for the other party) or why it is beneficial to the other party to accept or agree to your proposal. In doing so, you can explain the consequences, i.e. that there are consequences either way – if the other party accepts or rejects your proposal (step no. 5). But, at the same time, you should not bluff your way through it or negotiate with whimsy (step nos. 7 and 10). Your credibility and trustworthiness are on the line, and so you must walk the fine line between being honest and sincere and over exaggerating and/or misrepresenting.

The one thing I like about mediation confidentiality is that it allows opposing parties to be extremely candid with each other without fear of reprisal. Again, I have found that only when the parties really admit what are the true issues and/or what is bothering them, does the matter start moving towards resolution. An issue cannot be resolved if people won’t say or don’t say what is the real issue , in the first place. Thus, step no. 11 is extremely important: put out in the open what the issues really are so that they can be dealt with.

The last step – no. 12 – is simply active listening and reframing: make sure you heard and understood everything correctly and that the other parties heard and understood each item in the same way you did. That way, each of you walks out of the negotiation with the same conclusion: that the dispute has been settled.

Looking at these 12 steps, they seem to be so simple in implement but, in the real world of disputes, they are not always so easy. But, they are still worth the effort and will make reaching a resolution easier!

. . .Just something to think about!

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