Posturing or Negotiation?

It’s been a bad summer for the concerned observer about the dying art of negotiating on the international stage. As a mediator I have watched from behind my sofa as Russia and Ukraine “negotiate”. It goes something like this. One party demand complete and utter surrender, public admission of wrong doing, surrender of territory and eye watering economic penalties. In other words - wholly unrealistic terms which have not even a remote chance of acceptance. Unsurprisingly the terms are rejected and equally unreasonable counter terms are proposed. They are rejected but the sides go home proclaiming that they are happy because they are partaking in “negotiations” and everyone can see that they are playing the game. It is, of course, not negotiation but utterly pointless posturing that they are taking part in without even the faintest hope of reaching settlement terms. The vital ingredient of settlement-compromise - is wholly absent.

Which brings me to mediation...

There is more than one way to negotiate successfully. Mediators see every day the consensual “win - win” method exemplified by “Getting to Yes” (Fisher, Ury and Patton) and the more “in your face” style of “You Can Negotiate Anything” (Cohen). Both have their merits and it is important to adopt the best approach for your particular dispute. Has anyone adopted the “give me everything/I’m giving nothing” approach to a dispute I’ve been mediating? Absolutely. Has it ever been successful? Not in my experience (over 1,000 mediations).

Taking an unnecessarily aggressive/unrealistic approach does not demonstrate to the other side that you fully understand the strengths and weaknesses of the case or where compromise may lie. There is no message sent to your opponent that settlement is remotely on the cards.

So what do I believe are the essentials to a successful outcome to negotiation?

• Preparation is key. Know your case and your opponent. Test your strengths and weaknesses. What are realistic outcomes? What are unrealistic outcomes? Is the deal good for both sides?

• Posturing and aggression in a mediation rarely succeeds - it just annoys your opponent and makes settlement less likely.

• On the other side of the coin calmness and authority show the other side that you understand their case and are in control of the situation.

• Try and make a connection with your opponent-you catch more flies with honey than with vinegar.

• Craft your first offer carefully and then sell it to the other side. The power of the first offer cannot be overestimated. A measured offer realistically demonstrating the strengths and weaknesses of the case and giving appropriate concessions shows the other side both your command of the merits but also the willingness to compromise.

• Compromise. It all comes down to compromise. To have a successful mediation all parties need to compromise - and to do so meaningfully.

I’m not saying, of course, that negotiation is not sometimes difficult. The art - it seems to this mediator - is to be prepared, polite, measured, realistic, open minded and flexible. Above all recognise the risk of posturing and avoid it at all costs.