Positive Negotiations, Part 3: Focusing on “Can Do”

In this video, I explain how framing “The Problem” everyone faces at a mediation as the Evidentiary, Systemic, and Advocacy Risks everyone will face if they go to trial helps to orientate everyone toward a positive negotiation effort.  Positive negotiations have a much better chance of leading to a principled resolution that all sides can legitimately feel “gets it right.”

Video Transcript

Framing of the problem all sides share at a mediation as the array of evidentiary, systemic, and advocacy risks in going to trial orientates everyone toward a positive negotiation effort.  And the reason to engage in positive negotiations is they can lead to a principled resolution that all sides can legitimately feel “gets it right.”  That is, we can aim for, and reach, a solution that doesn’t leave everyone feeling disappointed.  In this video, I will explain how this framing of this shared problem can transform negotiations into this positive exercise.  

But first, let’s take a look at why traditional negotiations frequently do end up leaving all sides feeling disappointed.  It begins with each side framing “The Problem” in terms of what they believe happened to cause the dispute in question.  Now, neither of the parties are at fault for this.  They typically submit “position papers”, and make presentations that lay out their particular position, because that is what mediators typically request.   

But notice what happens with this kind of framing.  From this point forward, all the negotiations  focus on moving each side from their respective positions regarding what did - or did not - in fact happen.  That is, the mediator asks each side to make concessions and to compromise on their position.  They might reach a settlement, but if they do it is because both sides compromised enough to get there, and all that compromising leaves everyone feeling disappointed.  

If we want people to feel something better than disappointed - and I think that is a worthy goal, for a whole host of reasons - we need an approach that guides the parties toward a resolution that, in their minds, actually “gets it right”.     

We can do this when we frame the problem at the mediation as the array of different risks each side faces - plaintiff and defendant - should they go to trial.  

And this really is the problem all sides face.  In truth, neither side will decide their own case. And although that states the obvious, just consider for a moment those “position papers” and presentations I just mentioned.  They present each side’s own determination - that is, their “position” - of what in fact happened.  But do these presentations focus each side on the real problem they each have at the mediation - that is, the risks they each face in an impending trial?   

By correctly framing the real problem all sides face at the mediation as those risks of trial, we encourage the parties to replace those positional presentations with a more positive - and helpful - strategy that identifies and emphasises the very specific risks each side will face at that trial.  Those, after all, are the specific risks they can manage at the mediation. 

The really good news is everyone can do this, and it only takes a slight reorientation in approach.   

Instead of presenting their respective “positions” regarding what in fact happened, all they have to do is present what they can do to prove what in fact happened.  After all, it is what each side can do at trial that represents risk for the other.  

And all I mean by “can do” is what best evidence can each side present to prove their claims or defenses.  

Note how everything changes for the better when each side makes this very modest change in approach.  

First of all, it is inherently positive - focusing on what each side can do as opposed to what they can’t do - which is essentially what happens with positional bargaining.  

Second, this “can do” approach focuses everyone on their respective Evidentiary Risks of trial,  and if you saw my last video, I explained those Evidentiary Risks are the one type of risk each side can reasonably identify, appreciate, and manage through negotiations.  

And third, it objectifies - and depersonalizes - the negotiating effort.  It is much easier for all parties to appreciate and manage bona fide risks that run from the best evidence an opposing party genuinely can present at a trial than it is for them to move away from their “position” regarding what happened and towards the other side’s “position” of what happened - which is what they are asked to do in the positional approach to negotiations.

So when we frame the problem as the shared risks of trial, each side can optimize its negotiations by showing what they can do - that is what best evidence they can present - to prove their claims or defenses.  They can then - with the help of the mediator - objectively manage their evidentiary risks - while remaining ever mindful of the systemic and advocacy risks that lurk in the background.  And in negotiating to manage the legitimate risks running from each side’s best evidence, the parties are less likely to feel disappointed by any resolution they reach.  Instead, they are more likely to feel a resolution they agree to with this approach actually “gets it right” considering all that evidence.  

In my next video, I will give very simple examples of a “positional” presentation versus a best evidence, Can-Do presentation, and the impact that can have on negotiations. 

Until then, goodbye.