Positive Negotiations, Part 6: Establishing an Environment that is Conducive to the Appreciation Process

In this video, I discuss how we can encourage everyone to step away from positional and adversarial negotiations, and toward a more analytical and constructive approach.  I explain how we can do this by establishing a non-coercive environment in which we can guide the parties through an appreciation of the evidence that defines their dispute. 

Video Transcript

In my last video, I explained why it helps everyone to go through a detailed appreciation of each side’s best evidence at a mediation.  In this video, I will begin to discuss how we can engage in this appreciation process in a way that encourages everyone to step away from positional and adversarial negotiations and toward a more analytical and constructive approach.   

As I have mentioned before, an appreciation is simply a logical process of reasoning whereby we consider all the circumstances of a particular situation in order to make our best decision regarding that situation. 

So how do we do this when mediating a dispute between opposing parties who already have opposing positions?  Well the first step is to establish an environment that is conducive to going through the appreciation process.  We want people to think, and even rethink, rather than retrench or even walk away.  

And here is an interesting lesson I had, years ago, and when I was going through my training to become an Army officer.  As you might expect, that training was very challenging - both mentally and physically.  We went through some pretty grim stuff with some pretty rugged individuals who would shout at us a lot.  And there were good reasons for that.  We had to learn how to do our job while under extreme fatigue and duress.  

But when it came to learning how to conduct a “tactical appreciation", our instructors switched from being seemingly demonic to being surprisingly benign.  And there was a very specific reason for this.  They wanted us to learn how to engage in this “logical process of reasoning” so we could make good tactical decisions.  This was all about “getting it right” in an environment where “getting it wrong” could be truly catastrophic. 

The lesson here is that even in the military, where intimidation is often the norm, our instructors understood the best way to teach this appreciation process was to set that intimidation aside and instead give us the freedom to think.   

I mention this because in the world of litigation and trials there are a handful of people - including a minority of lawyers and even some judges - who attempt to get what they want by intimidating others to accept their demands.  In other words, they seek to coerce rather than persuade.  

The trouble with coercing resolutions, however, is it is inconsistent with a legal system that is designed to provide reasoned - and therefore principled - resolutions, and those who take this coercive approach end up undermining public confidence in a legal system that is otherwise reasoned, principled, and therefore just.   

By contrast, when we help people appreciate the evidence-based risks of their disputes, and empower them to make reasoned decisions on how to resolve those disputes, we reaffirm and build trust in the very impressive legal system we are so fortunate to have.  

My Army instructors were anything but coercive when they taught me how to conduct an appreciation.  Here is how they did it.

As with most things that work well, it was very simple.  We had to carefully observe each critical aspect of a given scenario, and for each observation we had to ask ourselves, “so what?”  Not “so what?” in a dismissive way, but as an abbreviation for, “so what does the thing that I am observing mean to me in terms of my ability to achieve my mission?”  

We would then list out the various potential consequences - good or bad - of each thing we observed.  

If we missed something, an instructor would prompt us with open-ended questions.  “Do you see that depression in the ground just a half right to that central open area?”  “What is the visibility of that depression to the enemy position you observed at quarter right?”  “How much might that affect your approach?”  And so on.  

Just as importantly, they would listen to our responses, never arguing with what we had to say, but perhaps asking additional open-ended questions to further guide our analysis.  

Our instructors’ objective was to build our confidence in our abilities to appreciate a situation and to make decisions regarding that situation.  They achieved that through their guidance.  Had they done anything less than that, they probably would not achieve their objective. 

This guiding approach is just as efficacious to mediations.  After each side has laid out their best evidence for their claims or defenses, the mediator can caucus with each side and ask them the “so what?” questions.  It is then the mediator’s job to listen to each response, acknowledge and even affirm those responses, and then ask any additional open-ended questions that may be necessary to ensure each side does indeed go through a full and fair appreciation of that evidence.  The goal here is to build trust in both the mediation process and in each side’s appreciation of the evidence and the risks associated with that evidence, so we can foster a constructive effort to resolve the dispute through negotiations.  

In my next video, I will run through the kinds of open-ended questions we can ask to guide people through this appreciation process. 

I look forward to seeing you then.  Goodbye.