The very first tip that I offer in my Top Ten Negotiation Tips is, “be prepared in advance”. But what does that look like?

Well, in addition to the more obvious fact-finding research required to be well prepared, there are also three essential questions that one needs to be asking before engaging in any negotiation:

  1. What do I hope to achieve as a result of this encounter?
  2. What can the other party realistically offer me?
  3. What can I do to encourage the other party to give me what I want?

What do I hope to achieve?
Many people enter negotiations with a long list of grievances, complaints, and perceived injustices. They are ready to “prove a point”, but have not thought through to the point of what they can actually obtain as a tangible improvement to their current situation. As I’ve stated elsewhere in this blog, there is no way to get what you want if you have not even identified what exactly that is.

What can the other party realistically offer me?
The starting point may lie in identifying what you want to achieve, but that initial goal may be meaningless if it falls outside the ability of your negotiating partners to offer it. For example, in nearly every case of an employment termination there is not going to be an offer of re-employment. Even in unionized workplaces where an arbitrator can actually order re-employment, it is often not the best outcome for a grievor. How pleasant is work life likely to be when one returns to work with the same people that spent months trying to terminate your employment? Or, for a different class of example, think about the ability of a mining company to completely “undo” a mining operation that has been in full swing for several years.

It is impossible to go back in time. In order to be successful at the negotiation table one needs to have a good idea of what the other party can actually put on the table. In the first example, the employer could conceivably offer enough money to provide income security while the ex-employee retrains for a new position – and could also pay for and provide the training. In the second example, the mining company could provide environmental remediation, relocation assistance, compensation, or perhaps a more generous share of the wealth created as a result of the mine.

What can I do to encourage the other party to give me what I want?
Clearly identifying what it is that you would like, and then identifying what lies within the realm of possibility for the other party to provide, is a good start. But the real key to successful negotiating is in convincing the other party that it is in their best interests to provide that to you. There are only two ways that this can occur.

  1. The alternative to helping you to achieve your goals, is sufficiently unpleasant that the other party believes that helping you is the best option.
  2. You can provide them with something of sufficient value to them, that they perceive your offering as a fair exchange.

The second option is nearly always the preferred one, as people are far more likely to be positively engaged when seeking a win/win outcome. However, the first option needs to be considered as well, and perhaps held in reserve. And if neither option appears tenable… it’s probably time to go back to question number 1, and start again.

 

ADRIO 2011: AGM and Professional Development Programme: The Art (and Science) of ADR – Event Details

Date: June 16, 2011
Hosted by: ADR Ontario

ADRIO 2011: The Art (and Science) of ADR
Metropolitan Hotel
(near corner of Armoury and University Ave)
108 Chestnut Street, Toronto, Ontario

9:00 ADR Institute of Ontario Annual General Meeting (all welcome)

9:45 Improving your Practice Through Introspection and Dialogue? You be the Judge!
This panel will discuss the issues that are uppermost in the minds of today’s mediators including:
What is your style as a mediator, and do you need more than one?
When, if ever, should you be evaluative and of what?
Does mediation always require a rational approach? What do you do with emotion?
How much does a mediator need to know about mental health?
How much expertise does a mediator need in the content of a conflict (as opposed to expertise in the process of mediation)?
So I’m doing mediation: what defines a mediation process, as compared to any other dispute resolution process?”
Is mediation a western cultural construct, and is this okay in a multicultural world?”

Moderator: Peter Bruer, BA, Conflict Resolution Service, St. Stephen’s Community House
Barbara Landau, LL.M., Ph.D., C. Med, Cert. F. Med., Cert. F. Arb., Cooperative Solutions
Roger Beaudry, C.Med., C.Arb, Aptus Conflict Solutions
Heather Swartz, C. Med, Agree Inc.

11:00 Coffee Break

11:15 The Art (& Science) of Arbitration
Our panellists will discuss the most important issues in arbitration including:
• Choosing effective ADR clauses for agreements
• Domestic and international perspectives
• Ad hoc or administered: the case for proactive case management in commercial arbitrations
• Adopting or adapting rules
• Three person panels
• Security for costs
• Jurisdictional issues
• Motions, production & discovery
• Motions for summary judgment and phased hearings
• Class action arbitrations
• Steps to reduce time and costs
• Use of experts: (single expert, expert
conferencing, expert for the tribunal)
• Compelling the attendance of witnesses
• Conducting the hearing
• Med/Arb
• Enforcement of awards/ limitation periods

Moderator: William G. Horton, C.Arb., FCIArb, WGH Dispute Resolution
Panellists: Thomas G. Bastedo, Q. C., Cert. F. Arb, Bastedo Stewart Smith
The Honourable James B. Chadwick, Q.C., Ottawa Dispute Resolution Group
J. Brian Casey, FCIArb, Baker & McKenzie

12:30 Lunch and Luncheon Speaker:  Elaine Newman, B.A., LL.B., LL.M., Newman Arbitrations Inc.

2:00 Conference Concludes

Download the brochure and registration form and Register Today!

 

Mental Health for ADR Professionals – Event Details

Date: April 1, 2011
Hosted by: ADR Ontario

With stress, anxiety and depression rampant throughout society and present in every workplace, it is no wonder mediators and arbitrators have found themselves managing situations where they suspect one of the parties has a mental health condition. How does one deal with that?

Read More

Sign up Now!

 

Manfred Max-Neef is a Chilean economist who has worked for many years to understand development issues third world economies.

Max-Neef developed a taxonomy of human needs along with a corresponding process which communities can use to identify endemic “wealths” and “poverties” according to how fundamental needs are satisfied.

Human Scale Development is defined as “focused and based on the satisfaction of fundamental human needs, on the generation of growing levels of self-reliance, and on the construction of organic articulations of people with nature and technology, of global processes with local activity, of the personal with the social, of planning with autonomy, and of civil society with the state.” (Max-Neef et al, 1987:12)

The main contribution that Max-Neef makes to the understanding of needs is the distinction made between needs and satisfiers. Human needs are seen as few, finite and classifiable (as distinct from the conventional notion that “wants” are infinite and insatiable). Not only this, they are constant through all human cultures and across historical time periods. What changes over time and between cultures is the way these needs are satisfied.

http://www.rainforestinfo.org.au/background/maxneef.htm

Max-Neef Needs Matrix from The Rainforest Information Centre

My own needs model, the Three Fundamental Needs Model, was most recently discussed in my blog post The Values Filter.

 

This article by Ryan Black , Alison Hayman , Sarah Kilpatrick and Peter Wells of Lang Michener LLP covers topics including; File Sharing and Format Shifting,  Circumventing Technological Protection Measures, Time Shifting,  Exception for User Generated Content, Performers’ Rights, Network Service Providers, Libraries, Fair Dealing, and Ownership of Copyright in Photographs and Portraits.

After failed attempts in 2006 and 2008, the government tabled the Copyright Modernization Act (Bill C-32) in the House of Commons on June 2nd, 2010.  It has proven politically difficult in Canada to pass this type of legislation even though it is urgently needed.  Time will tell if this third attempt has struck a politically acceptable balance between the rights of users and owners of copyrighted works.

Read more at LangMichener.com.

May 302010
 

The core concept behind The Goal Focused Way is that we need set clear, ambitious, and achievable goals in order to succeed in any endeavour. Goals are set based on interests, and interests are determined based upon our needs. By knowing our interests, the interests of those of the people that we communicate with, and the alternatives available, we are able to work towards the achievement of mutual goals. Good communicators and successful negotiators always try to help other people achieve their goals as the first step in reaching their own goals.

An integral part of The Goal Focused Way is the Three Fundamental Needs model that I developed – based on an updated interpretation of Abraham Maslow’s Hierarchy of Needs

Comparing Maslow's Hierarchy of Needs with Allan Revich's Three Fundamental Needs Model

We all share the three fundamental needs of Security, Status, and Stimulation. Individuals can vary greatly in the importance that they place on different needs. Also, within each Fundamental Need there can be major differences in the value placed on different components. For example, for some people Status Needs may manifest as a desire for a prestigious job title, while other people may seek to fulfil status needs by being the person that friends, family, and colleagues always seem to callupon first when they need help or advice.

Personal values are mostly accounted for within the Three Fundamental Needs Model, and personal values of others can be very difficult to determine. It is usually much easier to determine the weight that people place on their different fundamental need than it is to “see into someone’s soul”, so I have tended to leave the conversation about personal values to professional who provide counselling and therapy. Personal values are a very important factor in human behaviour, but there is limited utility in working with a factor that is virtually always invisible. Fundamental Needs can also be “hidden” at the outset of communications, but they can usually be gleaned by observing behaviour and through disucssions about interests and goals. Values generally remain invisible. Partly because they are so ingrained in the essence of our own being, we have difficulty imagining that others may not share values that seem innate to all human beings.

…So, if we can’t see them, and we can’t make use of them, what value are values to the negotiation process and/or to interpersonal communications?

People filter all of their needs through what I would term a “Values Filter“. Most of the time, for most the people within a community, the Values Filter is so similar that we can in fact take it for granted. BUT… sometimes, when we are at a communications impass, we might need to consider the possibility that the person(s) that we are negotiating with, may be filtering their needs through a Values Filter that is so different from our own, that they seem to arrive at Interests and Goals that we have trouble understanding.

Good communicators, and successful negotiators, must be aware of the Values Filter. Once we recognize that we are communicating without a foundation of shared values, we can take appropriate remedial action.

 

The Goal Focused Way is not to be confused with old ideas from positional negotiation in which “goals” and “targets” were interchangeable terms. There may have been a so-called simpler time when targets and goals and negotiating positions were all the same thing… But we have learned a lot since those days. Between The Art War (or The Prince) and The Goal Focused Way there was an important interruption, in the guise of Roger Fisher and William Ury with their groundbreaking work, Getting to Yes.

Positional bargaining, based on setting a firm target, then digging into a position, and fighting like hell to reach the target, turned out to be less than useful for most human interactions. Especially for those interactions in which it was important for relationships to continue in some form or another. Even in those cases where realtionships are damaged or dificult, it turned out that they still continued, albeit perhaps with changed dynamics.

The Goal Focused Way moves forward from Getting to Yes, not backwards. Principled negotiators bargain based on interests rather than positions. Instead of stating a position and then using that position as a fixed target, the principled negotiator attempts to satisfy the most important interests of all parties to the negotiation. This turns out to lead to much more satisfying results for everyone involved. But…

Sometimes the interests of some of the parties are irresolvable. Sometimes one (or more) of the parties is not interested in negotiating for anything other than their positional target. Sometimes there isn’t enough time to move someone away from their positional stance. William Ury addresses some of this very well in his follow up book, Getting Past No, but eventually every Principled Negotiator will face an unprincipled adversary. The temptation is then to do one of two things:

  1. Continue negotiating in a pricncipled interes-based manner to get the best deal possible “under the circumstances”, or
  2. Drop the principled stance and negotiate in the same confrontational and positional manner as the other party

04 Oct ’09

The Goal Focused Way offers a third and much better option. The Goal Focused Way does not require its practitioners to either capitulate to bully negotiators – or to bully back. It is effective in all negotiations, of all types, all of the time. The Goal Focused Way takes the most practical and effective ideas from Principled Negotiation (i.e. Getting to Yes), And remembers that at the end of the day, negotiations were entered into because there were interests to be satisfied and goals to be achieved. The Way then uses concepts from the leading edge of contemporary psychology (CBT & SFBT) – and combines it all into an easy to implement, extremely effective, and highly adaptable model that works in the real world.

It is possible to become a better negotiator and a more effective communicator. Visit the Goal Focused Way main site to learn more, or to engage the services of Allan Revich.

May 232010
 

28 Apr ’08

I was recently involved in a discussion about the appropriateness of using the grievance process to address bullying in a unionized workplace. There seemed to be consensus among all of the participants that the formal grievance process was not the best way to resolve bullying complaints. But there was not consensus about whether bullying and other forms of psychological harassment should be grievable in a collective agreement.

In a formal grievance there are always two conditions that must be present. There must be something grievable, like a violation of the collective bargaining agreement (CBA), and there must be redress. While many CBAs have bullying clauses that permit psychological harassment (bullying) to be grieved, the redress can be problematic because the redress is that “the bullying must cease”. On the surface that would seem to be pretty reasonable. But implementing and policing the cessations of psychological harassment can be difficult and sometimes impossible. What if the “bully” agrees to stop, but either does not, or else simply shifts to behaviours that are more subtle. It can be difficult enough to demonstrate that psychological harassment is taking place – it can be much more difficult to demonstrate that it has stopped.

Because redress can be difficult to achieve through a formal process, and because there will usually be an ongoing relationship between the parties, mediation, counselling, workplace education interventions, sensitivity training, and other alternative dispute resolution processes are often much more successful than grieving in achieving long term positive change in workplaces where bullying and other forms of psychological harassment is an issue.

So, if mediation, education, and collaborative problem solving is much better than grieving, why was there any disagreement about whether the right to grieve should be included in a CBA clause about bullying? The answer to that question requires that another question be answered first. What happens if the collaborative process breaks down and the parties are unable to agree upon a way forward? Someone has to be able to make the final determination of a resolution of none can be mutually agreed upon. In workplaces governed by collective agreements, the final arbiter of a grievance is an external arbitrator. The arbitrator examines the facts of the case and the evidence of each party, and then imposes a settlement that all parties must abide by. In standard negotiation theory each party has a “BATNA”, or a Best Alternative to a Negotiated Agreement.

With arbitration as the BATNA all parties are on an even playing field. Everyone is motivated to reach a mutual agreement because nobody wants to be told what to do by an arbitrator. The Union may worry about the financial and political costs of losing, while the employer will be worried about long-term financial impact, restriction and reduction of management rights, the logistics of implementing an unfavourable decision etc. But if there is no option for grievance and arbitration the playing field is no longer even. The victim’s BATNA becomes the status quo, while the perpetrators BATNA becomes a settlement imposed by the employer. If the perpetrator is also the employer then the power imbalance makes mediation impossible.

In a sense then, the best way to avoid using the grievance process to resolve bullying complaints is to use alternative dispute resolution, AND the best way to insure that the ADR process is successful is to have grievance and arbitration as the BATNA.

May 222010
 

31 Dec ’07
[The blog below was fist posted on the date above]

Here are two brief but pithy quotes from one of my favourite thinkers, Albert Einstein.

Let’s say goodbye to 2007 with, “Insanity: doing the same thing over and over again and expecting different results.”

…and welcome 2008 with, “Anyone who has never made a mistake has never tried anything new.”

Best wishes for a happy, prosperous, and peaceful new year. Don’t be afraid to try something new.

Allan

Albert Einstein

May 212010
 

16 Nov ’07

Conflicts can arise from many different sources. In complex, multicultural societies, like those common in major urban centres, a sometimes overlooked source of conflict is the cultural diversity itself. Cultural diversity brings numerous benefits to us, but it is easy to forget that part of our diversity is that we see the same things in different ways. In my travels through Europe and Israel I have been fortunate to meet wonderful people with world views that are different than the one that I grew up with in Toronto of the 60s and 70s. A few examples from my own experience can highlight some of the ways in which different world-views, and associated value systems, can lead to very difficult to resolve conflicts.

  1. What’s Wrong With Hiring my Son?” – In North America and Northwest Europe we value fair competition, independence, and rewards based on merit. Providing a job, promotion, or public benefit for a relative is considered to be dishonest, and cheating. We try to help our kids to be competitive by encouraging them to study hard, work hard, and play by the rules. But in some Mediterranean and Middle Eastern societies family bonds are much more valuable than other types of social bonds. For a person to be in a position of power, with the ability to provide direct aid to a close relative… and then not to aid that relative, is practically incomprehensible. It would be considered the pinnacle of absurdity to refuse to help a family member in need. What we see as nepotism, some other cultures perceive as common sense.
  2. But They Signed The Contract!” – In most Western cultures a signature on a contract is an irrevocable bond. We tend to be very careful about what we sign our name to, because we know that once we have signed a deal we are committed to its terms. When I was growing up, the father of one of my close friends used to complain about “those people over there” who would simply refuse to honour the contracts that they signed. Even when the deal was done, it seemed that there was more negotiating to do. He was shocked because when he left for home everybody seemed pleased with deals. But in the part of the Middle East that he did business, deals were cemented through relationship bonds and the people there did not really see much significance to the act of writing their names on a piece of paper. They were not being deliberately dishonest, and they were not trying to cheat. It was just that the “signature part” of deal making was not nearly as important as the relationship building, and accumulated trust over time was. Now this was nearly 30 years ago, and things may have changed “over there” since then — but it is still easy to see how a cultural miscommunication can lead to conflict inducing perceptions.
  3. I asked for directions and he looked me in the eyes and lied.” – This one still occurs in Israel from time to time. People with European backgrounds place a very high value on so-called objective truth and honesty. For us, it is much very important to be honest, straightforward, and accurate. So, if we are asked for directions we either give good directions, let the questioner know where they might find the directions, or simply apologize and say, “I don’t know”. But in the Middle East a much higher premium is placed on hospitality and service to those in need. If asked for directions, one has a moral duty to provide directions. It is considered impolite and rude to refuse to provide an answer. It is more important to provide “an” answer than it is to provide “the right” answer. Besides, it shouldn’t be long before the questioner asks for help again and is provided with the proper directions and maybe even a ride to their destination by someone else. No harm was done and you answered their question!

All three of the above examples are based on my own experiences and anecdotal evidence. They are meant to be illustrative of the pitfalls of cultural naivité, and not lessons in sepcific cultures and cultural traits! As I mentioned in the second story, some of the specific stories are 30 years old and may or may not still be relevant. But the lessons that I learned from these stories still apply today, and will continue to apply anywhere and any time that people from different cultural backgrounds work together. It is not always critical to know everything about, or every difference between, different cultures — but it is vitally important that what might at first seem to be “obvious” dishonesty, bad faith, or bad behaviour may in fact be anything but. Maybe someone is looking at you and wondering what the heck it is that you are thinking!

© 2011 The Goal Focused Way Suffusion theme by Sayontan Sinha