The Program on Negotiation

Well, as I predicted, I did not try out a defensive and aggressive style in my “difficult conversation” last week in the Negotiation Workshop.  But luckily, it wasn’t necessary.  The person I was speaking with was incredibly attentive to my character’s concerns, and clearly understood the meaning of active listening.

It is easy to feel satisfied with a conversation when both you and your counterpart have been trained in the methods for effective listening and negotiation.  And, indeed, I left last Thursday’s role-play confident about my ability to voice my own concerns during a difficult conversation, and although I still felt a bit uncomfortable speaking uninterrupted about how hurt I was by the whole situation, it felt reassuring that the person I talked with was interested in what I was saying. 

But I’m just not sure how much I can take from this role-play and envision it happening in real life.  I remember my real-life difficult conversation, and the feelings of guilt and embarrassment that I had when trying to express my anger.  It wasn’t difficult to express anger (in a nice way) in the role play, because I was pretty sure at that point that the person I was talking with would be receptive and understanding.  But I guess I just think that most people aren’t that good at dealing with difficult conversations.  Most people aren’t going to have these skills that Workshop participants are learning, and will be much harder to talk with than the person in my role play.  I’ve never before had a probelm visualizing how effective negotiation skills could be in real-life situations, but something about the emotional weight of difficult conversations makes me pessimistic that someone with my instincts could ever get past “caving.” 

And it frustrates me that I couldn’t quite find it in me to be aggressive and defensive during this role play, because I think I just need to know what it feels like to act in that way.  (I would much rather try out this style in a role play than in real life!) 

It’s not that I don’t think these “difficult conversation” skills don’t work.  On the contrary – I have a lot of faith in the power of listening and attentiveness during difficult conversations, and, as my role play proved, it works almost perfectly when two people are equally amenable to these skills.  But I almost wish that my difficult conversation role play had been more difficult, and that I could have re-lived that real-life conversation that I can still vividly remember.  Even though I was very satisfied with the outcome of the role play, I still felt as though the anger that I would have harbored if I were this character would have remained repressed.

Is there a way to vent anger at the same time as being a good negotiator?  Or do you need to have an aggressive personality in order to feel heard when you’re angry?

…over this afternoon’s negotiation.  Well, it’s not really a negotiation that I’ll be engaged in this afternoon in the Negotiation Workshop.  It’s a difficult conversation. 

I have actually been in a situation eerily similar to that of my character in the role-play, and what ended up happening in the real-life difficult conversation was not satisfactory to me at all.  I felt so guilty about how the circumstances were affecting the other person emotionally, that I completely forgot about defending my own feelings and focusing some attention on myself and my needs – so I ended up caving. 

To me, one of the worst feelings about these kinds of conversations is the frustration afterwards with an unsatisfactory outcome: the clear-headed vision that appears when you’re not mired in a heavy-duty emotional converation, the feeling that “I should’ve said…”  On the other hand, I can’t remember a single difficult conversation in my whole life when I have been able to both remember and articulate every single thing that I had wanted to say. 

We’ll see what happens this afternoon.  This role-play might not be a bad place to try out an aggressive and defensive style… although the very notion of using that approach frankly terrifies me.

This past weekend, I attended the final sessions of mediation training that I talked about a few entries ago.  Again, it was a fantastic experience, and it certainly gave me a lot to think about.  But one issue in particular is really troubling me, and it’s caused me do a bit more thinking about mediation as a process and a vehicle for change.

One role-play that I observed was a case involving a landlord whose tenant owed her four weeks of rent.  The case seemed fairly straightforward, except for one major issue:  the landlord refused to sign a welfare form that would have enabled the tenant to receive rent money from the government.  Why?  Because the landlord was morally opposed to welfare.  She simply did not accept “that kind of money” for rent, and refused to condone the use of welfare by signing her tenant’s form. 

Earlier in the training, I had wondered what would happen if a party in a mediation said something racist or discriminatory.  What should the mediators do?  What is it their job to do?  If they protested the party’s attitude, their comments may seem directive or judgmental, and they would seriously risk losing perceived neutrality with both parties.  But is it right to let destructive attitudes and personal attacks sour the discussion and potentially ruin the mediation? 

I think I was finding this dilemma especially tough on a personal level.  The realistic half of my brain tells me that there’s no way that a two-hour mediation session could change a person’s deep-seated beliefs about life.  I’ve always believed very strongly (for no real reason, just as a gut feeling) that staying away from dialogue on these types of tough issues, and refusing to talk about them because they seem unchangeable, is at best unproductive and at worst destructive.  That there must be a way to confront prejudices without judging the people who hold them, and to understand how biases originate without attempting to correct that history. 

In this landlord-tenant role play that I observed, the mediators consciously chose not to probe the landlord when it became clear that she was prejudiced against people on welfare.  This makes sense to me in a way, but it is also troubling.  These types of issues are definitely wrapped in a host of strong emotions, but why does that mean that we as mediators can’t “go there?”  To me, the emotional element is all the more reason to try and unpack prejudicial attitudes in a mediation. 

But I think it’s also important for me to remember that although this approach might work for me, other mediators may not feel comfortable confronting these issues – and that’s okay.  Mediators are neutral, but they have their own personalities, styles, and comfort levels (mediators are people, too!) – and that might mean that it’s not always appropriate to confront prejudice as a mediator.

Put bluntly, I think one of my biggest challenges will be to accept that I can’t change the whole world in a mediation session. 

Clearly, the unrealistic half of my brain wins out most of the time.

I have a ton that I want to blog about, but the PON Internship Fair is tonight at 5pm (in Pound Hall 335!), and that’s definitely going to dominate my day.  It’s amazing how much planning goes into one event…

Yesterday I took part in another role-play for the Negotiation Workshop.  Without giving too many of the details away, I represented a man who had broken his neck using a Super Slipster, a water toy designed for children.  This man, Adam, sued the company that manufactured the toy for $13 million in damages.

What made this negotiation feel so different than the ones I’ve done before was the simple fact that it was so numbers-intensive.  In “Sally Soprano,” price was definitely a factor, but the larger issues to resolve were Sally’s publicity and future career prospects.  And in my very first negotiation, in which I represented a filmmaker in a dispute with her producer, money was hardly an issue at all; the dispute was mostly about exercise of authority.  But in yesterday’s case, while non-tangible underlying interests were present in the background, the negotiation definitely centered around putting price tags on these interests.  For me, it’s much easier to identify common ground and create value when prices aren’t an issue.  Yesterday, the numbers felt like a frustrating distraction from what I saw as the real substance:  Adam’s disability and the devastating effect it had on his life.
 

As a result of all this, during the actual negotiation I all too often tended to stick with positions, rather than interests.  Having the numbers ever-present on the table made it easy to get bogged down in the math, and to anchor to one figure or another.  And when we as lawyers are only authorized to agree to a certain minimum settlement, this number feels like a shadow looming over the rest of the negotiation. 

Unfortunately, I’m guessing that in most negotiations, prices and money will be an associated, if not central, concern.  Particularly in a legal context, my impression is that monetary settlements dominate the negotiation landscape.  But maybe I just watch way too much Law and Order.

Looking back on the negotiation last night, I began to realize the effects of focusing so much on money and letting the larger interests fade into the background.  While I think our settlement did address Adam’s interests – he got enough money to pay his medical expenses and protect his family, and the product was taken off the market – I found myself facing what’s rapidly becoming a familiar refrain for me:  I could have gotten a better deal!  Before negotiating, I tried to think about creative options relating to the money – but I completely missed the opportunity to create non-monetary value, perhaps because I was just so focused on agreeing to a certain price. 

I think it will be a challenge for me in money-based negotiations to apply my skills in the same way as in other situations.  I guess the lesson is that when underlying interests are present (as they almost always are), there are more ways to satisfy them than simply obtaining a large sum of money.  This sounds completely obvious!  But I’m rapidly discovering that in the heat of a negotiation, it’s very, very easy to miss the obvious. 
 

This past weekend, I got the opportunity to observe and assist with several professional mediation training sessions.  I’ve always been interested in mediation, and having attended training sessions in high school, I found that this program builds on the skills that I learned.  But it was also much more in-depth and intensive than any training that I’ve received, and I came out of the weekend feeling as though I have a much clearer picture of the role that mediators play in dispute resolution.

One of my favorite parts of the weekend had to be the module that David Seibel from Insight Partners led, discussing the different models of mediation.  The model we were using was completely facilitative, meaning that the mediator’s role is to neutrally facilitate a discussion between the two parties, rather than act as a problem-solver who advises one or both of the parties in order to come to an agreement.  We were introduced to the idea of the facilitative mediator on the first day of training, but David put it in perspective by placing this particular model on a spectrum with other, more directive approaches. 

But the discussion of directive versus facilitative mediation raised in my mind the question of the centrality of an agreement.  In a negotiation situation, agreement is clearly the desired outcome.  Even in a principled negotiation focused on interests rather than positions, each party is negotiating in order to come to some sort of settlement that is mutually satisfactory and value-creating.

But is this true in a mediation?  Obviously, parties entrust the mediator with their conflict for the ostensible purpose of finding a resolution.  In this sense, agreement is the desired outcome, just as in a negotiation.  But it seems as though the discussion that precedes the agreement – the uncovering of interests, priorities, emotions, and fears – can be just as valuable as the final resolution of the conflict.  If parties in a mediation had a productive discussion that resulted in better understanding, but they didn’t reach agreement, my instinct is to view that increased understanding as an equally valid resolution.  I guess it’s just important to remember that conflict resolution doesn’t mean that the “resolution” has to be an agreement.  And while it’s great to come to an agreement, disagreement with understanding is still okay. 

There’s a second set of sessions at the end of February.  I’m excited; I learned a lot, but also the group of  trainees and trainers involved was just fantastic.  I think mediation kind of self-selects nice people.

Happy Valentine’s Day!!!

So my first simulated negotiations are complete – and they were just as exciting and educational as I had hoped (and less scary).  This entry could go on at nauseum as I sift through all the emotions and reflections that these simulations provoked.  But I’ll just pick a few.

One thing that struck me related to preparing for the negotiation.  I knew that prep was important; in fact, I probably went a little overboard.  The night before, I pored over my instruction sheets, trying to identify all interests on both sides and looking for common goals and listing all possible arguments for and against each option.  I also wrote everything down in (what I thought was) an organized fashion.  Well, this process probably helped me, but really what I was left with at the end of my individual prep was a big jumbled mess.  I might have had the right information, but it just wasn’t organized well.

The prep-by-side session in Gillien Todd’s working group was a complete paradigm shift.  Using the “Seven Elements” worksheet, we separated the facts of the case into alternatives, options, and interests, and considered how they affected each party’s legitimacy, communication, relationship, and ability to commit.  I was astounded by how many creative ideas we came up with as a group – there was no way I could have thought of everything on my own.  I really did feel much more confident after this session, and I feel sure that it was because of the collaborative and “brainstorm”-style way that our group prepared.

Another realization (which was almost a total revelation to me) had to do with my own personal style of negotiating.  My approach to most things in general is very listening-based; I like to hear the other point of view, and respond accordingly.  In that order.  This approach worked for me in formal mediation, and it works for me in lots of other everyday situations, so I definitely assumed that it would also get me a good outcome in a negotiation scenario.  But after having acted this way in at least two negotiations over the past few days, I’m unsure.  I was never the one to start the negotiation; this would have felt very unnatural to me, and overly assertive – bossy, even.  But a couple of my partners surprised me in the way they started their negotiations in an assertive but open way.  I realized:  it is possible!  I think it will be a big challenge for me to get comfortable with being assertive and firm without feeling like I’m alienating the opposing party.  I guess this is what I meant in my last entry when I predicted that being in a third party facilitating role feels different than negotiating on behalf of interests.

For similar reasons, the value-creation exercise that we did in working groups after negotiating was intriguing.  I found that it was quite easy for me to identify shared interests and develop creative options that created value.  In fact, I had done some of this in my negotiation on Thursday, when I represented an opera singer interested in a leading role.  But this also made me worry a bit – is there some sort of tension between creating value and protecting your own interests?  During the negotiations, sometimes it felt as though I was creating options that were good for my client, but perhaps I could have found better options.   I was so eager to identify common goals that once we found them in the negotiation, I stopped pushing to see if I could get even more.  It seemed like a combination of the winner’s curse and simply forgetting about my own interests that the other party might not share.  Is it possible to be too agreement-happy as a negotiator?

These tough questions – and startling realizations about myself! – will probably come up again and again as I continue to negotiate in my daily life.  But now that I’ve been exposed to my own challenges, it would be great fill in again at the Workshop and participate in more simulations.  In the nicest way possible, I’m hoping for some more absences!

Today started off pretty relaxed, and now as I’m getting ready to leave for the day I feel like I have a ton on my plate for the rest of the week.  Things to think about include: the internship fair, various projects for Bob Bordone, the Negotiation Workshop… the list goes on.  But I’m happy about that; I’ve always felt that I actually thrive on that feeling of nearly being overwhelmed.  I also had a really good meeting with Sarah today where we basically organized ourselves for the near future.  So I’m pretty psyched up for the next few days.

Tomorrow and Thursday I’m filling in for a couple negotiation simulations for the Workshop – which means I’ll actually get to negotiate!  I’m feeling a mix between huge excitement and huge apprehension.  In tomorrow’s simulation, I play a lawyer for a movie producer.  Now, I know little to nothing about law, and the majority of the other students in the class are HLS people – so I hope I’m not out-teched.  And although I do have experience in mediation, I would imagine that being a facilitating third party feels quite different than actually sitting down and having to reach a settlement that protects your interests. 

I’ll just have to keep reminding myself that lots of successful negotiators don’t have law degrees (…right?), and that facing aggressiveness in a negotiation, while intimidating, shouldn’t cause me to lose confidence.  When I consider real-life situations in the past that have involved negotiation, I realize that I’m much less worried about exploding in a fit of anger than I am about making so many compromises and concessions that I’m unhappy with the outcome.  It will be interesting to see what types of mediation skills are transferable to a one-on-one negotiation setting.