The need to save face does not bring people to the bargaining table, the need to resolve a dispute or issue does (Fisher and Ury, 1991).
Positional bargaining does have advocates. In the case where the parties interests may interfere with their resolving the issues, positional bargaining may be preferred. Issues are deemed to be universal and party specific. Interests are party specific and will vary from case to case. In this matter, the interests include Richard's infidelity and the three ongoing businesses. It may be that in this case, positional bargaining is preferred as the interests will prove to polarizing for the parties to work together (Lax and Sebenius, 1991).
Strategies, Transitions And Progressions During The Mediation
Richard's First Response
Although this subsection is entitled Richard's response, it is really the response of his lawyer. The mediator meets with privately with Richard and his lawyer and explains that the law sets forth certain parameters for these issues. Some of the parameters likely would not be decided favorably for Richard by a judge if the case is not settled. Still, Richard is emotional and immature and his lawyer knew that Richard must be made to understand the intricacies of negotiation.
Richard ultimately offered to lessen his demands for custody to one of the summer months and to establish and pay for pre-paid college accounts for the children. He remained emotionally unwilling to yield on the other issues. He still did not see the negotiations as an exercise in economy or as the means to achieve the ends he set forth at the beginning of the mediation (a quick and cheap resolution). Rather he feels the outcome of the mediation must vindicate him as the righteous of the two parties.
Analysis Of Richard's Negotiation Strategies Used In His First Response
Richard continues to view the mediation as him vs. her. He was not looking as the other party as his long time partner and mate or the mother of his three children. His 'must-win' attitude was a product of his demonizing his wife and his having lost sight of his wife as a fellow human being, let alone one with which he will forever have a significant bond (as parents to the same children). Colloquial negotiation talk speaks of bringing opposing parties 'to the table.' What good does that do in this instance, when one or both or parties sit across the table from each other with arms folded thinking ill of each other. After all, the idea behind negotiating and mediating is to get a deal done, not to not get a deal done.
Richard needs to be guided to the 'same side of the table' as his wife, either literally or theoretically. The mediator and/or his lawyer, as good negotiators, will understand the importance of Richard humanizing Daphne during the mediation. The mere act of the two of them sitting side by side is likely to foster more compassion between them. In this fashion, they can look upon the problem together for a mutually satisfactory solution, rather than glare across a cold, hard table at each other from their own symbolic camps (Fisher and Ury 1991, 17).
Daphne's First Response
Richard's first response provokes an equally emotional response from Daphne. Having just spent the last ten years of her life being pressured to accept his childish and short-sighted decision making, she is not about to let him 'have his way' here to. She sees this as her last chance to create a level playing field between them and she is not about to be 'walked all over.' Besides, she is fully aware that she has better chance of prevailing in the judge that he does. She instructs her lawyer to tell the mediator the case cannot be settled and they are leaving.
Analysis Of Daphne's Negotiation Strategies Used In His First Response
Just because Daphne starts to walk out does not mean that she is giving up or acting in bad faith. In fact, her response is a result of her perception that Richard will not negotiate in good faith. There are two concepts of negotiating strategy at work here. One is that the best approach to an unfair negotiator is often to stop negotiating. Negotiating is not a display of power or a test of wills. It is about find a better path out a particular issue.
The other concept is that there is power in understanding the legitimacy (or lack thereof) of your position. Here Daphne, knowing the advantage she will have in a courtroom, realizes that she Richard's tactics are likely to backfire in front of the judge. Sometimes, the desire to have an unsettling issue resolved needs to defer to putting yourself in the best position to obtain a tolerable outcome. (Fisher and Ury, 1991, 183)
Richard's Transitions And Progression
After the mediator successfully lobbies for Daphne to stay for one more round of negotiations, the mediator and Richard's lawyer let Richard know that while he is free to conduct however he sees fit, he is adopting some self-destructive positions. The mediator and Richard's lawyer both feel that Richard stands to make out better at the mediation than he would in front of a judge, but he has to first 'divorce' himself from his present mindset. One way, the mediator succeeds in doing this is by assuring Richard that if they can make a deal today, that means that Daphne will have to soften her demands and they both will feel like they lost. "That is the mark of a fair settlement," says the mediator. Richard begrudgingly begins to listens to what the mediator has to say.
Analysis Of Richard's Transitions And Progression
The mediator explains to Richard the importance of focusing on interests and not positions. Rather than focusing on the degree of separation in the two parties bottom lines, focus on why each party has a different bottom line. What are the fears, desires, needs and wants that motivates each party (Fisher and Ury 1991, 41). This is important for two reasons.
First, this is where the solution to the issues lay. When a party is assured that its fears are assuaged or its needs met, the barrier to agreement often vanishes. Also, there is often multiple solutions to the problem of interests that would not come to find if the negotiation is looked at only from a positional standpoint (Fisher and Ury 1991, 42).
Second, often times a close inspection interests reveals how aligned the parties respective positions actually are. In this instance, Richard and Daphne share several key interests. They both want the divorce finalized as quickly as possible, with as little spent in legal fees and as little disruption to the children's lives as possible. They both want to sever their collective business interests and their property interests. In fact, each lawyer stated this at the onset of the mediation. However, because each side employed the positional bargaining approach, they each lost of the shared interests.
Richard's Further Transitions And Progression
The last thing the mediator explains is the laws of that state do not favor him given the facts of this case. The mediator makes Richard use objective criteria to re-establish his own bargaining position. The mediator explains the law in the couple's home state is and that the judges are pretty consistent.
Daphne, as the mother, will be given primary custody unless she is shown to be an unfit mom. This is in the best interest of the children. Richard's affection for them and desire to have primary custody is not given much weight in his state. Richard will be ordered to pay child support because in his state, a parent is obligated to financially support his children. The amount of child support will be determined based on his ability to pay and the children's needs. Richard will be given visitation and perhaps limited custody during the summer months.
The mediator informs Richard that these issues are not even bargaining chips. The property issues are where the negotiation should be focused. Richard needs to know the judge will consider evidence of his infidelity and abandonment towards his wife. If the evidence is compelling enough, the judge may very well award the majority of marital assets to the wife as an "equitable distribution." This distribution may require the couple to sell off the vacation home at a considerable loss, or to sell the commercial property at a low point in the real estate market and not hold the commercial property as a landlord. The judge may also determine that Daphne's decision to be a stay at home mom is in the kids best interest and that she is therefore entitled to alimony. Convinced now that Richard will no longer try to carry the day with will power and resentment, the mediator invites Richard to engage in collaborative negotiations with Daphne.
Earnest Negotiations And Marching Toward Settlement
Sources Used in Document:
Burgess, Heidi. (2004) "Negotiation Strategies." Beyond Intractability. Eds. Guy Burgess
and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder.
Posted: January 2004
Fisher, Roger and Ury, William. (1991). Getting to Yes: Negotiating Agreement Without
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