Thursday, February 12, 2009

Getting to Yes and Beyond Reason

I'm going to write more about The Deal before our next class, but I'll wait until the quiz is over. I have already read some of your answers and they provide great food for thought (and for blogging). In the meantime, let's focus on Getting to Yes and Beyond Reason.

I was just re-reading a review of Beyond Reason, and as we are starting to knot and knit together the various pieces of our course I thought I'd share some excerpts with you. The review appeared in the April 2006 edition of Negotiation Journal. The reviewer's name is Erin Ryan and she teaches negotiation at the Marshall-Wythe School of Law.

One of the aspects of the review that I really like is that Professor Ryan's puts the book in its context as a sequel to Getting to Yes. For example:
Where the first book taught us to create value in the face of the emotional roller coaster that is any negotiation, the new book teaches us how to change the roller-coaster ride -- if not into a Sunday drive, then at least into a more predictable commute.
Professor Ryan points out something that I hadn't noticed before, and that is the arrangement of the chapters. Referring to Chapter 8 (On Strong Negative Emotions), she says that its positioning toward the end "shows that it is secondary to the main purpose of the book, which is to teach us how to avoid these situations in the first place, by proactively inculcating positive emotions from the very beginning."

Professor Ryan also highlights one the book's self-confessed shortcomings, namely the fact that it doesn't grapple with situations where "negotiators' abilities to collaborate are hindered by their need to 'perform' for their constituents or communities of interest." By way of reference to the text she cites to page 33 where the authors discuss the second element of appreciation, i.e. finding merit in what the other person thinks, feels, or does.

There are barriers to finding merit, and one of the examples Fisher and Shapiro give has to do with constituents. When you (the negotiator) express appreciation for the other side's point, your constituents could misunderstand you: "They might think that your seeing merit demonstrates that you agree with view with which you, in fact, disagree." In other words, your constituents could misinterpret your behavior. They might doubt your loyalty to them, and think that you are betraying them to the other side. This is a danger you will come to grips with during both the Balance of Power exercise and the Fourth of July exercise.

As we ramp up to those exercises, here's my question for you. As an attorney, how would you prevent that kind of constituent/client misunderstanding arising?


  1. In my opinion the best way to avoid confusion by your constituents would be to discuss openly your strategy with them beforehand. Although in many, and possibly all cases, it may not be possible to foresee where a negotiation will ultimately lead, a frank discussion with your constituents may be able to diffuse this and other misunderstands before they become troublesome. Moreover, if your constituents understand your general strategy they may be able to reinforce the point that "our side" understand where "their side" is coming from.

  2. Besides communicating your strategy beforehand (and, in the attorney-client relationship, getting the client's permission to pursue the strategy), I think it might help to discuss your actions with your constituents or clients after the fact. For example, if you express merit for the other side's point, you should make an effort to explain to your constituents why you said that in order to prevent confusion and misunderstanding. Communication is key to clearing up confusion and preventing further misunderstanding.

  3. I agree with Dennis about communication before hand (as making sure they know your strategy will help them understand your moves) I think the other thing that needs to be done is to build that trust before the negotiation. Creating that bond will, even if the client doesn't understand what is going on at the time, allow them to truly believe that you are doing what is in their absolute best interest. That rapport starts with the initial interview and must be built upon with each meeting from thereon out.

  4. How about constituent involvement? It might be possible not just to communicate a strategy but to enlist the help of your constituents/clients in finding value in the other side's position. Evaluating the strengths and weaknesses of the counter arguments may help with envisioning a realistic settlement option and open up the channels of communication further.