In their book, “Getting to YES, Negotiating Agreement without Giving In,” Roger Fisher and William Ury discuss alternatives to positional negotiating. It is a must read for all mediators and a strongly suggested read for any attorney who participates in the negotiation process.
Positional negotiating is what we see in most workers compensation mediations. Each side takes a position. For example, claimant says he is perm total. The carrier says his case is not worth more than 10% to the back. Through a series of offers and counter offers, threats and cajolery, point and counter-points, the parties arrive at their position of no retreat. Sometimes, it is enough to resolve the matter but often the parties leave unresolved with bitter feelings making further negotiations very difficult or impossible.
Fisher and Ury suggest there is a better way. Don’t bargain over positions, concentrate on interests. What are the real concerns of the parties? Are there options that can be presented that will mutually benefit all parties? Rather than entering into positional punch/counter-punch mediation, can the parties be separated from the problem and invent options for mutual gain?
Concentrating on each party’s interests requires the mediator and the attorneys know the case and the parties. Preparation is necessary. The more mediator and the attorneys know, the better they will be recognizing and suggesting options. And everyone must keep an open mind.
Read the book. It will give you a great deal to think about.
