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Conflicts and Disputes

Conflicts are inherent and necessary to our life and development.

For a large part, our personality emerges from our conflicts with our parents and our environment.

The most usual operations in our lives are based on conflicts: the contract of sale results from the resolution of the conflict between the interests of the seller who wants more money for less goods and those of the purchaser who wants the opposite. The same remark applies to all operations in the economy.

The market economy is based on two permanent conflicts: supplier/clients and supplier/supplier through competition. There may be a client/client conflict in case of scarcity or for unique objects (auctions organize the resolution of such conflicts).

Thus conflicts contribute to structure our social life.

It also gives it energy. Wars demand the mobilization of all the strengths of society and they often are the occasion of a considerable acceleration of social change. The example of the change in the social role of women after the First World War, which compelled them to take on the roles of men, is often given.

These periods of high conflict compel engineers to increase their creativity to discover new techniques and new products. It is a form of exasperation of competition.

But conflicts are often destructive. It is obviously the case of wars and of all conflicts, which resolve by open force. It is also the case of court proceedings that consummate considerable amounts of energy and thus money for an uncertain result, which will arrive when it is not needed anymore.

We shall call “dispute” a conflict which has reached this stage where it become detrimental to the parties and possibly to their environment. Competition becomes a dispute when the parties do not only challenge each other on the quality or the price of their products, but when they denigrate each other, hire the other one’s employee etc.

According to a common comparison, if the conflict is an iceberg, the dispute is the tip of the iceberg.

This distinction shows that there is no difference of nature between the negotiation/mediation of a contract and of a dispute. In both cases, we are facing a conflict. In one, the parties express their willingness to resolve the conflict in a constructive manner. In the other, they have undertaken aggressive actions. They first have to be convinced to stop or suspend them to be able to work on a positive solution.

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In terms of negotiation/mediation, the resolution of a dispute is not different from the construction of a contract, except that we will start from further away. When we use the word “conflict”, it will mean disputes as well as conflicts calling for a contractual solution.

Disputes showing the strongest image of conflicts, we shall study them to characterize both disputes and conflicts in this book.

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What Is a Dispute?

As we decided to study dispute resolution, the first question is certainly to define what is a dispute.

DIVERGENT OPINIONS OR PERCEPTIONS

When I ask my students what is a dispute, the answer that usually appears first is: a divergence in opinions or a difference in perceptions.

It is obviously necessary to have diverging opinions, which is generally coupled with a difference of perceptions to have a dispute. But many differences in opinions and perceptions do not create a conflict nor a dispute.

For example, if you like Picasso and I do not, there is no dispute and no need for a negotiation between you and me.

DIVERGENT INTERESTS

Participants in my seminars, when they discover that a difference in opinions is not sufficient to demand a negotiation, often come up with the idea of a divergence in interests.

Indeed, this was missing in the previous idea. Neither you nor me had any interest in having the other share our opinion about Picasso. If we would discuss it, it will be a more or less enjoyable conversation but none of us will have gained anything at the end, even if the other changed his mind.

Imagine that you feel like going to the seaside for your next summer vacation. Imagine that, on the contrary, I feel like going to the mountains to breathe the fresh air of the summits. We both have different and contradictory interests.

Are we having a dispute? Do we need to negotiate? If, as I am afraid, we do not know each other, there is nothing to negotiate. Why? Because there is no inconvenience for me if you go to the sea and none for you if I go to the mountains.

Obviously things might be different if this conversation was taking place between my wife and me.

What is the difference between my wife and you? There are probably many… But the one we are interested in here, is that my wife and I are supposed to spend our vacation together.

There seems to be a dispute and a negotiation may be needed between my wife and me on the question of the place of our next vacation.

But it is not always the case. If we just bought a house and if we should spend the summer working on it, we shall spend the summer at home and it

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does not matter that one wants to go to the sea and the other one to the mountains. There is nothing to negotiate: we will not go anywhere though we would both still like to go to the sea or the mountains.

Thus the divergence of interests about the place of our common vacation is not enough to create a dispute and to call for a negotiation.

DIVERGENT WILLS

If, on the contrary, we have nothing else to do than rest away from home, there will be a dispute and the need for a negotiation because one wants to go to the mountains when the other wants to go to the sea. In case we need to remodel the house, the interests remain but the wills disappeared. We still feel like going to the mountains or to the sea but we do not want to go anywhere.

There must be wills in addition to interests to have a dispute: the wills to satisfy our interests.

THE BLOCKAGE

Now that we have acquired this concept of will, which is characteristic for negotiation, let’s go back to the case at hand.

If you want to go to the sea and I want to go to the mountains, is there a dispute between us.

Still not. Why? Still for the same reason: you can satisfy your will of going to the sea without preventing me from going to the mountains and vice versa.

On the contrary, my wife and I cannot do that. If we go to the sea, I will be frustrated. If we go to the mountains, she will be frustrated. If we spend our vacations in different locations are we still husband and wife?

Now we have grasped the definition of a dispute, which may need negotiation/mediation:

A dispute is an opposition of wills, such that the satisfaction of one prevents the satisfaction of the other.

As long as your opinion, your interest or your will are not obstacles to the satisfaction of my will, there is no dispute and nothing to negotiate. We can exchange our views, discuss, try to mutually convince the other. Negotiation will start when you will want to change my will in order to satisfy your will and vice versa.

This situation can be described like this:

In other words, the dispute blocks the wills. This feeling of blockage characterizes the dispute. It automatically manifests itself as soon as the dispute appears.

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PRACTICAL USEFULNES OF THIS DEFINITION

What is the interest of this definition? Certainly not to find another definition like there certainly are many other ones.

It reveals three fundamental notions:

1. There is no difference between a negotiation to resolve a dispute (put an end to a territorial war, obtain damages from an insurance company) and a negotiation to conclude a contract (buy a house, agree on the conditions for writing a new software program). In both cases, interests, sustained by wills, are opposed, contradict each other and block each other. Negotiation aims at overcoming these oppositions to allow an agreement, which will put an end to this opposition.

The difference resides in the fact that in the case of a dispute, the blockage is real whereas in the case of a simple conflict, there is only an inconvenience or a risk of blockage.

2. Whether this agreement is immediately executed (by the payment of damages for instance) or leads to a long-term cooperation between companies or states, does not change the problem of the negotiators much, even if the atmosphere in the room will considerably change. The fundamental problem remains: how to overcome this opposition of wills which prevents the satisfaction of both?
3. In opposition to what we often feel when we find ourselves caught in a dispute, one needs two wills to have a dispute and this includes your will. We often feel that the dispute is due to the other party. “It is him who changed his mind. It is him who went on strike. It’s not due to me.”

Well, yes! It is partly due to you. There is a dispute because you oppose the other’s will. Never mind the reasons why you resist. They may be excellent; maybe the other party is totally wrong. Nevertheless if there is a dispute, it is because your will contradicts his.

There will then be two kinds of solutions to this opposition of wills: the first one will tend to change the will of only one party, the second will be based on the change of the wills of both parties. The first does not result from negotiation/mediation but of constraint: “We shall do as I say!”, “We will go on vacation where I want!”

Negotiation consists in changing both wills. It does not consist in trying to impose your will.

If you start a negotiation/mediation session with no intention to change your will, you are losing your time.

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Needs, Interests and Desires

On our way to the definition above, we passed by the stage of interests. The dispute appears as an opposition of interests to which an opposition of will is added.

Will is pretty simple concept: I want or I do not want this or that. Possibly, I do not want you to obtain satisfaction. Your frustration will be my satisfaction.

The concept of interest is significantly more complex.

A financial interest is easy to understand. In the case where your frustration will be my satisfaction with the risk of inflicting a major loss to myself (again the endless inheritance cases where the assets perish), the concept of interest is less clear. Acting like this, I am clearly acting against my financial interest.

This is why we need to use the broader concept of needs.

There is a vast literature on the definition and the description of human needs.

I suggest that we work on the best known one: Maslow’s pyramid.

MASLOW’S PYRAMID

Abraham Maslow (1908-1970) is an American psychologist who worked on human motivations.

He described five types of needs, which he hierarchized under the form of a pyramid:

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Physiological Needs

The lowest level corresponds to the physiological needs linked to survival: to drink, to eat, to sleep and to eliminate. If any of these needs is not satisfied, we die.

The Need of Safety

Above psychological needs, we find the need for safety. It regards the need to resist aggressions by climate, animals or humans. It also corresponds to the conservation of the satisfaction of our physiological needs. I need:

• A house that protects me against bad weather, predators and thieves;
• To know that I will have food for lunch, dinner and tomorrow;
• To know that I will be able to keep using my house in the future, etc.

This need comprises two dimensions:

• An immediate one: protection against aggressions;
• One over time: a guarantee for the future.

This need is found above physiological need and is narrower. By this, Maslow intended to show that we only need safety once our physiological needs are fulfilled. If our physiological needs are not satisfied they will preoccupy us more than our security, as their dissatisfaction is the ultimate danger: the one that threatens our survival.

The Need of Love and Belonging

This need is also divided in two:

• The need for belonging is related to the fact that we are social animal. We cannot live alone. We need to belong to a community to be able to satisfy our physiological and security needs. We then need to feel that we are members of a community (the family, the village, the company, the association, the gang, the culture, the tribe, the nation, etc.). If this need is not satisfied, we feel rejected, it deeply affects us and it can take us into deep depression that can lead to suicide.
• The need for love. It is not about being a member of a community but about meaning something to at least one person, and if possible to several people (family, friends). This need includes during childhood and later for most of us, the need for physical contact. It is well known that children who were raised without any physical contact or without affection suffer from severe psychological disorders.

The Need of Esteem

Once again it should be divided into two aspects:

• We need to be esteemed by others. If we feel that others believe we are stupid or dishonest, we suffer. This feeling is not far from the feeling of affiliation as others seek our company depending on their esteem for us and they will certainly avoid our company if they have no esteem for us.
• We also need to feel self-esteem. Sometimes we compensate the lack of esteem by others by excessive self-esteem. Most of the time, our self-esteem is related to the level of esteem that we read in other people’s eyes. Those who are considered geniuses or benefactors of

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humanity believe they failed in their lives (even when they can remain modest) and vice versa.

The lack of self-esteem or of esteem by the others can lead to deep depression.

Self-Actualization

This refers to everything that brings us to go beyond our limits: spirituality and religion, morality, problem solving, art, sport, games, for instance but also charitable action, collections, etc.

This needs also refers to everything, which is beyond usefulness: gastronomy as opposed to food, any form of luxury (clothes, jewels, residences, automobiles, boats, furniture, etc.).

It may seem paradoxical to consider these aspirations as needs. But we find them in all civilizations and across the ages. There is no civilization or social group that does not include this dimension. A culture is also characterized by the way it values and organizes these activities.

Maslow considers that it is the top of the pyramid, meaning what we look for when all our other needs are satisfied. Nevertheless these needs are found in all social groups, even those where the physiological and safety needs are less than satisfied.

This leads us to a new question: in negotiation/mediation, should we take care of all these needs in the same way?

EMOTIONAL NEEDS AND INTERESTS

For us, negotiators and mediators, these needs should be divided into two categories.

The lower two needs in the pyramid (physiological and safety) could be called “interests”. They can be satisfied with money. With money, one can by food, one or several houses etc. One can also receive medical care, put locks on the door, have the roof repaired and hire bodyguards.

On the contrary, the upper three cannot be satisfied with money. They are emotional and will be satisfied in other ways.

Among the needs, we will hence distinguish between the “interests” comprised of the two lower levels of Maslow’s pyramid and “emotional needs” comprising the three upper ones.

PYRAMID UPSIDE UP OR UPSIDE DOWN?

The idea according to which we would try to fulfil the various needs in the pyramid from the bottom to the top and that the needs would be decreasing as one climbs up the pyramid seems obvious: we first strive to feed and accommodate our family; and the budget for leisure comes last. Nevertheless there are many counter-examples.

If you think about the traditional image of a starving artist, about the ascetics, the hermits, about the sacrifices that sport champions, artists and sometimes scientists must endure, you understand that for many of us the top of the pyramid looks more important than the bottom. When we see

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someone acting against their interests, we have good reasons to think that the needs of the top of the pyramid prevail over those of the bottom.

In the case of the blocked succession, one of the heirs wants recognition more than money and before money.

For us, in each negotiation/mediation, we will face the question of what matters the most to each party.

In many cases, the top of the pyramid will be more important and will have to be taken care of before the bottom; otherwise they may block the negotiation/mediation.

THE TREATMENT OF INTERESTS AND OF EMOTIONAL NEEDS

We shall see, when we will study principled negotiation, that the treatment of interests is fairly simple. We shall discover that, on the contrary, the treatment of emotions is far more difficult.

The treatment of interests is rather easy because in most cases they can be satisfied with money. And money is easy to distribute between the parties. This is why money was invented: to be shared. It is far easier to share than real estate properties, furniture, services etc.

On the contrary, other needs can almost never be satisfied by money. Of course, being rich will help you make lots of friends and maybe have many love affairs. But these are often not the friends you wish to have because they may despise you as nouveau riche and those friendships or love affairs will evolve with the level of your bank account.

Money can nevertheless create links and possibly love by the feeling of safety that it creates, by the esteem that it evidences on the part of those who give their money to make you rich, etc.

In an attempt to resolve this difficulty the law created the concept of moral or punitive damages, which translates some emotional damages into money. This will be the case of esteem in defamation cases, of love in divorce cases, etc.

But lawyers know that the amounts allowed never repair this kind of damage. They are just the testimony of the fact that society took into account the damage suffered but they are unable to repair a broken heart, nor to heal depression. They only evidence that the judge, and, through him, society acknowledges the pain of this person; which is not nothing.

In negotiation/mediation, we can do much more as, in many cases, we can bring an appropriate answer to emotional needs.

Emotional needs call for actions. Such actions may be, for example, an apology, evidence of esteem or affection, undertaking to act in a certain way, etc.

WHY DO WE HAVE EMOTIONAL NEEDS?

It is easy to understand why we have interests. They are needs upon which our survival is depending.

This idea of survival may also partly explain the need of belonging, as we cannot survive alone. Our need of belonging is then partly a safety need to ensure our survival.

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In reality, our need of belonging goes much further and particularly when it demands the love of others.

We may wonder why we need love, why we need esteem and why we need self-development beyond the limits of usefulness.

I do not have a scientific answer to this question but only a philosophical one. This philosophical answer was brought by Jean-Paul Sartre and seems very useful for us in negotiation/mediation.

Jean-Paul Sartre explains that when we see a thing or another individual, we feel that we are seeing a complete and consistent being. We do not see ourselves the same way. We cannot see ourselves entirely; we can only see parts of our body. At the best, we can see our image in a mirror (reversed) or on a picture but we will never be able to see ourselves.

Moreover we have a reflexive consciousness, which allows us to understand the outside world and to see ourselves acting, at the same time. At this moment, as I am writing this book, I do not only see the screen of my computer. Mentally, I see myself writing this book and I see myself writing that I am writing, etc. There is no end to this reflection of my image that I see without being able to see myself. My consciousness of myself can be compared to two mirrors facing each other. They infinitely reflect each other without ever being able to join. Thus, whereas others seem to me to be “something”, I am only an attempt to be something that I shall never be.

In one of his very personal type of expressions, Jean-Paul Sartre wrote: “a human being is a being whose being is in question within his being as a project of being”.

We can understand that the need to be something is as vital as the interests (physiological and safety needs). To some extent, the survival of my body only matters to me as far as it allows me to attempt to be something. For a human being, living means an endeavour to be something as much as to physically survive.

It is important to understand that as well as our quest for identity can never be fully satisfied, our interests cannot be definitively satisfied: I can never have eaten enough for the rest of my life. I have been fed for a few hours and my quest for food will soon resume.

In other words, we are always in a dynamic process. There can never be any final satisfaction or any final frustration (except when we die).

This means that in negotiation/mediation, time plays a very important role. Indeed, when it is about a punctual dispute between people without any historical relationship and not intending to have any future relationship, this time dimension is reduced to very little. But in all other cases where, on the contrary, the parties find themselves willingly or unwillingly tied in lasting relationships (neighbourhood, marriage, family, competition, employment, etc.), the repetition of needs will be an unavoidable fact. Hence, the present problems may find their origin long ago and the solution will only be acceptable in as far as it will seem able to be sustainable.

But let’s go back to the question of why we have emotional needs.

In fact, the three upper levels of Maslow’s pyramid can be seen as three forms of our quest for identity.

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At the top level, we try to create an identity for ourselves that will be free from immediate contingencies. Through religion and spirituality, I try to live in another dimension, which would allow me to escape the infernal chain of reflexivity. Gratuitous efforts in sports allow one to escape the world of usefulness in the sense of the lower two levels of the pyramid and to extract oneself for a moment from its pressure. The same applies to art, which in addition puts us in the position of a creator, which means that it give us the illusion to not only be the object of our consciousness but to have finally become the subject who is because he creates.

In reality, these needs of self-actualization are probably our strongest needs. Though we expressly dedicate little time to them, we shall see that they are at stake in each of our communications with others, in each word we pronounce or write, in each intonation of our voice, in each posture we take. They give us the necessary energy to make the necessary decisions to give our bodies the means to survive. We shall soon show that science reaches the same conclusions.

This explains that emotional needs are primordial for the parties; so much that they defend them, even against their material interests.

The answer to our original question, “Why do we have emotional needs?” the good answer certainly is: “Because being human, is to have emotional needs”. Don’t we say about those who don’t seem to feel emotions that they are inhuman?

For us as negotiators/mediators, emotions should take the first place in our preoccupations.

NEEDS AND DESIRES

Our needs want to be satisfied. Most of the time, there are different ways to satisfy them:

• If I am thirsty, I can desire all sorts of drinks: waters, juices, soda, beer, wine etc.
• If a competing business is bothering you on the market, you may desire:
• To increase your capital to be stronger on the market;
• Buy a third company in order to become more powerful than your competitor;
• Develop new products against which they will not be able to compete;
• Or purchase the competitor.

We could give multiple examples. These various manners to satisfy one single need correspond to more or less interchangeable desires.

This concept of desires, different from needs, is most important in negotiation/mediation. If a need can be satisfied through several desires, this opens many possibilities to avoid or resolve the dispute. If at least one party changes its desire, the dispute is likely to disappear.

We often see these types of changes in desires. We will address them when we describe creative solutions: cooperation and win-win (see page…).

For emotional needs, the change in desires is often spectacular. Where one was asking for considerable amounts of money for moral damage suffered, a few words of apology or compassion may be enough to satisfy the need.

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Emotions in Negotiation/Mediation

In the Western world, we have been raised under an 18th-century philosophy that says reason is opposed to passions. Passions are evil; reason is good. We must make reasonable choices.

This philosophy is totally wrong. The expression of reasonable choices is a conundrum.

This was revealed by neurosciences.

NO INFORMATION WITHOUT EMOTION

The idea of separating emotions and reason is a wrong one.

Neurosciences (the sciences of the brain) taught us that when information reaches our brain through our five senses, the nerve bringing this information splits in two.

One branch will go to a gland called amygdala. This gland, which belongs to the primary structures of our brain in the evolution of species, dispatches a positive or negative signal, i.e. a positive or negative emotion, when the information reaches it.

The other branch goes to the neo-cortex, the most recent zone in the evolution. This zone allows us to analyze the information in a rational and reflexive manner.

Thus any information is perceived emotionally at the same time as rationally. Imagining information without emotion is just impossible.

EMOTIONS COME FIRST

Emotions reach the amygdala a fraction of a second before reaching the neo-cortex and the time for treatment of the information in the amygdala is shorter than in the neo-cortex. In other words, chronologically, we like or dislike the information we receive before we consciously understand it. Think of a visit to a museum. Your eyes discover a painting you have never seen. You like it or dislike it before having been able to analyze what it represents and how it is structured and painted.

NO DECISION WITHOUT EMOTION

After a trauma, it may happen that the amygdala does not work anymore. People who are affected by this experience, become much more intelligent. Their intelligence seems to have gotten rid of their emotions. As a consequence they acquire a much higher ability to analyze and calculate than before.

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But, at the same time, these people lose their ability to make choices. You can present them something very attractive and something disgusting. They will analyze both possibilities but will be unable to make a choice.

For us negotiators/mediators, this means that the choice (and specifically the choice of accepting a solution) is fundamentally emotional.

This is easy to understand. If you go to the restaurant, you do not necessarily read the whole menu and you do not get all the information to make a “rational choice”. You do not even try to get this information (all the ingredients, the recipe, the number of calories etc.). You ask yourself if you feel like meat or fish, something cold or something hot and you will often make very “unreasonable choices” but much more pleasant.

As a matter of fact, in negotiation/mediation, a solution will be accepted if it pleases the parties and rarely because it seems reasonable.¹

IF WE WERE AUTOMOBILES

If we were automobiles, emotions would be the gas and the engine, i.e. what give energy and movement.

What is usually called “reason” would be the brakes, the accelerator and the steering wheel, i.e. what allows one to temper, accelerate, amplify and direct the movement.

Whatever action you may exercise with the brakes, the accelerator or the steering wheel, you will not move and you will go nowhere, if you have no gas and engine. Similarly your reason will lead you nowhere without emotions.

If, on the other hand, the engine filled with gas makes the automobile move without any control by the brakes, the accelerator and the steering wheel, the end of the ride will probably be tragic.

As a consequence of this, beautiful reasoning will be of little efficiency. You must first make people feel like agreeing. You must create positive emotion, which will then be amplified, tempered and guided by reason. Such is the main task of the negotiator/mediator.

EMOTIONS ARE CONTAGIOUS

Laugh and everybody will laugh, even if they do not know why. Sigh and everybody will sigh, even if they do not know why. Frown and everybody will frown, even if they do not realize they are frowning.

Our emotions create an emotional field of the same type all around us. Your emotion becomes their emotion.

Once you know that, you can do one of two things:

• Create a happy atmosphere right at the beginning of the process, by showing positive emotions. Except for particular circumstances, people around you will feel positive emotions.
• Try to resist the unpleasant atmosphere created by the other party’s negative emotions.

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If a party enters the room and says: “OK, let’s get rid of this question quickly. We have spent enough time on this stupid problem you created. I am certainly neither ready to spend more time on this topic nor to lose money. So what do you want?”, you immediately feel like telling him that you feel exactly the same way, that they are creating the problem, that your time is at least as precious as theirs, etc.

But if you realize that what he says makes no sense and that you are about to become the victim of the contagion of his emotions, all of a sudden, you feel like smiling and tell him: “Welcome. It’s a pleasure to see you again. You’re right. I too wish that we will be able to settle this matter quickly and go for a drink. May I suggest that we start with…”. You are the one who created the positive atmosphere of the discussion as well as its agenda.

Your understanding of the contagious nature of emotions, allows you to control the general atmosphere of the negotiation/mediation.

We will understand more when we discuss power in negotiation/mediation.

EXCHANGING POSITIVE EMOTION

You certainly need to create positive emotions for others but in order to obtain an agreement between you and the other party you need to feel positive emotions yourself. Otherwise you will not sign.

You must feel positive emotions when giving positive emotions and give some to receive the same. Mediation is the same but there is a neutral in between and he needs to feel good too.

This idea is very simple. But it is totally contrary to our usual behaviour. We tend to approach negotiation as a confrontation. We want to have the other one give in. This cannot work.

Imagine a young man in love who would try to seduce the one he loves by saying: “I love you and I wish you to love me and, by the way, if you do not want to love me, I will beat you”. I do not think that I am exaggerating in saying that the young man has little chance to obtain the love of this beloved. It is almost certain that he will be hated. But this is how we often approach our negotiation/mediations and particularly when it is about the resolution of a dispute. We start by threatening; this immediately creates negative emotions and makes it very difficult to find an agreement. To resolve the conflict, one must, to the contrary, create positive emotions.

WHERE DO OUR EMOTIONS COME FROM?

If our task as negotiators/mediators is to create positive emotions and to limit negative emotions, we need to know where emotions come from.

To this effect let me suggest that you do a test: show this picture (or any other one) to several people around you and ask them to tell you in a word or a sentence what emotion they feel when they watch it.

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You will certainly get several different answers. You do it again with different images, with texts or songs; you will still get different answers.

Which conclusion can we draw from this test? This shows emotions do not come from the image, the text or the song. It comes from us; it comes from the subject and not from the object.

The various emotions reflect the differences that exist between us. Here is an amazing result. When I show this picture in northern countries, people often see the blue sky and think of their summer vacation. They like the picture. When I show it in southern countries, people often think of a cold weather because the sky is too pale for them. They have an unpleasant feeling.

Emotions are a modality of our identity, of our project of being. When we express our emotion, we tell people what we want to be.

THE THREE LEVELS OF INFORMATION

Any information is received on three levels:

• The information per se, which is to say the information which can be translated into 0s and 1s to be introduced into my computer;
• Emotions;
• Identity.

In negotiation/mediation, information is mainly expressed with words spoken or written (memos).

Emotions will be expressed by our tone of voice and the voluntary movements (hands, standing up, sitting down, etc.), which will accompany our words. Depending on our tone of voice, we can pronounce the same sentence to give the time with impatience, tiredness, joy, panic, etc.

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My identity, what I want to say about me, which may not be reflected in my tone of voice and my voluntary gestures, will be expressed by my unconscious body language: I stand or sit, straight or leaning, the way I touch my body, the intensity of my sight, etc.

Perception on the identity level is revealed by expressions such as: “Is this your last price? You must think I am stupid!” One speaks of the price and the other of his identity.

I once was having lunch with a group of participants in my trainings. A lady was facing me. I was unable to guess her age. She was more than 35 and less than 60 but I could not guess her age between these two extremes. We were speaking about our children. She had three and when she started describing her 12-year-old son, it seemed to me that he had a typical behaviour of and older child. “I imagine he is the eldest” I said. “Thank you very much” she replied.

I was talking about children’s psychology. She heard me speaking about her age. In fact, this child was her last one and she was too old to have two more after him? She was thinking that I believed she was younger than she really was. She was flattered. She had heard my purely technical remark on an identity level.

How Do We Express the Three Levels of Communication?

The three levels of communication are expressed through three parts of our bodies:

• “Pure” information concerns our head.
• Emotions are felt in our chest: short or deep breath, quicker or slower heart beats.
• Identity is felt in the belly and particularly in its lower part (Think of how you feel before an exam or a public appearance or any other event where your identity is at stake: there has to be a bathroom nearby).

If you are familiar with tantrism, you understand that this matches the various chakras. You will also have rightly concluded that energy comes from identity coming out of the first chakra.

THE BOUNCES OF IDENTITY

So far we mainly discussed identity as a source of emotions appearing as a reaction to what is happening in the negotiation/mediation.

In fact identity impregnates our behaviour at any time. Our effort to be something cannot be suspended. It appears in anything we do, say think and feel.

We listen with identity but we also speak with identity, even when we are not reacting to something one would have said.

Obviously, identity will not only be expressed by our body language. Our clothes, our car, the choice of our residence, the choice of our vocabulary (refined, technical, colloquial, etc.), our profession, our type of distractions are others means to show what we intend to be.

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The Importance of Speaking to the Identity of the Other Party

It is obviously important for us to know what is the most important level of communication. We must know if we should insist on the logical aspect of things with words or if we should try to better understand the identity of the other party in order to create positive emotions in him and bring it to agree to a solution.

We only have an indirect answer to this question but I think it is valid.

A well-known American psychologist, Albert Mehrabian, wondered how far communication was carried through words, intonations and body language.

The results he obtained are surprising:

• Words: 7%
• Intonations 38%
• Body language 55%

Mehrabian makes it clear that these observations are only valid when people talk about their emotions. We will see that in negotiation/mediation we mainly speak about our emotions. As a consequence, the results of the research of this psychologist are somewhat meaningful for us.

As far as we are concerned we can translate Mehrabian equation in the following terms:

• Information: 7%
• Emotion: 38%
• Identity: 55%

This means that, when I speak about the subject matter of the negotiation/mediation, my message is only 7% dedicated to it; for 38% it is intended to make you understand my emotion; and for 55% I am talking about myself, i.e. about the meaning of this object for my identity.

In other words, 55% of my speech is intended to give you the image of me I want you to have. I am trying to convince you this I am the smiling hero, or an intellectual, or an inflexible man, etc.

When I say: “This price is too high”, of course, I am giving this information but my intonation will also say if we are far apart or if a small adjustment will be enough. My body language will say if I feel like a poor man who cannot afford this operation or as an experienced businessman who only buys at the best price. If my counterpart knows how to deeply listen to me and understand the three levels of my communication, he will know how to deal with me. He will particularly know how to create positive emotions in me, which will make me feel like keeping on negotiating with him.

Some have challenged Mehrabian figures but it remains, even for the most sceptical, that body language and intonations prevail on words.

In negotiation/mediation, this is a very important remark. It shows that in order to bring the other party to agree, you must create positive emotions in him and, to this effect, you must speak to his identity. This implies three consequences:

• Reasoning and logic will never be enough to convince anyone. They belong to the level of information. They have no emotional potential

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because they do not touch identity. Reasoning and logic are the same for anybody. They do not say anything about the person who is speaking. “An equation is not an opinion”.

• There is something unique in the other person’s identity. In order to speak to his or her unique identity, you must first have discovered it. Your first obligation will then be to listen to the other one in depth in order to discover the identity through the blurred messages, which he or she sends through information.
• But as Maslow’s pyramid showed, there are common points in our identities: we all have the same fundamental needs. As a consequence, if we adopt behaviours, which allows the fulfilment of the fundamental emotional needs you will surely create positive emotion with the other party.

We will then have to study methods to listen in depth and to understand the identity of the other party, ways to speak to his or her unique identity as well as methods to create positive emotions based on anyone’s fundamental emotional needs.

IDENTITY AND PROJECT OF BEING

Putting together the concepts of needs (Maslow), of project of being (Sartre) and of identity, can we reach interesting conclusions for negotiators/mediators?

The universal existence of needs is just another description of the incompletion revealed by Sartre. It is because we are neither physical nor essentially complete that we feel these needs and that we try to remedy these weaknesses.

What Sartre calls a project of being is just a strategy to try and achieve this result. A politician will try to feel being through power, an artist and an entrepreneur by creation, a monk by contemplation and a champion by going beyond his limits, etc.

My identity comprises my intangible data: my sex, my age, my physical abilities and inabilities, my history, my education and my project of being.

We should not believe that identity and project are permanent. Within the limits of the invariable data, the project of being and the identity will vary. In reality, the personality of your counterpart and the extent of your desire, and possibly your refusal, of affiliation with him and esteem of him will determine your project of being with him. You do not feel the same person and you do not behave the same way with your boss and with the person you just fell in love with!

In negotiation/mediation, this project is what Fisher and Shapiro and transactional analysis call a role. In negotiation and everywhere else in life we play roles, which depend on the one hand of our invariable data and of our global project of being and on the other hand, of our counterpart. The same man who, in front of his boss, will play the perfect employee, observant of his instructions and efficient in their implementation, will play the dominant male at home.

We can then create positive emotions with the other party by responding in accordance with the role he wishes to play with us.

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INFORMATION, EMOTION, PERCEPTION, JUDGMENT

Because information and emotions are linked, we need a word to define this whole information/emotion complex. I believe that this is exactly the meaning of the word “perception”.

Our different perceptions of the same object (information) result from the fact that we feel different emotions because our identities are different.

This concept is essential in negotiation/mediation. We simply cannot work on pure information.² We can only work on perceptions.

We expect to exchange information so that the other party will receive the information we are trying to give. But reality is different.

Actually information will be sent accompanied by emotion, which may be perceived by the other party if we are in an oral dialogue,³ and it will always be received by the listener with another emotion of his own. Thus the information received will always be different from the information sent and it cannot be otherwise.

What we believe to be an exchange of information is in fact a confrontation of perceptions. It would be vain to expect that two persons may share the same perceptions as they have different identities. This would imply the denial of at least one of the parties and would create negative emotions.

All we can reasonably expect is to reconcile the perceptions. We cannot share someone else’s perception. But we can sometimes understand and accept someone else’s perception. The reconciliation will reside in the acceptation of a different perception and in the work done to understand it.

This idea is in total contradiction with what we are used to think. We must first have deeply understood it to be able to use it in tense situations.

We will later discover techniques to this effect.

PERCEPTIONS AND JUDGEMENTS

Because the emotion, which is comprised in the perception, is either positive or negative, these perceptions are equivalent to judgements/ opinions. It is most important in negotiation/mediation and in life in general, to differentiate in our speech as well as in our thoughts and words, what is pure fact and what is opinion and/or judgement.

“As a matter of fact, you are always late”, is not a matter of fact. It is a judgement. The word “always” makes the difference. If “always” was right, it would mean that this person has never been on time in his or her life. You cannot know if it is true or not because you have not been with this person since birth. He may have occasionally been on time. This is obviously a generalization. You can evidence numerous times when he was late but it will always be impossible to evidence that he was always late.

The distinction between a fact and a judgement resides in the possibility or

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not by nature to evidence what is said. A fact can be provable, in nature, though you do not have the proof. “ He missed his train because he was late.” Even if you do not have a proof, this is provable. You would have needed a witness of a camera with a clock. Because it is provable, it is a fact.

“This room is a mess!” is a judgement because the concept of order and disorder is relative. What is organized for one is total disorder for someone more demanding. The position of each object can be proven. The notion of order or disorder depends on the person who discovers the room.

In reality, when we say that a room is a mess, we are expressing an emotion. In essence, it is not provable.

Our emotion is a judgement on the information received. Most of our interactions with our environment are made through positive or negative judgements. It is very difficult for us to limit ourselves to facts. Our initial perception is a judgement, which we will then tend to justify by “reasonable” arguments. It is only by a voluntary and later effort that we will try to remove the emotion from the perception to try and obtain the quasi-pure fact.

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The Various Emotions in Negotiation/Mediation

Many authors tried to give a description and a classification of emotions. Their conclusions are extremely different and describe various numbers of emotions from 10 to a thousand. Their works do not seem usable to me. I even doubt that they can be useful for us as emotions ultimately depend on the unique identity of each of the participants in the negotiation/mediation.

Nevertheless I believe that distinctions should be made, which will affect the treatment of emotions in negotiation/mediation.

OCCASIONAL AND PERSISTENT EMOTIONS

Occasional Emotions

In the course of a negotiation/mediation, there will be periods of tension, relaxation, possibly laughter and anger. I call these emotions “occasional” when they are due to an event in the negotiation/mediation.

For instance, one of the participants in the negotiation/mediation arrives very late. The other one is already tense. If the late one does not apologize immediately upon arrival, it is likely that the tension of the other one will soon become angry and aggressive. The delay will be felt at the identity level as disrespect or contempt.

These occasional emotions can rather easily disappear. The late one will only have to apologize and explain the reason for the delay and the tension will decrease and communication will be established on a healthier basis.

Psychological studies demonstrate that we move quickly from positive to negative emotions but that is more difficult and slower to move from negative to positive.

In other words, if, at the beginning of the negotiation/mediation, you try to create a positive atmosphere, you will need some time. It will not be enough to show a nice smile to have the other trust you. It will take you time and a succession of actions to create positive emotion before you can create the climate of trust that you need.

And when you will have succeeded, one word may ruin trust in a few seconds.

When you read this, you may think that it is obvious.

When you are in negotiation/mediation, it is difficult to admit because you would like things to be different. When the atmosphere is tense, you want to change it and you try to show that you are ready to make an effort. You hope that your first move will make them understand. You hope that with a smile and something such as: “We aren’t going to fall out with each other for that…”, the atmosphere will clear up and that your partner will also

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change his tone of voice. But this is generally not what happens. You will need to evidence your willingness to resolve the matter several times and in a manner that the other is expecting, in order to convince him that he can now negotiate with you with confidence.

You will also have a hard time admitting that, though so far everything was going well in the negotiation/mediation, the other will have suddenly changed his behaviour after you had taken a phone call on your mobile and thus left the negotiation/mediation for 10 minutes.

Of course the situation will be all the more difficult to restore if you initially started from a situation of defiance, which you had successfully improved and if this phone call confirmed the reasons for defiance. If, on the contrary, you were negotiating with an old friend in a friendly atmosphere, he will be nervous, he will make it clear but you will be able to quickly return to the original situation.

Finally, occasional emotions can be treated within the negotiation/mediation in reasonably little time, taking into consideration the going from positive to negative emotions is quicker than the opposite.

Emotions are permanently changing by essence.

Did you notice that, since we have been speaking about emotions, we always speak about going from one emotion to another? This is not random. Emotion is not a permanent state. You would consider someone as mentally ill who would permanently be smiling, laughing, sad or angry.

Emotions only appear by difference. We feel cold when we move from a high temperature to a lower one and vice versa, even if the temperature you are moving into is the same in both cases. The same outdoor temperature may seem warm in the winter and cool in the summer.

Moreover, if you try to make a positive emotion permanent, you will obtain the opposite result. If you love chocolate cake and if you are only fed chocolate cake, sooner or later you will not be able to stand chocolate cake anymore and will feel disgusted by it. At least for a long moment… Until the deprivation of chocolate cake will make you desire it again.

This remark, initially formulated by Buddha, could lead you into philosophical considerations on the concept of happiness but such is not our purpose.

In order to negotiate and mediate efficiently, we must understand that we will only create positive or negative emotions by truly perceptible changes. In other words, there is not one behavioural recipe to create positive emotion. The suit and tie and the obsequious repeated expressions of the second-hand car dealer make us feel nervous more than they invite us to buy one of his cars. Whatever his attire and his expressions may be, you will start to feel positive when something pleasant and unexpected will happen: he will have offered your pregnant wife to try the seats to make sure she feels well in them, he will have offered you a cup of coffee, etc.

Persistent Emotions

Some emotions do not come from this negotiation/mediation. They reappear following a past experience, which can be linked to the personality of the other negotiator, to the subject matter of the negotiation/mediation

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or be independent from any element of the present negotiation/mediation and coming from different experiences. Examples:

• Persistent emotions coming from the personalities of the negotiators: you must discuss the succession of your parents with your brother who always made you feel stupid when you were children. This negotiation/mediation is an occasion for you to take your revenge.
• Persistent emotions linked to the subject matter of the negotiation/mediation: You are in charge of negotiating the purchase of a company against which you went to court in the past. All your feelings toward this company are negative, even if the facts, which were at the origin of this litigation, do not impact the need to purchase the company nor the conditions of the sale.
• Persistent emotions with no link to the negotiation/mediation: last time you purchased a company you had to file bankruptcy three months later. This was a very painful experience for you and you feel terrible in this new negotiation/mediation, even if nothing makes you fear insolvency.

It is particularly difficult to work on persistent emotions for a series of reasons.

They are often very difficult to discover as the one who feels them cannot or does not want to justify them. You do not want to admit that your negative behaviour is a consequence of the court case in the past because you know that this is not legitimate. You are ashamed to have bought a company in a bad financial situation in the past without noticing, and you are certainly not ready to admit it. In the negotiation/mediation with your brother, you may not be conscious that you are using this opportunity to take revenge.

It is generally not possible to question their cause in order to reach a more pacified discussion. The trial did take place, the recently purchased company did file bankruptcy and in my childhood I did feel that my brother took me for an idiot. These are matters of fact, which cannot be changed.

In the best case, we can try to modify their present perception of the facts. For instance, your brother may either explain his behaviour or apologize for it and then want to come back to more harmonious relationship. On the contrary, the managers of the company that you consider purchasing, cannot do anything about the emotions that you felt following the bankruptcy of your previous acquisition. All they can do is give you assurances, show you figures etc., and your lack of trust may bring you to unreasonable demands, which will endanger your acquisition. Even worse, if they invite you to a good dinner hoping to create positive emotions with you, this may make you even less confidant, thinking that they are used to spending money unnecessarily.

INDIVIDUAL, COLLECTIVE OR ORGANIZATIONAL EMOTIONS

One can easily understand what an individual emotion is. We do not need to spend time on this.

I call “organizational emotions” emotions that result from the support or violation of the values of an organization. Any organization (family, company, association, municipality, public organization, school, gang of

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criminals, terrorist organization, religious congregation, profession etc.) internally creates, consciously or unconsciously, a system of values. Today companies like to show pledges of values, which must be shared by their members and which create the identity of the company throughout its many activities in many countries.

Violations of the values of an organization result in the rejection of its members who committed them. They generate extremely negative emotions toward third parties who challenge them. This may make some negotiation/mediation particularly difficult.

The public sometimes misunderstands the internal values of some professions. Negotiations between the members of a particular profession and a consumer who does not know or does not share those values, may generate organizational emotions.

For instance, insurance is often sold as an almost compassionate support in case of problems. Advertisements may almost bring you to believe that insurance can avoid the damage. Nevertheless the internal values of insurance companies are truly financial; their cynicism is only tempered by commercial considerations. When the insured party will express its real expectations after the damage has occurred, the insurer will often be shocked: “Who do you think we are?”. The insurer will truly believe that this party is trying to take advantage of him.

I personally experienced this phenomenon. As a lawyer, I was representing a metallurgy company. In those times and to a lesser extent today, members of this profession consider themselves a noble people, men of honour whose word deserves to be trusted and who respect their partners. This company, which was very prestigious in its business, had been defrauded. This made it lose considerable amounts of money. Immediately after that the facts were discovered, the guilty parties asked for negotiation. They did it through me and I asked my client for instructions. The answer was clear: “We do not negotiate with such people”. As I drew my client’s attention to the difficulty, the length of time and the cost of the proceedings and suggested to at least listen to what would be said. It might have generated serious savings, the answer of the managers of the company was very clear once again: “This fraud has already severely damaged our image. Sitting at the same table as these people would be against the essential values of this company since its foundation. This is far more important than any money we could recover or avoid spending through negotiation.”

It is extraordinarily difficult to work on these collective emotions because there is no one with whom we can discuss them. Most of the time, even the highest managers of the organization are bound by these values and cannot go against them without taking major personal risks.

Working on organizational emotions, which means on the values that create them, will require a lot of time and will generally involve a lot of people within the organization and around it. In simple commercial negotiation, this is purely and simply impossible. On the contrary, this can be accomplished in labour political and diplomatic negotiation, which take place over a long period of time and have long-lasting consequences.

At the date when I am writing this book, major conflicts are taking place in Arab countries after what was called “the Arab Spring”. Major tensions are

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also occurring in the countries of ex-USSR. All this shows the difficulty in evolving from one set of values to another and the extreme complexity of negotiations on such matters.

In fact, collective emotions are not necessarily monolithic. Within an organization, there may be different interest groups. It is not uncommon to see the legal, financial, commercial and technical departments have very different reactions to the same situation. A negotiation/mediation within a party’s team to a negotiation/mediation may be necessary.

The various emotions, which appear within a team or an organization, may interact in different manners.

Possible Interactions

In a negotiation/mediation, there may be contradictions between individual and collective emotions. The negotiator may feel sympathy, which would invite him to accept the other party’s claim whereas the values of the company demand that it is rejected or vice versa.

I remember a mediation where a company was complaining about the services of a software supplier and was claiming damages. It was represented by two computer specialists, the commercial manager (because this software was intended to support the commercial activities of the company), the corporate counsel, the CFO and two attorneys. After several hours of negotiation the supplier offered, instead of paying damages, to install his new software, which would resolve the problems at an unusual discount.

I could see the eyes of the computer specialists and the commercial manager start to sparkle with the excitement at the idea of being able to use this new programme, which they already knew and very much wanted to use.

The financial officer spoke and told the supplier: “Your proposal may be a good one. Judging by the reactions of our computer specialists and of the commercial manager, it must be the good one. But tomorrow morning there is a meeting of the board and I must report on this mediation. If I go there with damages, I will be congratulated. If I tell them that the mediation was unsuccessful, there will not be a problem because the situation will remain the same as this morning. But if I tell them that I should give you money, I will be unemployed tomorrow afternoon.” He took his briefcase and left the room.

In this case, there were obviously several perceptions of the interests and values of the company:

• The computer people and the commercial manager mainly saw the day-to-day work of the computer system and commercial department. According to them, this was what mattered and the goal of the mediation was to resolve this problem.
• From the financial manager’s point of view, the essential value was to protect the financial interest of the company. This could be done through damages or possibly by spending money on a new computer system, provided this would stop the losses due to malfunctioning and would increase the profitability of the business.

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• From the board’s point of view, and its members who had obviously not attended the mediation, the value was about the amount of money the company would receive as damages.

The financial manager was then conflicted between the instructions he had received and his understanding of the interest of the company. By serving the interests of the company, he was endangering his job. It is no surprise that he preferred his job. On that day…

Two months later, I called one of the lawyers to find out what finally happened. In fact the solution of replacing the software programme with a large discount had been adopted. The two months had been necessary to bring the values of the board in line with the value of its operational departments.

When an organization is represented by several persons in a negotiation/mediation, it often happens that the members of the team may try to outbid each other on the values of the organization. Each member wants to prove to the others and possibly to the management that he is more zealous than the others. This may go as far as endangering the interests of the company by preventing any concession or by not taking into account the interests of the other party.

Because of this, a number of mediators avoid separate meetings because they do not want to let the members of a team harden their positions while they are having a separate meeting with the other team.

This phenomenon of overbidding his well known in revolutions where the radicals often eventually prevail by challenging in the beliefs of the moderates in the values of the revolution. This was the case in the French, Bolshevik, Iranian revolutions and so many others as well.

Only careful preparation of the negotiation/mediation by both parties can avoid this phenomenon.

EMOTIONS AND VALUES

When I started discussing collective emotions, I referred to values. It is time to explain this very important notion in negotiation/mediation.

Collective emotions arise from non-acknowledgement by the other party of one or several values, which are shared by the members of this group. As a matter of fact, they are the identity of the group.

Values in a nation are formed by language, some musical tradition, maybe warriors’ tradition, history with its ups and downs, political rules, traditional costumes, etc.

Within a company, an association or an administration, the core value will generally be the product or the service to which this organization is dedicated. Other values may be added to this: technology, reliability, quality of customer service, tradition, ecology, etc.

Those values can also include solidarity within the organization (very important in the army), of respectful relationships between managers and staff.

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This identification with the value of a company was perfectly illustrated by the Suez group (then called GDF Suez and later Engie), the motto of which was, “We are Suez”. This sentence implied many values: the pride to belong to a major group, its international character derived both from its name referring to the construction of the Suez Canal and from the fact that the sentence was written in English, though the group is French. The reference to the Suez Canal also implied that the company was old, which suggested that it was reliable. It also suggested some solidarity between its members, the prevalence of the group’s interests over those of each of its subsidiaries, etc.

Failing such values, the group is only a collection of individuals. The military make a large usage of these identification systems through mottos, flags, various sign of recognition, chants etc. to mobilize individuals around a common adventure by creating an identity through these values.

For each of the individuals, adhering to these values grants recognition of oneself and a member of the group and thus satisfies the need of affiliation and possibly of esteem.

Common values then fulfil two functions:

• One the one hand, they create the identity of the group;
• On the other hand, they satisfy the need of affiliation of each of the members.

When these values are challenged in negotiation/mediation by a third party, participants then feel attacked in two ways: as individuals (they are threatened to lose their affiliation to the group) and as members of the group (they feel a threat on the group). For them, both ways feel like an attack on their identity.

Trying to distinguish one from the other in a sentence such as: “You are a great guy but you come from a country of barbarians!” is a risky endeavour. Your counterpart will probably feel something close to an amputation. You are inviting him to break his affiliation, an essential component of his identity.

This means that collective emotions may play an important role in individual negotiations. Belonging to a group and adhering to its values are essential components of an individual’s personality, even when he is outside his group. In business relationship, you would not allow your business partner to challenge your religious beliefs and, on the contrary, even in your religious group you would not accept that your company be challenged.

Some values are not collective. For instance, if you like country life or 17th-century painting, these are individual choices, which would usually not result from your belonging to a group. Some value may arise from your personal story or your physical identity. People who survived a war in their childhood often value peace more than others. I imagine that deaf people like music less than blind people who like painting less than them…

But the affirmation of my values in front of others will often link me in their eyes to some archetypes and to some more or less formal groups. If you proclaim your love of classical music, you will often be perceived as proclaiming your belonging to the upper class. It is quite significant that various sports are mainly practiced in some social classes.

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VALUES AND VALORIZATION

Why is it that these identification systems, these injunctions of behaviours are considered as values?

For someone who adheres to these values, they are good, which implies that others are not as good, even that they may be evil. There is then an evaluation of these identification criteria as positive or negative: ours are good by essence and others are not.

The same criteria will allow us to evaluate the world around us.

You want to buy a flat. You see one, which you like and you wonder: “How much is it worth?” Your question can have two meanings:

• “What is the value of this apartment? (this implies that you think that an apartment has an intrinsic value);
• “How much is the seller asking for it?”

Has a flat an intrinsic value? If you ask an expert, what is he going to say? He will give the average of the price of recent transactions on comparable flats. This figure can certainly be discussed: two apartments are never identical, the transactions are not always recent and the information of the expert is often limited to the location, the surface and the price. He does not always know the condition it is in and other criteria such as the noise, the light, the view, the heating, etc. it is not surprising that different expert opinions often reach different values.

Moreover, these statistics are in no way compelling. The fact that others accept to pay this price does not mean that you should pay the same price and it does not preclude you from paying a higher price if you can and really want this apartment. The only interest of these statistics is to show that below this price, the seller may hope to find a better price from someone else. If you want to make an offer below this price, you will have to motivate it (the market evolved, you are ready to buy immediately and unconditionally, etc.) and hope that the seller is in enough of a hurry to give in.

As a matter of fact, the value of this apartment for you depends on your personal needs and system of values:

• Is it big enough for your family?
• How much money can you spend?
• Is it noisy and do you want it to be quiet?
• Is it easy to go to work from there?
• Is it in an area with people of a social class that is acceptable to you?
• Which image of you will it give to your family and friends? Etc.

In other words, in negotiation/mediation, any evaluation by an individual eventually results from his needs. These needs are often sublimated as values, which means that these personal needs are expressed in such a way that they can be shared and possibly become universal.

When I say: “I don’t like noise and I want light”, I only describe my need. When I say that I wish to live in a quiet and airy area, I express the same need but in terms of values that I offer to share with others: those who live in the same area. In this second formulation, I am also speaking about my possible affiliation with my potential neighbours. When you read this

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sentence, you already imagine the type of people one meets in this type of location and those you will meet in other locations, which do not have these characteristics.

In other words, the evaluation of an object in negotiation will depend in large part on the identity of the parties.

The use of objective criteria of evaluation, as Fisher and Ury suggest, is mere convention. In particular, the expert opinion is an efficient way to escape from the confrontation of positions but it is only acceptable as far as the parties anticipate that the expert will come up with a value, which is compatible with their needs.

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The Emotional Journey Toward an Agreement

The Stages of Grief

Elisabeth Kübler Ross was a Swiss-born American psychiatrist who dedicated her life to assist terminally ill people and their families. She described the emotional journey of a person who has just learned of his or her close death from the initial shock to the final acceptance and called this model: “the stages of grief”.

Someone, who is confronted to another kind of termination situation, may also experience this journey: loss of a job, restructuring of a business, termination of a relationship, etc. “The stages of grief” then became a typical tool in coaching and change management. The coach will help people affected by a quick and unexpected event to go through this emotional journey in order to positively face the new situation.

In many cases, the negotiation/mediation will follow this process. It may do so spontaneously. One of the parties may attempt to lead it if it is useful or necessary. The mediator should use it as one of his/her favourite tools each time one of the parties experiences the dispute or its cause as an intolerable loss.

This is designed as a curved line in the shape of a V, which starts from the left upper point and moves through stages, which are emotional states, until it reaches the lower end and then climbs toward serenity, which for us is the resolution of the dispute. Let’s describe these different stages.

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SHOCK AND STUPEFACTION

The announcement of the loss (momentary death, loss of job, new position, termination of contract, non-delivery, adultery, termination of relationship, wrong contractual performance, etc.) is of course a shock. You were living and had organized your life according to certain expectations. All of a sudden, the structure of your life collapses and you generally do not have an alternative. You are unable to accept the information and to react to it.

DENIAL

Because this new state of things is unacceptable and impossible to understand, one is tempted to deny it: “He is not gone. He is on a trip. He needed a change”, “I am not going to be fired. I am going to explain to them that I am indispensable and they will change their minds.”

Even without finding a good reason for denial and after these reason have been proven wrong, one may remain in denial and keep living as if nothing had happened, simply because one does not know how to react to the new situation.

This emotional status may remain for a very long time. We all know abandoned lovers or spouses who live many years as if the other one could come back any time. Even if they must confront another reality (they had to move, they live in different financial conditions, the divorce may even have taken place), they mentally remain in the previous situation.

Some are able to create strategies to make this denial last. It is the usual case of people who, after a satisfying career, make a mistake at the end of this career, which challenges their image in their own eyes, usually more than in other people’s eyes. It is unacceptable because it is too late in their lives to be able to re-establish themselves in their previous status. It often happens that they start litigation, which allows them to deny the situation, to claim that others are responsible for it and to claim compensation to re-establish them in their previous status. If they lose, they will use all possible procedural recourse and will then start new proceedings all their lives in order to never have to accept the new situation.

Even worse, if they win, the compensation will rarely end up re-establishing them in their previous status and will then challenge the decision made, to try and win more and to keep the litigation going.

Actually no decision is able to satisfy them because any decision will acknowledge the new situation and the need to try and remedy it. One then needs to keep on litigating to keep on denying, which is the only acceptable position.

ANGER

When denial collapses, anger takes over: “He has to be a bastard to put me in such a situation. How can he do this to me? I’ll have my revenge and he is going to suffer.”

Most of the time, this anger is at the origin of litigation. At this stage, we go to the lawyer, as we want revenge. We tell him: “It will cost what it will cost and it will last as long as necessary but I want him to suffer!”

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Some authors believe that anger has to be expressed to allow us to move to the following stages as anger is blocking. Nothing can be built on anger and as long as anger remains, there will not be any move forward.

When we discuss mediation, we shall see that some mediators create opportunities for anger to be expressed, to then be able to speak “reasonably”.

Anger mobilizes a lot of emotional energy but also requires a lot of time and money when we go to court or arbitration. It is thus exhausting. It is exhausting and therefore often short in duration. After a few months, lawyers find their clients in a very different state of mind than on the first meeting. They are becoming impatient and they start to find litigation expensive, even if they previously said: “It will cost what it will cost and it will last as long as necessary but I want him to suffer!”

Depression and Fear

When anger dies, we become overwhelmed by depression. We have enacted the change and recognized that anger was not helping. Our energy has been exhausted by anger. We have no energy anymore and we are confronted with our loss, having no energy or means to regroup.

Therefore, we are scared by the future either in concrete terms “How am I going to pay the rent at the end of the month?” or in a more diffuse anxiety:

“What will become of me?”

This situation may sometimes turn to depression in the medical meaning of the word.

SADNESS

In most cases, people find the strength to come out of depression but before they can think positively, their depression will turn into sadness: “What a waste! We were about to win and he spoiled it all…”

This phase is at the very bottom of the V.

This is the time of silent tears as there is nothing to do anymore to save the previous situation.

These tears help release the negative energy, which has accumulated in us. It is a time that the mediator and third parties must respect because it offers redemption.

It can be compared to diving to the bottom of the swimming pool. It will be all the more easy to come up that we have come down quicker because hitting the bottom gives us energy.

ACCEPTANCE

At this stage, we accept the loss, which results in a radical change of focus. Instead of thinking about the loss or about the lost object, we think about ourselves.

We need to keep on living. We need to put ourselves in a position, which will allow us to think of the future.

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FORGIVENESS

To be able to think about the future, we need to get rid of the past. Forgiving is the most efficient way to get rid of the past. Forgiving allows the loss to not be felt like an aggressive act anymore. It becomes an event in life. It belongs to the past. However difficult the loss may have been, forgiving allows us to be rid of it. We do not allow the loss to hurt us anymore.

Forgiving is an absolutely necessary step in our recovery process.

SEARCH FOR MEANING

To rebuild ourselves, we need to find values on which we will build the new a meaning of our lives: the interest of the children, the continued service to the public. These values will act as sources of energy and as goals to be attained, which mobilize energy. They help us to recreate a project of being.

In terms of negotiation and mediation, it is a very important moment, as it will create the possibility of a solution. The possible solution will have to be based on the needs, which appear at this stage.

These (emotional or other) needs are both a source of energy to move toward a solution and a constraint regarding the conditions of an agreement.

SERENITY

This concept of serenity of course has a very different meaning when it is about waiting for death and when it is about resolving a conflict.

In the second case, it means that the person has parted from the painful past, is going to receive the payment or pay what do what has been agreed in order to get rid of the conflict and is now ready to concentrate on the future. The future may not be very exciting but the conflict has been resolved.

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How Do Conflicts Resolve?

If conflicts can be described as follows:

How can we resolve them?

There are five solutions. To help you find them, I suggest that we start thinking about a case study.

THE CASE OF THE ORANGE

A room. In the room, there is a table. On the table, there is an orange.

A woman comes in: Mary. She goes to the window and looks at the landscape for a while and returns to the table. She is about to grasp the orange when the second woman, Elizabeth, Mary’s sister, comes in.

Elizabeth: Hello! What are you doing here?

Mary: I came to take the orange.

Elizabeth: We have a problem because I too came to get the orange.

We are facing a characterized conflict: those sisters want the only orange there is. If one obtains it, the other is frustrated.

How can we break the impasse?

Mary: Sorry but I was here first!

Elizabeth: This is not a good reason! I am older; you must let me have it!

Mary: On the contrary, as the older one, you should sacrifice yourself for your little sister.

Elizabeth: Do you think I am stupid? This orange is mine, period! (She grabs the orange). Come and get it if you dare!

Mary: Alright! I see that you want to fight! We are sisters. Are we going to fallout with each other over an orange?

Elizabeth: That’s what you always say! You always want to have the best and you never think about what I may need or what time may want!

Mary: What is that now?

Elizabeth: You know perfectly well what I’m talking about. And it has always been like this.

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Mary: Elizabeth, I am sorry but I really do not know what you’re talking about. I see that you’re getting really angry and I am truly sorry. I didn’t have any intention to hurt your feelings. To me, it was only about an orange.

Elizabeth: Are you saying that you do not remember that Mummy used to always give you the best share of everything and would always give me the worst one, when she was not simply forgetting to serve me? I remember my birthday when I turned 10. She gave you the last piece of my cake without even asking me if I wanted it. That’s what you’ve gotten used to throughout the years. It is going on and it doesn’t even occur to you that you could let me have this orange.

Mary: Elizabeth, I am sorry to hear that. I have no recollection of this birthday and I am sincerely sorry if this hurt you. I never tried to be better treated than you and I very much regret that you may have felt so. My god! What can I do now? Of course, take this orange if it is so important to you.

Elizabeth: No, that’s not the problem. I admit that it is not your fault. Mummy always made me feel that she preferred you but I don’t think that you have ever tried to take advantage of me. You’re right. I got angry. Let’s leave this orange where it is and let’s go for a walk together.

Mary: Well! That’s better! But, isn’t it a pity to leave this orange if we both want it. Maybe we could share it…

Elizabeth: Half and half?

Mary: This seems to be what sisters do…

(Mary is about to cut the orange)

Elizabeth: There is not going to be much for either of us… how about going out and buying a second one?

Mary: And we would pay half and half?

Elizabeth: Excellent idea! So we shall both have a full one for a cheap price!

(They both go out to buy a second orange. On the way:)

Elizabeth: By the way, why do you want an orange so badly?

Mary: The doctor said I should have orange juice every morning and I have not had it yet.

Elizabeth: So it is not the orange that you want, it is the juice…

Mary: Yes. In a way… and you?

Elizabeth: I want to make a tart. I only need the rind.

Mary: Then there is no problem! You don’t want the orange either; you want the rind. I will press the orange and then give you the rind!

Elizabeth: That’s it! No reason to argue…

All along this dialogue, the two sisters discussed the five solutions, which allow the resolution of any conflict. I imagine you found them. They were also faced an obstacle, which almost ended the discussion and could have created a tragedy.

Let’s go back to the story!

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FIRST SOLUTION: CONSTRAINT

Mary: Sorry but I was here first!

Elizabeth: This is no good reason! I am older; you must let me have it!

Mary: On the contrary, as the older one, you should sacrifice yourself for your little sister.

Elizabeth: Do you think I am stupid? This orange is mine, period! (She grabs the orange). Come and get it if you dare!

At this stage, both sisters tried to coerce the other one in order to make the other sister forget about the orange. They do not negotiate. Neither has any intention to modify her will. She wants to change the other one’s!

Each of them tries to obtain the orange for herself and to deprive her sister.

Constraint can be described like this:

Did you notice that they used several techniques to this effect?

First Technique: The Law

Mary: Sorry but I was here first!

Elizabeth: This is not a good reason! I am older; you must let me have it!

At this stage, both sisters try to coerce each other by invoking a right.

The fact to have been the first in the room, would give Mary the right to have the orange. Elizabeth should acknowledge this right and accept it.

Elizabeth, on her part, invokes her birth right.

Obviously this technique does not work one way or the other. So they decide to move to another one.

The use of the law in negotiation is a major error. In general, each party knows its rights. Even when wrong we often resist the claim of the other. The law is not a means of negotiation between the parties. It is a means for the judge to make a decision. Taking the other party as the judge, who should make the decision between the two of them, is a logical mistake. This mistake is frequent, particularly by lawyers who think that they are negotiating when they repeat their legal arguments to their colleague who is paid to say no. There is no hope for success on this ground.

The law belongs to constraints and constraint is the opposite of what we are looking for in negotiation.

Second Technique: Guilt

Mary: On the contrary, as the older one, you should sacrifice yourself for your little sister.

Forgetting about the law, Mary is now trying to bring Elizabeth to impose a moral obligation upon herself: as the oldest sister, she should sacrifice herself for her little sister.

It is no more about putting pressure on her sister from the outside but to bring her sister to impose an obligation upon herself.

This mechanism of guilt often works spontaneously. It is not always necessary that someone remind us of our moral obligation to make us impose it upon ourselves.

Third Technique: Violence

Elizabeth: Do you think I am stupid? This orange is mine, period! (She grabs the orange). Come and get it if you dare!

This reply comprises three sentences.

In the first one: “Do you think I am stupid?”, Elizabeth makes it clear that the debate has changed.

It is no more a question of having but a question of being. Elizabeth indicates that the discussion about the orange is not only on a question of knowing who is going to have the orange but also about what Mary thinks about Elizabeth. Does she believe she is stupid? We move from interests (at the bottom of Maslow’s pyramid) to the emotional level of esteem, which is to say to identity.

This phenomenon is quite frequent in this kind of confrontation. The confrontation on the rights or on the moral obligations implies or generates a judgement. This judgement should end up in one giving the orange to the other through an evaluation of the people or of their conduct. The orange should go to the good one and the bad one will not be entitled to anything.

This feeling of being judged (refusal of esteem) generates anger. Losing an orange is nothing. But being judged by one’s sister is a real problem. There is there is a violent emotional reaction. This emotion is so strong because she feels lost and devaluated, challenged in her own identity.

In the second sentence, Elizabeth indicates that she intends to stick to the right she invoked and refuses any further discussion. She comes back to constraint by the law. But, as she noticed that her sister who was not acknowledging this right, she immediately exercises it by grabbing the orange: she is bringing justice to herself.

She did not use violence to push her sister away in order to prevent that she would take the orange. She took the orange and she then challenged her to use physical violence to get it back.

This mechanism is very important. It appears that confrontation on having turns out almost automatically to a confrontation on being. This confrontation on being cannot be negotiated. Consequently, it generates violent feelings of anger, which lead to physical violence.

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At this stage of the objective is often forgotten. Violence is there to punish and even annihilate the other who is challenging us in our identity. The objective to obtain the object has become secondary.

Conclusion on Constraint

As far as the object is concerned, constraint will make:

• One satisfied party;
• One frustrated party.

As far as the relationship is concerned, constraint will considerably deteriorate it.

Constraint is “conflictogenous”, it generates conflict. The party, which was frustrated, will directly enter into conflict the next time this party will have the same need if the one who was satisfied still wants the object.

Moreover the emotional frustration, which was experienced by the one who did not obtain the object and the deterioration of the relationship, may lead this party to provoke new conflicts with the only goal of obtaining revenge. The object of the conflict will only be an occasion to provoke a new confrontation. The woman who was frustrated about the object and in terms of affiliation, will hope to win on another occasion, which will allow her to improve her image in the eyes of others and mainly in her own eyes.

Even when constraint has been accepted wholeheartedly and with positive emotions, (“I am proud, as the older sister, to let my little sister have the orange.”), this situation will remain conflictogenous. The one who will have agreed to this sacrifice on the object will expect that on another occasion her sister will sacrifice herself. If this occasion does not arise, she may provoke it. She will provoke a dispute.

All these old frustrations appear in disputes around successions. Brothers and sisters, who do not see each other on a regular basis any more, find the last occasion to get compensation for their old emotional frustrations in the succession.

THE THREE DIMENSIONS OF A SOLUTION

We just discovered that there are three dimensions to a solution:

1. The substance: who will have the orange or part of it?
2. The emotion: how does each feel about the solution?
3. The relationship: how is the solution going to impact future relations between the parties?

It is important to understand that the relationship and the emotions are not necessarily linked. Sharing may be frustrating emotionally and on the substance without necessarily affecting the relationship, because it’s normal to share with one’s sister. One can be happy of one’s own generosity (emotion) then look for reciprocity, which may create a new dispute (relationship).

Solutions and their effects on the relationship are constant. The emotions are different depending on the people because they result from the identity. Someone who gave in under moral constraint can feel proud or humiliated.

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The difference is not linked to the solution, which remains the same. It results from the differences in personalities.

THE EMOTIONAL OBSTACLE

Mary: All right! I see that you want to fight! We are sisters. Are we going to fall out with each other over an orange?

Elizabeth: That’s what you always say! You always want to have the best and you never think about what I may need or what I may want!

Mary: What is that now?

Elizabeth: You know perfectly well what I’m talking about. And it has always been like this.

Mary: Elizabeth, I am sorry but I really do not know what you’re talking about. I see that you’re getting really angry and I am truly sorry. I didn’t have any intention to hurt your feelings. To me, it was only about an orange.

Elizabeth: Are you saying that you do not remember that Mummy used to always give you the best share of everything and would always give me the worst, when she was not simply forgetting to serve me? I remember my birthday when I turned 10. She gave you the last piece of my cake without even asking me if I wanted it. That’s what you’ve gotten used to throughout the years. It is going on and it doesn’t even occur to you that you could let me have this orange.

Mary: Elizabeth, I am sorry to hear that. I have no recollection of this birthday and I am sincerely sorry if this hurt you. I never tried to be better treated than you and I very much regret that you may have felt so. My god! What can I do now? Of course, take this orange if it is so important to you.

Elizabeth: No, that’s not the problem. I admit that it is not your fault. Mummy always made me feel that she preferred you but I don’t think that you have ever tried to take advantage of me. You’re right. I got angry. Let’s leave this orange where it is and let’s go for a walk together.

The discussion is taking another path. The sisters were strongly but efficiently discussing possible solutions. All of a sudden, this discussion was blocked and moved toward a very different point, i.e. the relationship their mother had with each of them.

Because Elizabeth believes that her sister was the favourite in their childhood, she doesn’t want her to have the orange. A persistent emotion is appearing. The orange crystallizes an old frustration that Elizabeth experienced. The orange is not discussed for its substance any more. It is only an opportunity to compensate this frustration and to symbolically make Mary pay for the advantages that she, according to Elizabeth, unduly received for many years.

When we will discuss the practice of negotiation/mediation, we will have to study the ways to resolve such problems. For the moment let’s limit ourselves to some very important concept:

• This problem created an impasse in the discussion and it could not resume as long as it had not been resolved. It then could not be ignored and one could not postpone its treatment. The problem would have

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reappeared even more violently if one had attempted (once more, in the eyes of Elizabeth) to ignore it.

• This problem is totally separate from the substance of the orange. When Mary finally offers it to Elizabeth, she is not interested in it more. The orange was not an orange in the eyes Elizabeth any more but a pure symbol. If she would simply have offered an orange without acknowledging the problem (“Take this orange and leave me alone.”), the problem would not have been resolved and Elizabeth would have found the means to make it reappear (“Look at the way you’re giving it to me… Like you would throw food to your dog…”).
• As soon as Mary acknowledged that there was a problem for Elizabeth, said that she felt sorry and showed her desire to resolve it (though it cannot be resolved because it belongs to the past), the problem disappeared. Elizabeth turned her mind to something else though nothing substantial had changed. She received this acknowledgement and it was enough. The time of mourning is over and she is now ready to move on to something else.
• We should also notice that Mary did not say that Elizabeth’s memories were correct and that she was ready to consider that Elisabeth was not treated fairly. She only said: “Elizabeth, I am sorry to hear that. I have no recollection of this birthday and I am sincerely sorry if this hurt you. I never tried to be better treated than you and I very much regret that you may have felt so. My god! What can I do now?” In other words, she expressed:
• Her regrets for the past and the way it was felt by her sister;
• Compassion;
• Her desire not to hurt her sister;
• Her desire to remedy the old frustration (which is of course impossible).

The accumulation of these four remarks allows Elizabeth to move on to something else and makes the problem disappear.

SECOND SOLUTION: RENUNCIATION

Elizabeth: “You’re right. I got angry. Let’s leave this orange where it is and let’s go for a walk together.”

Mary: Well! That’s better!

The sisters discovered the absurdity of their discussion. There was a total disproportion between the value of the relationship between the two sisters and the value of the object of the discussion: the orange. Two sisters cannot fall out with each other over an orange.

As the desire to have the orange created the dispute, the dispute will disappear with the renunciation by both sisters to the orange.

We are in a process where the two sisters become conscious of the relative values of the relationship and of that of the object. They make the relationship prevail over the object.

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Renunciation can be described as follows:

Conclusion on Renunciation

As far as the substance is concerned, renunciation reaches the following results:

• No one is satisfied.
• Both are frustrated.
• As far as the relationship is concerned, renunciation improves it.

Actually, the affirmation by both sisters that the relationship is so important to each of them, brought the solution to the dispute over the substance. In a caricatural way, each sister told the other one: “I love you more than the orange”.

Therefore the relationship has improved.

This may appear trivial when it is about an orange but when it is about a valuable object (a beautiful apartment in a major city, a painting, a company, a piece of jewellery…), this “I love you” may be quite meaningful!

Renunciation implies that both parties give more importance to the relationship than to the object. If this was not the case and if only one was ready to give up over the object in consideration of the relationship, we would be in a constraint situation: one gives in under the threat of the termination of the relationship (this is the permanent strategy of the major distributors with their suppliers).

THIRD SOLUTION: DISTRIBUTION

Mary: Well! That’s better! But, isn’t it a pity to leave this orange if we both want it. Maybe we could share it…

Elizabeth: Half and half?

Mary: This seems to be what sisters do…

Both sisters are now trying to get some satisfaction on the substance rather than not having any, as it was the case with renunciation. Each sister is going to limit her will to be satisfied with only part of the orange and her sister will obtain the rest of it.

The shares are not necessarily equal.

Once they have accepted the principle of sharing, the proportions are still to be determined. How did they agree on an equal proportion? They

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accepted it because they acknowledged that this was the usual way to share between sisters.

They thus accepted a criterion or an exterior rule, which allowed them to find a solution.

Distribution can be described as follows:

The wheels are still opposed but they do not block each other anymore. Because they are limited, they can be satisfied without blocking each other.

There are actually two different types of distributive solutions. The case of the orange, like cases of determination of an amount of damages, only implies the one dimension of sharing. The solution is necessarily x% for one and the rest for the other. There are more complex distribution cases and particularly for the creation of attribution of shares in a succession.

Conclusion on Distribution

As far as the object is concerned, distribution makes:

• Two parties half satisfied (or the proportion of the distribution);
• Two parties half frustrated.

As far as the relationship is concerned, it remains unchanged because they admit that this is what sisters usually do. This proportion is normal.

It would obviously be different if the proportion of the distribution resulted from constraint.

FOURTH SOLUTION: COOPERATION

Elizabeth: This is not going to be much for each of us… how about going out and buying a second one?

Mary: And we would pay half and half?

Elizabeth: Excellent idea! So we shall both have a full one for a cheap price!

In an attempt to eliminate the remaining frustration of the distribution, the sisters decide to go buy the second orange together and at their common expense.

This is a cooperative⁴ process. Instead of fighting with the risks of frustration, of a partial satisfaction and of the deterioration of the relationship, they decide to work together for a superior objective: the full satisfaction of all parties. In this case the two sisters will both go to the next shop and will buy a second orange together.

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Cooperation can be described as follows:

The two arrows, which were opposing each other horizontally, are now flying upwards in parallel, which means to the greatest satisfaction of both parties.

Conclusion on Cooperation

As far as the object is concerned, cooperation makes:

• Two parties satisfied;
• No party frustrated.

As far as the relationship is concerned, it is improved as the two sisters decided to work together rather than fight.

FIFTH SOLUTION: THE WIN-WIN SOLUTION

Elizabeth: By the way, why do you want an orange so much?

Mary: The doctor said I should have orange juice every morning and I have not had it yet.

Elizabeth: So it is not the orange that you want, it is the juice…

Mary: Yes. In a way… and you?

Elizabeth: I want to make tart. I only need the rind.

Mary: Then there is no problem! You don’t want the orange either; you want the rind. I press the orange and I give you the rind!

Elizabeth: That’s it! No reason to argue…

Now that the problem is (actually seems to be) resolved by cooperation, Elizabeth steps back from her stance. She’s not looking for a solution any more. She resumes a nice conversation with sister. Just as she could ask about her next holiday, she asks why she wants the orange.

A revelation occurs in the eyes of the two sisters: their needs for the orange are different and compatible.

The discovery that at the origin of their expressed positions (“I want the orange!”), there are needs (or interests) which motivated them, which have been translated into their inappropriate positions. The positions created the dispute and the revelation of their interests made the problem immediately disappear. Each of them can have what she desires without hurting the other one.

Both parties win! Hence the name of the solution…

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The expression “win-win solution” is quite often misused. We tend to use it to say that each party eventually obtained some satisfaction in a distributive solution. This is a misuse of words as in fact the distributive solution gives some satisfaction but also creates some frustration.

This expression cannot apply to the cooperative solution though it does reach the full satisfaction of both parties. The reason is that there is a price to it: half of the price of the second orange, in this case. In other cases, the price of cooperation can be work, time, money etc.

The win-win solution can be described as follows:

Both arrows go to the end of their will.

Conclusion on the Win-Win Solution

As far as the object is concerned, the win-win solution makes:

• Two satisfied parties;
• No frustrated party.

The relationship has improved, as the sisters understand each other better.

Info on the win-win solution does not resolve the dispute. It allows the parties to realize that there never was a real dispute. It seemed to be so because the two sisters were expressing positions, which did not match their needs, which were actually compatible.

THE EVALUATION OF THE SOLUTIONS

All the solutions are obviously not equivalent. It is interesting to look for the best in order to try to obtain them as far as possible.

Number 1: The Win-Win Solution

If we look at our conclusions in terms of satisfaction, frustration and evolution of the relationship, we find two equivalent solutions: cooperation and a win-win solution. Both of them make two satisfied parties, no frustrated party and improve the relationship.

But these two solutions are not equivalent. As we just saw, the difference is pertaining to the cost. The win-win solution is immediate and free of cost as it makes the dispute disappear. On the contrary, cooperation demands time for resolution and includes a cost in terms of money and of work.

As a consequence, the win-win solution is preferable.

But it is not always possible. Interests have to be compatible to allow a win-win solution.

In our example, if both sisters had needed the juice, the win-win solution would not have been possible.

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Number 2: Cooperation

Not being able to reach a win-win solution, Mary and Elizabeth should have tried to co-operate because it was the best alternative solution. It would have cost each half the price of an orange.

Cooperation was not necessarily possible. If at least one of them had not had the money to take part in the purchase of the second orange, there would not have been any possible cooperation.

To which solution should they have turned to obtain the best satisfaction and the best possible relationship?

Number 3: Distribution

Obviously they should have turned to the distribution solution; that means they should have shared the orange, which allowed them to keep the same relationship and to obtain some level of satisfaction.

Once again, the possibility of the solution was not guaranteed. If both of them had wanted to make a cake and have needed the whole rind to make it, distribution would not have been possible.

Number 4: Renunciation or Constraint?

One has to choose between renunciation and constraint.

Whereas the order between the previous solutions cannot be challenged, there is no pre-established order of between renunciation and constraint.

Renunciation is based on the fact that one values the relationship above the object. This is not always the case. When the dispute is about an orange and the relationship with one’s sister, the solution seems obvious. When the choice is between a large amount of money and a distant or definitely compromised relationship, the opposite solution should prevail. The object is then preferable to the relationship and if the parties cannot reach an agreement, they will try constraint through justice for instance.

This evaluation of the five possible solutions is one of the fundamental elements for the determination of the strategy in any negotiation.

A Strategy for any Dispute

When we find ourselves in a situation of blockage between two opposing wheels we should:

• See if the interests behind the positions are compatible. In the affirmative, the win-win solution will be easily found and the dispute will disappear.⁵
• If their interests are not compatible, one will have to look for the second solution: cooperation. We will have to see if the parties can work together in order to obtain a full satisfaction of the needs of both of them. If this is possible, then this corporation will have to be organized in practice.

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• If this is not possible, we will have to move toward the following solution: distribution. We shall have to see if and how the object of the dispute can be distributed between the parties and to this effect try to find criteria, which will justify a way of sharing.
• If again distribution is not possible, one will have to choose between renunciation and constraint according to the evaluation of the relationship and of object by the parties.

We should know that renunciation and constraint are not negotiated solutions. Renunciation is not really a solution. Constraint is the opposite of an agreement toward which a negotiation is aimed.

That means that the negotiated solutions to a dispute are limited to win-win, cooperation and distribution.

Once this has been understood, the work of a negotiator/mediator becomes much easier.

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The Personalities of the Negotiators

Depending on our personality, we tend to adopt typical behaviours in negotiation and mediation.

It is useful to realize what are our natural tendencies are in order to improve ourselves and to adopt the most profitable behaviour rather than the one which attracts us spontaneously.

Professor Kenneth W. Thomas and Ralph H. Kilmann created a classification, which seems inspiring and useful. They also created a test known as the Thomas-Kilmann conflict mode instrument to allow us to evaluate ourselves on this grid.

In conflict situations, they describe an individual’s behaviour along two dimensions: (1) assertiveness, the extent to which the person attempts to satisfy his own concerns, and (2) cooperativeness, the extent to which the person attempts to satisfy the other person’s concerns.

These two basic dimensions of behaviour define five different modes for responding to conflict situations:

1. Competing is assertive and uncooperative — an individual pursues his own concerns at the other person’s expense. This is a power-oriented mode in which you use whatever power seems appropriate to win your own position — your ability to argue, your rank, or economic sanctions. Competing means “standing up for your rights,” defending a position, which you believe is correct, or simply trying to win.
2. Accommodating is unassertive and cooperative — the complete opposite of competing. When accommodating, the individual neglects his own concerns to satisfy the concerns of the other person; there is an element of self-sacrifice in this mode. Accommodating might take the

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form of selfless generosity or charity, obeying another person’s order when you would prefer not to, or yielding to another’s point of view.

3. Avoiding is unassertive and uncooperative — the person neither pursues his own concerns nor those of the other individual. Thus he does not deal with the conflict. Avoiding might take the form of diplomatically sidestepping an issue, postponing an issue until a better time, or simply withdrawing from a threatening situation.
4. Collaborating is both assertive and cooperative — the complete opposite of avoiding. Collaborating involves an attempt to work with others to find some solution that fully satisfies their concerns. It means digging into an issue to pinpoint the underlying needs and wants of the two individuals. Collaborating between two persons might take the form of exploring a disagreement to learn from each other’s insights or trying to find a creative solution to an interpersonal problem.
5. Compromising is moderate in both assertiveness and cooperativeness. The objective is to find some expedient, mutually acceptable solution that partially satisfies both parties. It falls intermediately between competing and accommodating. Compromising gives up more than competing but less than accommodating. Likewise, it addresses an issue more directly than avoiding, but does not explore it in as much depth as collaborating. In some situations, compromising might mean splitting the difference between the two positions, exchanging concessions, or seeking a quick middle-ground solution.

Each of us is capable of using all five conflict-handling modes. None of us can be characterized as having a single style of dealing with conflict. But certain people use some modes better than others and, therefore, tend to rely on those modes more heavily than others — whether because of temperament or practice.

The TKI is designed to measure your mix of conflict-handling modes.⁶

Obviously, collaborating negotiators will often obtain the best results. This doesn’t mean that one should always be collaborative. We should be able to avoid some conflicts and behave as avoiders. Collaboration is not always possible and some conflicts only accept distributive solutions. One should then be able to move from a competitive behaviour to an accommodating and possibly compromising behaviour.

I strongly encourage you to try this test. Then think about your natural behaviours and what you can do to avoid falling systematically into these same behaviours and to use the most appropriate behaviour in each phase of the negotiation/mediation.

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Power in Negotiation

In the traditional approach of negotiation as of fight, the question of power is major. Negotiation should make a winner and a loser. The power of that each party will be able to take over the other one will make the difference.

This is the idea of Machiavelli and of many others who try to “negotiate” by intimidation and other doubtful techniques, which are unfortunately still taught today, more than 30 years after the creation of principled negotiation.

We think that, following the teaching of Fisher and Ury, power is an important element in negotiation but it should not be the core element of negotiation. A negotiation based on power ends up in constraint and will then potentially create new conflicts. For a solution to be acceptable and viable, it has to take the interests of the weakest party into account.

THE QUESTION OF POWER

Think about the end of the First World War and about the end of the Second World War.

In both cases Germany was totally beaten. It had no power of negotiation. The Allies were the winners and had all the power.

The Versailles Treaty of 1919

In the first case, the Allies imposed their power. Germany had to surrender to all their demands and could not negotiate anything. In the Versailles treaty, Germany had to accept unbearable financial sanctions.

What was the result?

On the Allies side and particularly on the French side, everyone adopted a comfortable insouciance stands because “Germany will pay!” As a result of that attitude, when the war started again 20 years later, France was absolutely not prepared and was badly beaten in a few weeks.

On the German side, they experienced this as a terrible humiliation, which called for revenge. They also experienced an economic crisis, which forbid them to pay their debt and which created the conditions of the new conflict.

As a consequence the Nazi party grew and won. It put an end to the economic crisis and restored national pride.

This country in the hands of a madman and Europe, which was not ready for any effort, created the conditions of the Second World War, along with the crimes of Nazi racism. It could only be won thanks to the help of America and other countries (Australia, Canada, New Zealand, to name a few).

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The Marshall Plan 1948

For once, experience proved useful.

At the end of World War II, when Germany was again ruined and on its knees facing the victorious Allies, the Americans (who were the only ones able to do so) offered the financial means for its recovery and Western Europe a peace period, which has been lasting for 70 years at the moment I am writing these lines.

In this second case, power was not used to annihilate the other. It was used to build a viable and sustainable situation, which is still profitable to the winners and the losers. Most of all it offered the means to harmoniously live together for a long period of time.

What Role Should Power Play?

It is important to have power but negotiation should not be based on power because this leads to absurd and conflictogenous results.

Powers should of course allow us to obtain satisfaction of our needs and interests but it should also allow us to create a viable and sustainable agreement.

Unfortunately a lot of authors on negotiation teach exactly the opposite that is to say how to use your power to intimidate and possibly deceive the ”opponent”.

In negotiation/mediation, the misleading power consist in putting pressure with a strength that one has or believes he has, and to use deception to induce the partners to sign an agreement, which they will not abide by and which will lead to new conflicts.

Putting Pressure

Once again, this is our spontaneous way of negotiating. We put pressure either by physical strength, or by the threat of a physical constraint or by moral pressure.

Acting in this manner will lead our negotiation/mediation toward constraint with its terrible consequences.

Pressure is particularly inappropriate when it is exercised as “I am right, you are wrong”. By doing so we add a second level of problem (“Who is right and who is wrong?”) to the initial problem (“Who will have what?” or “Who will do what?”). The addition of a second problem leads to heavy emotional consequences because it is felt as an attack against the need of esteem and against one’s identity. It then creates increased resistance from the other party.

Deception

Let’s be clear: you are reading a manipulation manual. Manipulation is not a bad thing per se. When we educate our children, when we try to seduce, to sell, to buy, to convince, we try to manipulate the person we are talking to.

The problem with manipulation is in the intention. Am I manipulating this person for his or our good or to do something that could be detrimental to him or someone else.

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Deception is using my manipulation against the interest of the person we’re talking to, in order to induce this person to do something detrimental to his interest.

The power of manipulation may bring people to agree to unacceptable conditions. If the relationship is going to go on, it is almost certain that a new conflict will appear. If the relationship is not to be continued, there may be a legal question about how far deception went, knowing that it is sometimes a criminal offence or a cause for the nullification of the agreement.

On the contrary of what people usually believe, a good negotiator/mediator is not trying to deceive anyone. A good negotiator helps people finding satisfactory agreements, which will be complied with throughout the time and which will prevent future conflicts.

THE REAL POWER: THE BATNA

Fisher and Ury created the concept of BATNA (Best Alternative To a Negotiated Agreement).

According to this concept, the power of the negotiator resides in his capacity to not agree. If I can do without an agreement with this party, nothing can compel me to accept what I do not like. If the other party wants an agreement, he will have to take my interests into account.

In other words, to be powerful, one must have envisaged and prepared an alternative solution and go to negotiation to try and obtain a better solution.

We rarely negotiate for fun without caring for the result. If we go to negotiation, it is because we believe that an agreement would be useful. The question in reality is as to how to discriminate a favourable agreement from one, which is not.

A Favourable or Unfavourable Agreement

Let’s explore the concept of BATNA.

When I enter into negotiation, I must consider the possibility of not reaching an agreement. If such is the case, how could I deal with the situation I am facing? If I cannot buy this house, where can I live? Can I stay where I am? Is there another house that I like at an acceptable price? Is renting a possibility and can I quickly find something to rent?

If I am not in a hurry to buy, the seller will have to make considerable efforts to make me buy his house. If, on the contrary, I have no other solution, I shall have to make such efforts.

Of course, time is a major component of my BATNA and probably the most important one and least as important as money.

We often are subjected to this alternative, which gives us power or deprives us of any power. On the contrary, the concept of BATNA invites us to actively work on a solution. It must be the Best Alternative, which implies that there are several. The authors invite us to improve our alternative as much as possible and to only enter negotiation when we have the best possible alternative. As far as we can wait…

In a more familiar formulation, we would say that we have to prepare the best possible plan B.

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The interest of the concept of BATNA does not only reside in showing what one should refuse as we can obtain a better solution some other way.

It allows you to determine when you start winning.

Your BATNA to Win in Negotiation/Mediation

Everyone enters negotiation/mediation to win. But what does this word mean?

• Winning means two very different things: To obtain victory for you and defeat for the other. This is the case in war, in games, in sports.
• To gain an advantage, particularly winning money.

Fisher and Ury teach us that we should prefer the second type of winning over the first one though, too often, in the heat of the discussion, we tend to think more of making the other party lose than about getting an advantage for ourselves.

If you forget about the emotional aspect, only the profit matters.

How can you measure your profit?

We usually consider that if the result of the negotiation/mediation is beyond our costs (when this concept applies), we make a profit and we lose in the opposite case. This is right in the eyes of an accountant, not of a negotiator/mediator.

If the negotiation/mediation is at a level below your cost but beyond what you could obtain in court, you win. If you sell the big house that you cannot maintain anymore, at a price below your purchase price but if this price allows you to buy the little house of your dreams, you win.

This concept is fundamental in negotiation/mediation. I must exercise my power to gain what I need, not to make the other party lose. My power is only valuable insomuch as it makes me obtain a sustainable profit.

The profit or the loss do not correspond to an accounting profit or loss but to the difference between what you receive in the negotiation/mediation and what you would obtain if you do not reach an agreement.

BATNA in an Organization

The concept of BATNA is particularly relevant within an organization.

It is around the concept of BATNA that the strategy will have to be decided within the organization and that the appropriate instruction will be given to the negotiators: try to obtain this and, if possible, that.

Based on the same concept, one will be able to evaluate the results of the negotiation/mediation and the hierarchy will be able to make the decision of accepting or not the result their negotiation brought back.

In other words, BATNA offers power to the organization by ensuring the coherence of the vision of the various stakeholders and by avoiding that the organization tries to reach incompatible results through its various representatives.

In reality, the same rule applies to individuals as we live in a hierarchical structure between our Ego and our Super Ego. We need to consider our

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BATNA to define our own reasonable goals and to be able to evaluate the opportunities we may encounter in the negotiation/mediation.

Calculate Your BATNA

All the participants in my training tell me that they prepare their negotiation calculating their BATNA. It may be true though I have some doubts.

But I often wonder if they do not calculate their BATNA too casually: “It’s going to last long and cost a lot of money”. This does not mean anything. What matters is how much it is going to cost, how much you may win, how long it is going to last and what will be the cost of time. It is only then that one can compare these amounts to the stakes and decide what is the BATNA and what can be accepted or should be refused.

Imagine that a company owes you €100,000. It is six months late in payment and is asking for negotiation. When you prepare to negotiate, your BATNA seems to be a court case and its value will be the result of the following equation:

Debt — cost of the lawyer — cost of the court — possible cost of an expert — financial expenses x% of chances to win depending on the other party’s arguments + interests to be received + possible damages for late payment +% of costs awarded by the court.

The BATNA is not necessarily frightening. When you seriously try to calculate it, it is often above what you imagined. It then brings comfort and gives you energy in your negotiation/mediation.

Non-Financial BATNA

Your BATNA is not always to be thought of in financial terms.

In the case of a divorce, the choice may be between maintaining an unpleasant life and living alone. Nobody can give you advice on such a choice. This is a purely personal choice to decide if you prefer to be alone or ill accompanied.

BATNA is then not the result of a calculation. It is becoming deeply conscious of the possible solution offered to us in order to choose the one, which will be the most acceptable for us from an emotional perspective.

We may have to search for a soul mate before initiating the divorce proceedings in order to make sure that our BATNA is acceptable.

In many cases, the choice must be made between two emotional situations and in every case there is an emotional dimension to the choice we will have to make, even when it is mainly financial. The relief to be rid of a litigious situation is often worth a lot of money, though some people love these situations. In other cases, the end of the litigation through an agreement implies the end of any kind of relationship with someone that matters to you and with whom litigation was keeping some kind of relationship alive, even if it was not a happy one.

I have often seen people, even in apparently purely commercial negotiation/mediations, who preferred keeping the litigious link to still be somehow bound to the other party, rather than accepting financially advantageous solutions, which would have terminated the relationship. This seems absurd

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but it is not. The BATNA of the full termination of the relationship was simply unacceptable.

Those who work on themselves to become conscious of their own feelings when considering the various alternatives are much stronger than before becoming conscious of the satisfactions and pains that each of them implies.

It is obvious that as we enlarge and deepen our mindfulness, we gain power over ourselves, over the situations we face and possibly over people around us. This is true in any aspect of life and particularly in negotiation/mediation. Calculating your BATNA is an opportunity to clarify our motivations. It therefore gives us power over ourselves as well as over others.

Financial and Non-Financial BATNA

In many cases, people start a court case and claim large amounts of money because they have no other choice: to be heard by a judge, the law, in most countries, demands that you requests something and courts can only satisfy monetary claims.

But quite often people are not interested in the money. They want recognition by the other party and, failing this, by the community through the judge, of what they are or of the damage they suffered or of the fault committed by the other party.

One way to handle this problem is to ask for a symbolic amount. That is acceptable in cases such as defamation for instance. In most cases, one feels the need to demand a large amount to illustrate either how heavy the fault was or how painful the damage was (See a perfect example on page 94).

Your BATNA can be defined in financial terms by the odds in court. It can also be thought of in other terms: do you prefer that the other party admits being guilty and offers an apology without money or money in court with no recognition or apology and the risk of a counter attack?

There is no good answer to this question. The right answer resides in the heart of each of us when we are confronted with such situations.

And the same question is posed to organizations, as they have a soul just like individuals.

BATNA: The Lethal Weapon of Weak Parties

Here is a story. In the time when we had a two-digit inflation rate, a lawyer in my firm had a client who had created a girder business. He had obtained what was for him the contract of the century: the supply of girders for the construction of a nuclear plant.

Because of inflation, prices had to be periodically revised. In June of that year, the client and other suppliers were convened by the main contractor to a price-revision meeting. The client asked his lawyer to accompany him to the meeting in order to get the best possible result.

When my partner came back in the evening, he looked desperate. I asked him why: “First we were convened for 9 am and they only introduced us at 6 pm. It lasted less than 5 minutes. We were told that as we are in June and

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we are supposed to deliver in August, inflation over one month is negligible and that no revision was to be considered.”

“Actually, it does not seem to be a big problem…” I said.

“It is a big problem. We asked for a 15% increase but they did not want to hear anything. What could we do in front of such a huge company? The result is that my client has to declare bankruptcy.”

“Did you tell them?”

“Of course not! That would have revealed my client’s weakness.”

“On the contrary. You would have won. Go back tomorrow morning and let them know that you are about to declare bankruptcy. You will see what happens.”

He did so in the morning. In the afternoon the auditors of the main contractor were in his client’s offices to understand the situation. They concluded that a 15% increase was not enough to save the business and allow it to deliver in due time. 30% was needed. The main contractor offered the 30% increase.

My colleague and his client did not take their BATNA into account nor that of the main contractor. If the supplier’s BATNA (what would happen in the case of no agreement) was bankruptcy, the BATNA of the main contractor was an interruption of the job for at least nine months. Unthinkable! The requested revision was a trifle in comparison to the damage such an interruption would cause.

When a party to a contract is unable to fulfil its obligations, the other party may be compelled to help this party get out of trouble. A very weak BATNA may turn out to be a considerable strength. Major companies often feel blackmailed by consumers or subcontractors.

Your BATNA is also the limit that the other party cannot trespass: they know that you will never accept anything less favourable than what you have or can obtain through your plan B. Letting the other party know your BATNA secures your position at this level.

Measuring the Other Party’s BATNA

We need to build a plan B. This is already a lot of work.

But we still have a harder job ahead of us: measuring the other party’s BATNA. This is indispensable because it will allow you to evaluate the limit of acceptability for them.

But be careful, this will not mean that the other party will be ready to accept anything beyond their BATNA. They may not be conscious of it and have much higher objectives. You may want to make them realize it.

In most cases, we badly lack information on the other party’s BATNA. Do they have a plan B? Which one?

Another problem is pertaining to the evaluation of the various factors in the other party’s mind. For instance, how can you evaluate how much the other party fears the bad image resulting from a court case? How do they evaluate their chances in court? Do they share your evaluation? It is important to try and discover their state of mind to determine their BATNA

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not from our point of view but from theirs as their negotiation strategy will be based on this evaluation.

This work is not only about guessing. It may include some serious research work to obtain an evaluation as realistic as possible. If we are badly mistaken on the other party’s evaluation of their BATNA, we may either under estimate our chances and not reach results, which were available or to suggest ideas, which will seem unreasonable to the other party and will make the negotiation/mediation more difficult.

There must then be a large amount of work in the preparation phase and at the beginning of the negotiation/mediation to try and understand how the other party perceives their BATNA without letting them bluff.

The Variability of the BATNA

As we said before, one of the difficulties in the determination of a BATNA is due to the lack of information. This is no reason to fail to work on it, but one must be ready to re-evaluate it when information is obtained during the course of the negotiation/mediation, which may influence it. The same re-evaluation may be necessary when events occur which may influence our plan B or theirs.

In the same way, when we will have given new information to the other party, which may influence its vision of the power of each party in the negotiation/mediation, we should underline it: “I described to you the proposal I just received from another company. You should give me a better one to give me a good reason to go on with this negotiation”.

This phenomenon of the variation of the respective BATNA due to new events may happen several times in a negotiation/mediation. Every time you will have to recalculate and, when you negotiate as a team, this recalculation work will have to involve all the members of the team so that they have a clear picture of the BATNA of the organization they represent.

Discovering the ZOPA

The difference between the respective BATNAs of the parties define the Zone of Possible Agreement (ZOPA), a zone within which both parties believe they will be in a better position than if there was no deal. If you know that you cannot accept less than 95 and that the other party cannot accept more than 100, you are 5% apart. This distance between 95 and 100 is your ZOPA. The narrower the ZOPA, the easier the negotiation/mediation and vice versa.

Of course the ZOPA varies with the variations to the parties’ BATNAs and must be recalculated each time something happens that make at least one of them vary.

As well as BATNAs are not necessarily financial, ZOPA is not either. It will appear as the space between the most extreme acceptable options.

Share Your BATNA

Your BATNA will need to be shared if the other party is likely not to know it. This is true when your BATNA is strong but we have also seen sharing one’s BATNA can be a powerful tool in the hands of a very weak party.

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This dialogue between the BATNAs is a fundamental element of the negotiation/mediation. It is not only about the determination of one’s BATNA and of the other’s but also about understanding the effect on the other of the revelation of your BATNA. And then comes the question of if and when you should inform them.

Spontaneously we tend to refuse to let our BATNA be known by the other party. If we feel strong, we prefer to adopt behaviours and possibly a non-verbal language, which will show our serenity and our strength rather than explaining our good reasons to feel strong. Therefore our attitude will likely be understood as a bluff and produce the opposite effect.

On the contrary, we should explain our BATNA in a precise manner and, if possible, provide evidence of what we are saying if we want it to be efficient.

When we feel weak, this feeling of weakness inhibits us and we do not want to share it with others. It would be a good idea to ask oneself what would be the other party’s reaction to the possible discovery of our weakness. We may discover like in the example of the girder business, that our problem may compel or at least induce them to help us.

In her book “The power of vulnerability”, Professor Brené Brown in The Gifts of Imperfection shows that the admission of one’s vulnerability gives strength in human relationships in general. Actually admitting that you are vulnerable is admitting that you have need (emotional needs and interests). What we call being weak here in reality means that we have big needs. We have seen that the expression of needs in negotiation/mediation makes us stronger rather than weaker. It is then in our interest to express our weaknesses. It will not always put us in a strong position like in the girder case but this will give us serious chances to avoid the worst, which would be likely to happen in the opposite case.

In negotiation/mediation of litigious situations, an important factor is the evaluation of each party’s chances in court/arbitration. Though lawyers from both parties have the same education and the same documentation, they generally have very different evaluations of the likely outcome in litigation. One can imagine several explanations to this. For instance, if they did not believe their clients had a good chance, they would not raise arguments in contradiction to what they really think. That should mean that lawyers should refuse every other case. Reality is different. Lawyers are not supposed to judge the case. Their job is to find a way to make their client’s views prevail. They will work to that end and will only enter into negotiation/mediation once they are convinced they have succeeded.

It is obvious that at least one of them is mistaken. It can be interesting to make lawyers work on the origin of their differences. In mediations, when they do so, this brings parties to have a more accurate evaluation of their risk and induce them to quickly find a solution.

TAKING THE PSYCHOLOGICAL UPPER HAND ON A NEGOTIATION/MEDIATION

Of course, the party with the best BATNA has a lot of power.

But some people seem to be able to take power over any negotiation/mediation.

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A memorable example of this occurred in the Vienna congress, which had been convened in 1815 to reorganize Europe after Napoleon’s defeat. Only the members of the coalition opposed to Napoleon and France had been convened (Russia, Prussia, Austria and England). France having been beaten was not allowed to take part.

Nevertheless, Talleyrand, ex-minister of foreign affairs of Napoleon and then of the king, after the restoration of monarchy, invited himself to the conference. When he was told that the conference was limited to the members of the coalition, he answered that it could not be so. Napoleon and France having been beaten, there was no need for a coalition against France anymore and he could not be excluded from this conference, which was to reorganize Europe and France was an important part of Europe. He was then admitted to take part in the discussion and played a major role all along the conference. He certainly was one of the major actors in the new design of Europe.

How was it possible that Charles-Maurice de Talleyrand-Périgord, Prince of Benevent, the representative of a beaten nation, the situation of which had been decided by a previous conference and by a treaty and who was in no position to ask for anything, was able to take the upper hand over four triumphing nations?

I believe there are three reasons for this, which are the keys to this kind of power in any negotiation/mediation:

• an excellent preparation;
• a new vision on the situation;
• the emotional contagion.

Once again the conflict tends to narrow our scope. Parties often arrive at the negotiation table having their minds focused on the problem. They do not see anything anymore.⁷There is a lot of power to get by escaping this intellectual confinement.

Preparation

We shall discuss the preparation of a negotiation/mediation at length. It is not too early to insist on its importance.

The negotiating team, which best prepared has the best knowledge of the problem. They know it better technically, they have a better appreciation of the way the other party or parties view the problem, they have considered other possibilities and the consequences of each option, etc.

They then have the possibility to anticipate and guide the negotiation/mediation in the direction they wish, whereas the other party is disoriented and does not even know how to think about the problem. We shall later see that one should not abuse of this power without incurring the risk of creating negative energy.

A New Vision

If you take the time not only to look at the problem but also to climb to the balcony to see the general situation from above, you discover amazing

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possibilities. Surprisingly, when you share your vision with others, it does not induce them to climb to the balcony to make their own new vision. They listen to your description and simply adopt it.

This is what gives you power. After Talleyrand had described this new vision of Europe, he placed himself in a position to tell everyone what would happen to them. This is how he became one of the inventors of the Europe that emerged from this congress.

This is a very difficult exercise and Talleyrand was therefore nicknamed “the Prince of Negotiation”. This difficulty invites us to use mediation. The mediator, who is not caught in the conflict, has another vision, which may open new and interesting perspectives to the parties, who could not see any without a mediator.

The Emotional Contagion

As we described before, emotions are contagious. The expression of an emotion is going to influence the emotional state of the other party and create an atmosphere, which may be more or less favourable to the negotiation/mediation.

We usually come to the negotiation/mediation in the coldest possible state of mind. We try to hide our emotions as we try to hide our interests. This is quite ridiculous. We are in negotiation/mediation because we have needs, i.e. emotional needs and interests. When we attempt to deny it, nobody can believe you. You are losing time and you create an atmosphere of lies and defiance. Bluffing will be the rule.

If, on the contrary, you start your negotiation/mediation on a pleasant tone explaining your confidence in the process to lead to a solution that all parties need, the atmosphere changes to one of openness and good faith.

Here is a funny example. It comes from a mediation but the principle is the same.

My friend Claude Amar was in charge of a mediation in which both opposing lawyers started by affirming that they were quite confident that they would win the case. Claude then turned to both parties with a large smile and asked them what they were doing here. Taken aback, both parties replied that they were here to find an amicable solution through mediation. With the same smile, my friend explained that he thought this was a strange idea as in mediation they would have to make concessions whereas, in court, they would win… both of them!

Of course both parties could only smile. All the blockages due to bluff disappeared and a solution could quickly be found.

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Relationships within the Conflict

Transactional Analysis

Transactional Analysis (TA) gives us a useful description of the relationships within the conflict.

It was originally invented as a therapy at the end of the 1950s by the American psychiatrist Eric Berne.

It describes typical attitudes that we adopt in our relationships with our partners. This description can then be very useful to negotiators and mediators to understand relational problems, which may exist between the parties.

THE BASIC CONCEPT

TA is based on the concept of Ego-States. Confronted to another person, my ego will put itself in a specific state. There are three elementary states: Parent, Adult, Child.

The Parent State

We are in a Parent state when we adopt a dominating behaviour toward the other person. For instance, when we tell someone: “Consider your interest…” In such a case, we speak to the other as a parent speaks to a child, who needs support to properly defend his interest.

A Parent can be:

• Nurturing: he offers, comforts, reassures, encourages etc.
• Controlling: he gives orders, says what is good or bad, criticizes etc.

The Child State

We are in a Child state if we say: “Thank you for your proposal”. We express our gratitude toward a nurturing Parent, who made a proposal to us.

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The Child can be:

• Adapted: he complies with his Parent’s instructions, he is grateful for what is done for him (as above).
• Rebellious: he systematically challenges everything he is told without caring for consequences: “Do you think that I am going to believe this?”
• Free: he is guided by his emotions without worrying for the reaction of the others: “That’s funny!”

The Adult State

The Adult state is the state of the Ego in which the emotions are the weakest. It allows a dialogue in which the differences of perceptions are small. It then allows one to swiftly move to the essential interests in the negotiation/mediation.

TRANSACTIONS

When two people enter into a conversation/negotiation, they establish a “transaction” according to the TA vocabulary.

Types of Transactions:

• Straight/complementary
• Crossed
• Hidden

Straight or Complementary Transactions

A simple straight transaction takes place when both partners address each other in a way, which is consistent with the Ego-State of the other.

1. Did you draft the report? (Adult to Adult)
2. Yes; I am going to send it to you right away. (Adult to Adult)

1. How about not going to this meeting and going to the movies with me? (Child to Child)
2. Good idea. I am tired of working. What are we going to see? (Child to Child)

1. You should have cleaned your room at this time of the day! (Parent to Child)
2. Stop repeating that to me. I’ll do it later (Child to Parent)

These transactions can go on forever because both parties feel good in their roles.

Crossed Transactions

Communication problems and conflicts are generally caused by a crossed communication in which the partners behave toward each other according to an Ego-State, which does not match the Ego-State of the other partner.

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1. Did you draft the report? (Adult to Adult)
2. Stop repeating that to me. I’ll do it later (Child to Parent)

This is a crossed transaction, which will probably cause trouble in the company. One could answer in Parent to Child mode. For instance:

1. If you go on, I’ll fire you.

1. Did you clean your room? (Parent to Child)
2. I am just going to do it (Adult to Adult)

This crossed transaction is more positive. But there is a risk that A will feel humiliated by B’s responsible behaviour and the conversation may go on like this:

1. I can never trust you to do things on time! (Parent to Child)
2. Why don’t you ever believe what I tell you? (Child to Parent)

Hidden Transactions

Hidden transactions are a type of transaction in which the explicit transaction, supposedly logical, is hiding an emotional parallel conversation.

For example:

1. I need you to stay late at the office with me tonight (Words of Adult). The non-verbal language shows a sexual intention (Free Child)
2. Of course! (Adult to Adult). Wink (Child accepting the hidden motivation)

The relationship between two parties opposed in litigation is a typical crossed transaction where each party is in a Controlling Parent state (I am right) and treats the other one as a Free Child (he is wrong).

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It may happen that both parties do not have the same perception of their transaction. Here is what the manager feels when he speaks to his staff who is reluctant to act as requested:

These are two crossed transactions, which will probably lead to a dispute.

The condition of a negotiation/mediation is that parties become able to have an Adult-Adult relationship.

Transactional analysis very well describes our way of playing roles with each other, our way of racketing others by pretending to be in a position to allow us to be in another one, etc.

It particularly describes the Drama triangle. The drama triangle, also called Karpman’s triangle or conflict triangle, is a structure of transactional

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analysis proposed by Stephen Karpman in 1968, which evidences a typical relational scenario between the Victim, the Persecutor and the Rescuer (these roles being symbolic, the same person can change roles. This concept tends to show that when someone plays one of the roles (for instance the Victim), he induces the other party to play a complementary role (the Rescuer or the Persecutor).

It also allows us to approach some situations in a systemic perspective. That means to try and understand which role the person plays in the system (family, business etc.) in which he evolves.

The description of the full contribution of TA goes way beyond the purpose of this book but I encourage readers, who may be interested, to go further into it.

But TA does not explain how to move or how to help others move from one state to the other, which is one of the conditions of a successful negotiation/mediation.

Actually this is a triple question:

1. Why do I play this role?
2. Why play another one?
3. What should I do to move toward an Adult state?

The analysis of needs that we did earlier will help us create techniques to this effect.

Negotiator or mediator, we have a lot to gain by asking ourselves in which Ego-State each party is vis-à-vis the other one(s) and if this positioning is adequate.

For instance, in negotiations between a large company and a small business or a consumer, the weakest party often tries to give lessons (Controlling Parent) to the large company (threat to go to court, to speak to the press, etc.). Both of these behaviours are intolerable for the representatives of the large company because they challenge the identity of their company, and consequently theirs. The only possible behaviours reside in either placing oneself explicitly in the position of an Adapted Child (Victim) and to give the large company the role of the Rescuer (Nurturing Parent), or to place one self on equal footage (Adult) by describing the situation as it is, and then to express one’s emotions and needs to place (hidden transaction) the large company in the Nurturing Parent position and obtain what one needs. This is what is known as Non-Violent Communication.

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Conclusion on Conflicts

The science of negotiation was born in 1981 thanks to Ury and Fisher.

This science is still in its infancy when compared to military sciences, legal procedural rules and the many techniques for fighting against one another.

I am perfectly conscious that the descriptions above are to what our understanding of conflicts should be in the future, like what pre-historical paintings are to Mona Lisa.

But I believe that it is already suggesting some conclusions, which may be important for the management and the resolution of conflicts and that these conclusions are revolutionary compared to what we spontaneously do.

1. The existence of conflicts is normal and healthy. We should not avoid conflicts. We should allow them to produce their positive effects and try to limit their negative effects.
2. The emotional dimension of conflicts is fundamental. It should not be seen as an obstacle to their treatment but as a source of energy to create solutions.
3. There will not be any solution on interests as long as the emotional dimension has not been treated.
4. The most beautiful intellectual construction will not be a solution if a strong positive emotion is not associated with it.
5. Bargaining on positions is the worst way of negotiating:
• It blocks the negotiation/mediation;
• It only allows constraint or distributive solutions;
• It prevents the construction of creative solutions (win-win and cooperation).
6. Beyond emotions one should negotiate on interests and not on positions.
7. Power in negotiation does not derive from violence. It comes from the parties’ respective BATNAs and from their ability to create a positive emotional climate and a new vision of the problem.

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