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Leadership in the Trial Courts/District Court Maximizing Interests Through Negotiation Philip L. Lee Results Leadership Group, LLC www.ResultsLeadership.org & University of Maryland School of Public Policy Key Elements of Interest-Based Negotiation 1. Identify Interests Team Conversation 2. Generate Options to maximize interests 3. Apply Criteria where needed From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc What is a Successful Negotiation? (Elements of Interest-Based Negotiation) The agreement or result achieved: 1) Identifies and satisfies interests: Ours, well Theirs, acceptably Others, tolerably 2) Leaves no joint gains on the table: is among the best of many options (i.e., maximizes interests) 3) Is legitimate -- parties view the outcome as fair and sensible as measured by criteria From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc. Key Elements of Interest-Based Negotiation Desired Relationships Efficient Communication 1. Identify Interests Team Conversation 2. Generate Options to maximize interests 3. Apply Criteria where needed BATNA Commitment From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc What is a Successful Negotiation? (The Seven Elements of Interest-Based Negotiation) (continued) The agreement or result achieved: 4) Includes commitments that are well planned, realistic, and operational 5) Is better than our BATNA - Our Best Alternative to a Negotiated Agreement 6) The process is efficient – there is effective communication 7) The process helps build the kind of relationship we want From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc. Key Elements of Interest-Based Negotiation Desired Relationships Efficient Communication 1. Identify Interests Team Conversation 2. Generate Options to maximize interests 3. Apply Criteria where needed BATNA Commitment From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc Positions vs. Interests Position: One party’s solution to an issue Interest: One party’s concern about an issue Issue: Plans for Friday evening. Person A’s position: I want to go to Chez Pierre Restaurant and then go see the movie Rocky VI I. Person A’s interests: ____________________ Person B’s position: I want to have your roast lamb for dinner and watch the Terps play basketball on T.V. Person B’s interests: ____________________ Positions vs. Interests Position: One party’s solution to an issue Interest: One party’s concern about an issue Issue: Time for weekly administrative meeting. Person A’s position: I have changed the time of our weekly meeting to 8:00 a.m. Person A’s interests: ____________________ Person B’s position: You cannot require me to come to work before 9:00 a.m. Person B’s interests: ____________________ Court Administrative Team: Maximizing Interests (Option 1) 1. Identify issues that you might want to address 2. For one issue, identify the interests of (a) each team member and (b) any other significant parties/stakeholders 3. Generate options to maximize/better satisfy those interests 4. Bonus step: For other stakeholders, what is their BATNA? Court Administrative Team: Maximizing Interests (Option 2) 1. Identify an interest or interests (individual or shared) you would like to maximize or better satisfy 2. Generate options to maximize/better satisfy the interest(s) 3. As you consider each option, identify any other parties/stakeholders who have interests that are in possible conflict with the option. Where you identify conflicting interests, generate another option that will acceptably satisfy that conflicting interest. 4. Bonus step: For each other party/stakeholder, what is the party/stakeholder’s BATNA? Negotiation Analysis Party Interests Options (connect to interests) BATNA Negotiation Analysis Party Interests Options (connect to interests) BATNA Interests Element Description Guidelines •Underlie positions Clarify Interests, not positions: •What are our interests? The agreement satisfies interests: •Ask why? Why Not? •What are their interests? Ours, well •Agreement is better to the extent it meets the interests of the parties •Look for interests that are shared Options •Capitalize on different interests •The full range of possibilities Invent Options for mutual gain: •Can agreement be better for one party without being worse for another? •Separate inventing from deciding •Generate options through brainstorming - No evaluation - No commitment - No attribution Preparation •What is their Currently Perceived Choice? A problem or an answer? •Can we invent more possible agreements? •Can we change their choice? •Can we separate inventing from deciding? From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc Success Theirs, acceptably Others, tolerably The agreement leaves no joint gains on the table: it is the best among many options Element Description Criteria (Legitimacy) Alternatives •If agreement is not reached •Self-help: Does not require the agreement of the other party •Agreement should exceed BATNA Guidelines Know your Best Alternative To a Negotiated Agreement (BATNA): •Evaluate their BATNA? •Reality-Test both BATNAs Preparation Success •What’s our BATNA? The agreement is better than our BATNA •Can we improve it? •What is theirs? •Can we worsen it? Legitimately? •Fair as measured by external benchmark Use Objective Criteria to help evaluate options: •Are we using objective criteria? •Criterion or principle beyond the simple will of either party •Ask Why is it fair? •Criteria that will appeal to them? •Such external standards of fairness include intl. law, precedent, standards, or principles, i.e. reciprocity •Use the test of reciprocity •Look to fair procedures •To third parties? From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc The agreement is legitimate - parties view the outcome as fair and sensible as measured by criteria Communication Relationship Element Description Guidelines Preparation •Parties have improved Separate people from the their ability to work problem: together rather than •Deal with the Relationship damage it & the substance, each on •Ability to deal with their own merits differences •Attack the problem, not the people •Are the parties better/worse to deal with future differences •Can we improve the interaction? •Outcome reached efficiently without waste of time or effort Facilitate good two-way Communication: •Are we listening? •Effective two-way communication •Balance advocacy with inquiry: explain our reasoning -Inquire into theirs •Listen •More concerned/softer on the people? Success The process helps build the kind of relationship we want •More rigorous/harder on the problem? •Should we consult before deciding? •Are we open to persuasion? (Or not?) •Do they know it? •Frame what we say in light of what they say From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc The process is efficient - there is effective communication Commitments Element Description Guidelines •Agreements between Make Commitments at the the parties as to end of the process: actions they are to take •Talk first, decide later over time •Think of how, as well as what Preparation Success •What realistic commitments come next? The agreement includes commitments that are planned, realistic, and operational •Are they credible? •Yesable? •Compliance-prone? •No commitments until interests and options are fully explored From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc The “Soft or Hard” Dilemma Soft on Everything Hard on Everything Consider Have to talk Don’t have to talk Evaluate in terms of BATNAs in each case Insist on maintaining relationship Insist on acceptance of our position Deal with relationship & substance, but separately (soft on people, hard on problem) Open with a reasonable position Open with an extreme position Don’t focus on positions, clarify interests Concede generously Concede stubbornly Separate brainstorming from decision-making Focus on what we will do; make offers Clarify what we won’t do; make threats Maximize legitimacy; seek criteria persuasive to them From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc Books on Interest Based Negotiation • Getting to Yes, Roger Fisher and William Ury (1981) • Getting Together, Roger Fisher and Scott Brown (1988) • Getting Past No, William Ury (1991) • Difficult Conversations, Douglas Stone, Bruce Patton, and Sheila Heen (1991) • Getting Ready to Negotiate, Roger Fisher and Danny Ertel (1995) • Getting It Done: How to Lead When You’re Not in Charge, Fisher and Sharp, 1999