Have you ever watched a child “negotiate” with their parents? The child takes a position on what they want, then they begin the nagging campaign, ready with every reason under the sun on why they should get what they want and then they just don’t move on that position until their parent finally gives in.
This is called positional bargaining and while you might think that adults don’t behave that way, sadly in my world as a contested estates lawyer, I see it happen all too often!
I think people have a perception from watching TV shows that the way to negotiate is to start at point well above their “bottom line” with the expectation that the settlement will end somewhere in the middle. The problems with this approach are that:
- the settlement becomes far more about a sum of money or things (rather than about what the sum of money or the things might mean to each person),
- the negotiation process itself can take months at significant legal cost (as lengthy “positional” emails and letters are exchanged by well-meaning lawyers) and
- the process can be counter-productive because playing this kind of “negotiation game” can become frustrating quickly, particularly when the offers first exchanged are usually ridiculous and unattainable.
Worse still, this type of approach can potentially derail a negotiation and can mean that parties approach any subsequent court-required mediation jaded and unwilling to attempt the process genuinely. In my experience this negotiation style often leaves both parties dissatisfied and can mean that parties re-neg on agreements made in pressured mediations.
Dividing up an Orange without cutting it in half
In my experience the most successful negotiations happen when all parties are committed to an interest-based negotiation style. All this means is that the parties try to reach compromise based on proposals that best meet the parties’ underlying goals and needs. This style of negotiation aims for mutual gains. It is about trying to find ways to give each party more of what they value, rather than engaging in a win-lose negotiation that can mean one party ultimately caves in just to avoid further conflict.
One of the simplest ways to explain interest-based negotiation is a simple illustration first used in the book “Getting to Yes – negotiating an agreement without giving-in” (by Roger Fisher and William Ury). Below is a story based on that illustration, that I often use to explain this concept to my clients who are facing conflict in their own family over an inheritance:
Imagine there are two sisters fighting over one orange. Both want the whole orange and the argument escalates before mum steps in. In an effort to stop the fighting and to be fair to both children she grabs the orange and cuts it straight down the middle to give each child an equal half.
But the whinging she was trying to put a stop to continues and escalates! Why?
Little Emily explains that she needed the whole orange to squeeze out enough juice to complete her orange cake for the school baking competition, and little Lucy wails that she needed the whole orange because her class was having a competition to see who could peel the longest orange rind off in one continuous spiral!
If only the girls had spoken to each other to explain what they wanted. If only mum had stopped to ask both girls what it is they needed out of the orange. Then both of their needs could have been met. Lucy could have painstakingly peeled off the orange rind and Emily could have then had the fruit to juice for her cake.
While it is a simplistic story, it does illustrate how a win-win solution might have been reached. It is why it is so important for clients to come to an understanding about what it is they need out of the proverbial orange and to think hard about what it is their family members might need.
It is also important to realise that people have different perceptions about what is a “fair” or “equal” split. It has been said that:
fairness like beauty is in the eye of the beholder
What seems fair to you, might be quite different from what another person thinks is fair (and perhaps even different from what a will maker thought was fair when preparing their will).
Sometimes outside the box thinking is needed to come up with solutions that meet everyone’s needs rather than resort to the imposition of a concept of fairness that only ends up leaving everyone disappointed.
This is a concept that has unending uses! Although I am yet to experience negotiating with teenagers, I am told that this style of negotiation can work magic. When used well, it can see long-lasting solutions reached in employment contexts, neighbourhood disputes, family law matters and in the “negotiations” we can have every day.
Revisit your values and step into another’s shoes
In my posts about visioning your “new normal”, identifying your values and making good decisions I set out some exercises to help work out your values and goals. If you are about to enter into negotiations with anyone, in any context I would encourage you to revisit those exercises for yourself and to try to put yourself into the shoes of the other person you are about to negotiate with, to image what might be most important to them.
If you are already in legal proceedings, then it is important to communicate with your lawyer about these things. If your lawyer can understand why you want or need something in a settlement, it will make it so much easier to formulate solutions that will work for you and those with whom you are in dispute. It is just as important to explain to your “opposing” party why you are proposing a particular outcome or to say that you are willing to consider other ways to get you to that outcome, because it makes your proposal harder to argue against, and gives the other party (and their lawyer) greater insight into how a win-win settlement might be able to be structured.
In my experience clients rarely have a figure of money or a percentage of the estate in mind for the sake of that figure or percentage, usually it is because they have worked out what they need for their own financial security or because it is what they think is “fair”.
Underlying the wish to “keep the house” for a spouse who might be in a contest with adult step children, is usually the wish to be able to have a home to give them security for the future preferably not far from “the” house so that they can keep as much normalcy as possible.
It is more about what lies beneath the wish, rather than the wish itself.
Roger Fisher’s described a good negotiation like this:
“It should produce a wise agreement if agreement is possible. It should be efficient. And it should improve or at least not damage the relationship between the parties.”
I wholeheartedly agree. I just wish I saw more of it!