As a trainer of negotiation and conflict resolution skills, I love using optical illusions to demonstrate the fallibility of our perception. They alert us that our senses can be unreliable and susceptible to influence. And they remind us that it is always possible to see things differently. The ability to be alert to errors in thinking and judgment that any of us are prone to is of course essential to anyone who is negotiating or resolving a dispute.

Here are two optical illusions I was recently introduced to that I’ve incorporated into my training. Both of us these can be found at Michael Bach’s web site, 75 Optical Illusions & Visual Phenomena.

The first is Shepard’s “Terror Subterra”, a cool interactive illusion that demonstrates how perspective can bias us.

The second is Shepard’s “Turning the Tables”, an interactive illusion with tables that appear to be of different dimensions but are in fact identical, with the ability to test the visual effect for yourself. It’s extraordinary how knowing the truth doesn’t necessarily prevent us from making mistakes in our thinking.

Red Sox fans like myself, while still basking in the afterglow of our team’s recent World Series triumph, are grieving that baseball season has at last come to an end.

But I can take comfort in the latest edition of PONCAST, which brings together two of my favorite topics, negotiation and baseball, in its latest podcast, “Negotiation Lessons from Baseball’s Free Agents“.

(Photo credit: Rodolfo Clix.)

I often hear critics of mediation dismiss it as “touchy-feely”.

Yet as the results of one recent poll conclude, half of commercial disputes “get personal” as hearts win out over minds in business-related conflict. This suggests that it may be neither possible nor prudent to ignore the emotions that conflict triggers when it comes to successfully resolving disputes.

In “Emotions and Problem Definition in Mediation“, Professor Nancy Welsh, blogging at Indisputably.org, discusses the value of offering parties in mediation the choice of addressing emotional concerns, explored more fully in a soon-to-be-published law review article she has co-authored with influential ADR scholar Len Riskin. Welsh observes about parties,

They may want the emotional impact of their disputes to be a legitimate part of their mediation session. And, of course, one of the great promises of mediation is its potential to incorporate and deal productively with emotions.

As Welsh points out, the question is how:

Len and I decided to adopt the concept of “core concerns” introduced in Beyond Reason by Roger Fisher and Daniel Shapiro. Fisher and Shapiro observe — pretty convincingly, I think — that it can be quite complicated to deal directly with emotions in negotiation… Meanwhile, there’s lots of research showing that we lawyers are not too keen on dealing with emotions and personal impacts. So, Fisher and Shapiro propose that negotiators focus on five core concerns that are the source of many of the emotions expressed in negotiations. These core concerns are: appreciation (the desire for our thoughts, feelings and actions to be valued); affiliation (the desire for connection or positive relationships); autonomy (the desire for respect of our freedom to make important decisions); status (the desire for recognition of our standing); and role (the desire for a role and activities that are fulfilling). If negotiators attend to these core concerns, they can trigger positive emotions and respond to negative ones.

Beyond Reason is a text that I use when I teach and is one that I recommend often to clients. It explores a topic that other negotiation texts have neglected or paid scant attention to: how to deal constructively with emotions in negotiation — both your own and the other person’s. It provides numerous examples from both business and family life, making the techniques relevant and meaningful to anyone who negotiates — or who assists others in negotiating — to produce real-world results.

And there’s nothing touchy-feely about that.

No sooner had the virtual ink dried on my post about a new ADR health care blog than I received a delightful message about a new dispute resolution podcast — this one with a distinctly international flavor.

International Dispute Negotiation, presented by the International Institute for Conflict Prevention & Resolution (CPR), explores ways professionals from different countries and backgrounds approach dispute resolution. The podcast is intended to help listeners understand the risks of disputes and shed insight on optimal ways of accepting, mitigating, and managing those risks in the real world, whether through mediation, arbitration, or litigation that arises far from home.

International Dispute Negotiation is hosted by Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil & Gas. Michael is based at his company’s headquarters in Florence, Italy, and is a long-time member of the CPR Institute and its European Advisory Committee.

Michael tells me that the podcasts are mainly recorded when he’s on the road in different countries, the editing is done in Florence, and the feed is through CPR’s website in New York.

This podcast is the latest addition to the World Directory of ADR Blogs, which tracks and catalogues blogs covering dispute resolution and negotiation. If you publish or know of a blog that should be added to the World Directory, please let me know. It’s a commercial-free site, and there is no cost to be listed. The Directory has information on submitting your blog and some simple submission guidelines.

Congratulations, Michael, and best wishes on the launch of this superb audioblog.

In impressing on their students the importance of acquiring negotiation skills, trainers will often say, “You may not realize it, but you’re always negotiating. It doesn’t matter whether you’re asking your boss for a raise or figuring out where to have dinner with your spouse. You’re negotiating, my friend.”

I know–I’ve said this to rooms full of people myself. Judging from the numerous heads nodding in agreement, many people accept this as true. However, I don’t think anyone ever acts as if they really believe it.

But what if in fact that were the case? What if you truly believed that everything–and I do mean everything– is open to negotiation?

Author Tom Chiarella decided to test this premise during the course of a three-month experiment. He writes about his experience in “Haggling for Hot Dogs“, an article that appears in Esquire. Lessons learned include “Never let them know how much you have to spend. Draw people into your life. Show your personality. Learn people’s names. Work your way up to the person who has a stake in the sale and the power to make a deal.” Also, don’t “think of money as the only thing…to offer. I found that trading favors proved relatively easy.”

The World Directory of Alternative Dispute Resolution Blogs added a negotiation podcast this week to its growing catalogue.

PONcast is produced by the Harvard Program on Negotiation. Posts include “First You Have to Ask“, on the impact of gender on negotiation.

Do you publish a blog on negotiation or dispute resolution? Let me know, and I’ll add it to the World Directory of ADR Blogs. (Please review these painless submission guidelines first.)

When it comes to negotiating, be trustworthy, not trusting–advice that many negotiation trainers give their students. Since lying may be endemic to the human condition, this is undoubtedly good advice.

But what can a negotiator do to counter deception at the bargaining table?

In “The fine art of negotiating (with liars)“, an article in today’s Boston Globe proffers some advice from the experts, including:

Ask negotiating partners upfront to disclose their credentials, credit record, or personal history as a way of establishing trust.

Set ground rules, requesting that bargaining be “good faith” rather than “arm’s length.” In the former, the parties agree to reveal everything they know to help reach a better deal for both sides. In the latter, they disclose only what’s required and can mislead through omission.

Frame questions more narrowly or broadly, or make statements that will invite telling responses, if you feel your negotiating partner is providing vague, general, or yes-and-no answers.

I agree that asking questions is important. In Bargaining for Advantage, scholar and negotiation expert G. Richard Shell points to the results of a study that demonstrates something fascinating about the behavior of skilled negotiators: they ask twice the number of questions that average negotiators do. In fact, Shell reports that “skilled negotiators spend 38.5 percent of their time acquiring and clarifying information–as compared with just under 18 percent for these activities by average negotiators.” Shell’s advice is simple: “probe first, disclose later”.

Another expert interviewed for the Globe article had other recommendations: Begin on the presumption that the person on the other side of the table is honest unless the evidence suggests otherwise. Then, “take precautions — that includes jotting down notes during talks, putting the other person’s claims in writing, and incorporating contingency clauses into agreements.”

My own advice? Do like the Boy Scouts: Be prepared. Identify your goals for the negotiation, not just your bottom line, research your walk-away alternatives in advance to create leverage, and collect data that will support the dollar figures or outcomes you’re seeking. And don’t forget to follow Shell’s advice–ask questions and listen.

By the way, don’t be tempted to resort to bluffing yourself in an effort to come out ahead. It could end up costing you. According to Shell, “Bluffing distorts the information flow in negotiation in ways that can be costly. In one study, for example, 20 percent of the subjects, including some experienced professionals, ended up agreeing to options that neither side wanted due to bluffs that backfired.”

Looks like in negotiating honesty may be the best policy after all–or at least the most profitable one.

Negonation, a Spanish start-up, has launched Tractis, a web-based platform to revolutionize the negotiation, management, and execution of contracts in e-commerce.

But it’s not just about helping business get done. Negonation’s goal for Tractis is far more ambitious:

Our goal is to provide a way to make online borderless justice possible. Yeah, you heard us right. We want to develop a new legal system that overcomes the inefficiencies, complexities, injustices and sluggishness of traditional legal systems. We want justice for, from and by the Internet nation. Tractis is only the beginning.

Tractis is designed to manage what Negonation’s founders call “the whole life cycle of contracts”. Users can select from a library of templates to create a contract, invite others to participate, and develop a single text to produce contracts guaranteed to be legally binding. Prior versions of contracts, comments, and attachments are archived and readily accessible. Negonation plans to add an online dispute resolution mechanism for addressing the inevitable disagreements that can arise from contract negotiations.

You can take an online tour of Tractis to gain a sense of its interface or review its FAQs.

O brave new world…

(Hat tip to Law.com Inside Opinions.)

It’s been a tough month for the American legal system and American lawyers.

First an attorney with drug-resistant TB travels to Europe and back, potentially exposing his fellow air travelers to a dreaded illness. Then an administrative law judge goes to court to recover $54 million dollars from his former dry cleaner over a pair of lost trousers. Finally, a North Carolina district attorney is disbarred for violating numerous rules of professional conduct in his prosecution of a controversial rape case.

Events like this only seem to confirm the worst suspicions that the American public harbors toward its legal system and the legal profession. The images on the five o’clock news tell the story: greedy plaintiffs, overreaching lawyers, justice in chaos.

This month’s issue of the American Association for Justice’s Law Reporter paints another picture. In a print article, “Family of slain journalist agrees to nonmonetary settlement with city to improve emergency services, ” it reports on the unexpected outcome of a lawsuit stemming from the death of a prominent journalist as the result of alleged deficiencies in the District of Columbia’s emergency services.

According to the family’s lawyer, their goals in litigation shifted from obtaining monetary compensation from the defendants to instead finding ways to ensure that other families would be spared a similar experience. In exchange for the family members dismissing their claims against the District, the District agreed to establish a task force to investigate the circumstances surrounding the response of the District’s Fire and Emergency Medical Service and to issue a report of recommendations for improving the delivery of emergency medical services.

The family’s attorney observed, “I hope that the example set by the Rosenbaum family will prompt other attorneys to consider creative resolutions to cases where the focus shift from an entirely monetary settlement to a resolution that has a broader impact than just on the litigants in the case.”

Mediators of course will nod their heads in recognition–this is a story familiar to all of us. It’s too bad it’s not a story familiar to the public. Lawyers and mediators alike need to do a better job of telling these stories–stories which reveal the creativity and change that justice can produce.

In my line of work, I help people do it all the time. And they all do it differently.

Some of them boast that they’re good at it–but in fact know only one way to do it. Some will stick with the position they’re comfortable with. Some lack confidence. They worry they won’t measure up. Others lack experience.

But in the end, with the right motivation, I can often help them do it better. And do it until everyone’s satisfied.

I’m talking about negotiation.

Hey, what else did you think I was talking about?

If you want to reduce performance anxiety at the mediation table, consider the following things you can do to make the earth move–or at least to be a more effective negotiator at the mediation table and elsewhere.

1. Preparation.

It’s been said that for every hour of negotiation, a skilled negotiator puts in four hours of preparation. One of the biggest strategic mistakes I see people make is coming to the table too soon–when they haven’t done the necessary preparation in advance. Besides just crunching the numbers, you should give thought in advance to:

Your interests. What are your needs? What goal do you want to achieve and why? Why does settlement make sense? If you’re at the table representing a client, you need to spend time in advance making sure you understand fully your client’s interests–something every advocate should do whether they’re headed to mediation or not.

Consider the other side’s interests as well. If you know what they need, you may be able to meet their interests in a way that will be more cost-effective to you.

Your alternatives. What happens if you don’t reach negotiation? How good are your alternatives? What can you do to improve upon them so you can negotiate from a position of strength? Consider the other side’ alternatives as well–how do their alternatives stack up against what you might be able to offer?

Options. Think of as many different options that you can. What will meet your needs? What will appeal to the other side? Is there a way to meet your interests and theirs as well? Come prepared to be creative.

Objective criteria. How will you know that any deal you reach is fair? What about your demands? What objective criteria are they based on? How can you convince the other side that those demands are fair?

Your relationship with the other side. What kind of relationship do you want to have with them when the negotiations are over?

Communication. What do you want to say and how are you going to say it? If communication has proved troublesome in the past, what can you do to improve it?

2. Be receptive to new ideas.

Chances are you need no help to bargain the old-fashioned way. You know, the kind where one side begins with an outrageous demand and the other side responds with an equally outrageous counteroffer, followed by incremental steps toward each other until you both find yourself agreeing to a dollar amount neither one of you likes. A mediator can help you try something different that may help you create more value than traditional bargaining can produce. It’s all about expanding, not dividing the pie.

3. Become self-aware.

As Gustave Flaubert observed, “There is no truth. There is only perception.” And our perception is distorted by the cognitive biases that all of us who are human beings are prone to. What might you be missing? Here’s a shopping list of cognitive biases for negotiators to watch out for.

4. Listen more, talk less.

The more you listen, the more you’ll learn–and the less chance of saying something that you may regret later. Listen to educate yourself about their interests. And talk to educate them about yours.

5. Learn to negotiate.

If you’re likely to be a repeat player at the mediation table, then it makes sense to learn mediation from the inside out. Take a mediation training to learn about the theory and the techniques of a process that is designed to help people negotiate.

Build yourself a negotiation library. Some must-read books for negotiators include:

3-D Negotiation: Powerful Tools to Change the Game in Your Most Important Deals, by David Lax and James Sebenius

Bargaining for Advantage: Negotiation Strategies for Reasonable People, by G. Richard Shell

Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher and William Ury

The Negotiator’s Fieldbook, edited by Andrea Kupfer Schneider and Christopher Honeyman

Influence: The Psychology of Persuasion, by Robert Cialdini

So be prepared for your next negotiation–or your next mediation session. Do your homework, get some training, read up on negotiation techniques.

The earth will be moving for you in no time.

There’s an exercise I use to get people to think about negotiating styles.

You mark a line down the middle of the floor with masking tape. Then you tell participants to find a partner and to stand facing each other on opposite sides of the line. You instruct them that they are about to play a game and that the object of the game is to get your partner to come over to your side of the line. You tell them that if they can do that, they’ll win. And not only will they win, but you will pay the winner $1000. You then give them 60 seconds to play.

What happens next is predictable.

First of all, across all groups, people typically rely upon three approaches:

1. Persuasion.
2. Trickery.
3. Force.

Persuasion: Most people will attempt to persuade their partner to come over to their side of the line. They try to offer compelling arguments why they deserve the money. Sometimes, too, one partner will persuade the other to postpone gratification and come over to the other side on the promise that if the game is played again it will be their turn to collect the $1000.

Trickery: In some cases, people will promise to split the money while secretly intending to renege. An unscrupulous few will trick their partners, reaching out to shake their hand as a sign of good faith and then suddenly pull their unsuspecting partner across the line.

Force: Some players will try to use intimidation or brute force to drag their partner across the masking tape line.

This isn’t surprising. In real-world negotiations, people rely on these same approaches. Persuasion is very common–efforts to convince the other person that you’re right and they’re wrong, or to hand over something that we want. Trickery and force or intimidation remain perennial favorites–for some people, negotiation is a form of warfare. Unless there’s blood on the sand, the negotiation’s a failure.

These approaches often come up short. With persuasion, you often get nowhere–it becomes an endless round of “Yes, but”. With trickery, you might get the monetary results you wanted, but you’ve also destroyed trust. Not only will that person never do business with you again, they’ll tell others to stay away from you, too. And the problem with treating negotiations like a battle is, after all the time and energy you invest in the negotiation, you’ve made an enemy instead of someone who might be willing to do business with you again.

Back to the game I was telling you about.

When you stop the game and ask who won, the results are interesting. Typically, there are three outcomes:

In order of most frequently occurring to least frequent:

1) Neither partner wins anything, since both failed to get the other to step across the line (approach used: persuasion, trickery).

2) The partners split the $1000 if one agrees to cross the line to the other side (persuasion, trickery).

3) One partner wins, the other partner receives nothing (trickery, force).

There is, however, a rarely used fourth approach which yields an equally rare outcome. This approach enables both partners in a pair to each get $1000. A win-win, in fact.

Can you figure out how to do that? I’ll give you a moment to ponder it. (You mediators sitting there in the back of the room, no fair giving away the answer.)

Okay, time’s up.

Here’s the answer:

All the parties have to do is switch sides.

That’s it.

The problem though is that people don’t usually think of doing that. When you tell them that the winner gets $1000, people figure in each pair only one can emerge a winner. It doesn’t occur to them that both could win. There’s nothing in the directions that forbids it. The directions are clear: If you get your partner to come to your side of the line, you win $1000. That’s it. But people hear the word “win” and they’re already thinking about the other side of that coin: lose. It’s what puts the “zero” in zero sum game.

What happens is, people compete. That competitiveness forecloses any other results but lose/lose, win/lose or a 50/50 split. People waste time figuring out how to divide the pie instead of inventing ways to expand it.

In your negotiations, how much value are you leaving on the table? Is your desire to keep that competitive edge blinding you to more profitable outcomes?

Think about it.

For those of you who monitor depictions of attorneys or negotiation in popular culture, this video of two lawyers negotiating brings whole new meaning to “getting to yes”.

(Caution: not suitable for workplace viewing.)

(Thanks to Boing Boing.)

Digital negotiation systems and tools abound, from the sophisticated logarithms of Smart Settle, which is designed to enable users to “achieve fair and efficient solutions that are truly Beyond Win-Win®” to the Fair Division Calculator which promises “envy-free divisions of goods, burdens, or rent” (and costs nothing to use).

The latest to join their ranks is Parley Negotiation Software, created by the Berlin-based Theory. Parley allows for brainstorming, analysis of preferences, and evaluation of all possible agreements, together with tracking of negotiation history.

A free 30-day trial is available for downloading (a good thing since Parley costs $460 for the complete version with one year of support and updates). Parley’s tutorial provides a walk-through demonstration of a simple employment negotiation.

Mediators should be aware that the American Bar Association has apparently given its stamp of approval to the practice of “puffing” in negotiation, including caucused mediations:

Under Model Rule 4.1, in the context of a negotiation, including a caucused mediation, a lawyer representing a party may not make a false statement of material fact to a third person. However, statements regarding a party’s negotiating goals or its willingness to compromise, as well as statements that can fairly be characterized as negotiation “puffing,” are ordinarily not considered “false statements of material fact” within the meaning of the Model Rules.

Frankly this is way too nuanced for me, and I don’t think the ABA has done mediators and lawyers any favors with this “clarification”. Puffing good, lying bad–you be the judge.

You can download “Lawyer’s Obligation of Truthfulness When Representing a Client in Negotiation: Application to Caucused Mediation” in PDF here.

(Thanks to Knight on Family Law for the link.)

Technorati tags: Lawyers, mediation, negotiation

Here in America, in a political climate which increasingly abandons the reasoned debate and factual analysis that once characterized public discourse in favor of logical fallacies, cheap appeals to emotion, and personal attacks, there is evidently little popular support for intelligent dialogue between political parties, let alone between the U.S. and its adversaries abroad.

Against that backdrop, a question that emerges time and again is, “Should we negotiate with terrorists?” In the public imagination, negotiation has unfortunately come to be synonymous with compromise, appeasement, and weakness, and the answer for many here is “no”.

In his latest edition of Negotiating Tip of the Week, Josh Weiss poses and ponders exactly that kind of tough question. He begins by challenging the popular definition of negotiation and proposing instead one that mediators will be familiar with.

To join Josh in asking what it means to negotiate with extremists, listen to his podcast here. As always, Josh welcomes listener input, along with ideas for future programs. This is one place on the web at least where public discourse remains welcome.

Technorati tags: conflict resolution, negotiation, Mediation