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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
by Thierry Garby
Negotiation/mediation is a conversation, in other words it is an exchange of information intended to resolve a problem.
To allow it to happen we should ensure that:
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Chapter 1
Identifying Relational Problems
The identification is often easy: when two parties do not speak the same language, when they cannot reach each other by telephone or e-mail, when they shout at each other as soon as they meet, when they refuse to meet to speak to each other, etc.
There are then two types of difficulties: technical and emotional difficulties. There is no need to spend much time on technical difficulties, which will, most of the time, receive a technical solution.
The situation is very different with emotional problems.
What are those difficulties? Here are several anecdotes, which may help us understand their nature.
SOME ANECDOTES
The Seashell
M. Fabrice Vert, a judge in the court of appeal of Paris, and in charge of mediation for the Court, tells this great story:
It was a difficult case between two brothers for the succession of their father who left them a significant fortune. The parties were multiplying the procedural problems. On the occasion of one of these procedural hearings, the parties came in with their lawyers. The two brothers and their counsels were coming to have the court appoint financial experts. The brothers were there to make sure that their lawyers would be tough in this legal battle.
Trying to pacify the situation, the first thing was to listen carefully to the parties and to allow them to express their emotions while maintaining a respectful debate. Of course, this takes time.
I could not understand this case because from a legal point of view there was no real problem. The distribution of the asset was not a problem. There had to be something else.
After a while one of the parties explained: “One day my brother went to my mother’s house and took a cabinet and removed it. There was a seashell in it”. The lawyer of the other brother started shouting: “This is ridiculous! Are we now going to discuss seashells?” “Your clients are here to speak. Let them speak!” I answered. I then turned to the plaintiff: “If I understood you properly, a seashell can have a sentimental value. But it may be time to overcome this problem…”
Actually this seashell problem was at the origin of this hatred between the brothers.
Following this moment of tension, I explained the advantages of mediation, which seemed appropriate to clarify the relationship between the brothers.
The mediation was accepted and reached an agreement.
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Looking back, we can easily understand the problem: this seashell was the crystallization point of the frustration of one of the brothers. He did not care for the cabinet or the other assets of the succession. Only the seashell mattered to him. The fact that this seashell had been taken without his consent was, according to him, indicative that his brother never had any respect for him and his feelings. He was fighting to obtain this respect or to make his brother suffer as he had suffered.
A Painful Delivery
A lawyer mediator, who specializes in mediation of medical malpractice, told me a story that goes even further.
A lady who had given birth with an epidural anaesthesia was complaining that she had suffered terribly when she was giving birth and a long time afterward. This intolerable pain compelled her to stop working and she even went into depression. It also had very difficult consequences for her husband. Actually the whole family went into depression and the first birthday of the child had not even been celebrated because it recalled too much suffering. This lady was therefore claiming considerable damages.
After she had told her story, the obstetrician was invited to speak. He started by saying how much he and his team were sharing the pain of the patient, how sorry he was and how much he wanted to explain what he thought was the cause, and finally assured her that the necessary measures had being taken so that this would not happen again.
But before explaining things, he wanted to express that there was a difference between the story the lady was telling and the medical file, as well as his very clear memory. The patient did not suffer when giving birth, nor later in the day and not even the day after. It was only on the third day that she started to complain about pain.
This remark was sustained by the husband who reminded her of pictures taken on that day and the day after on the occasion of visits by the family and showing that she was doing really well. The patient more or less admitted this, but explained that it did not change anything in the situation.
The doctor then asked the anaesthesiologist to explain what happened. The anaesthesiologist explained that he had used a new product and that it was then discovered that this product could create hallucinations. These hallucinations could possibly take the form of visions. In this case there was a hallucination of pain, which meant that the pain was not due to a physical lesion following the delivery, but to the side effect of this product. He specified that, of course, this product was not used any more.
After this explanation, the mediator asked the patient what her intensions were. She asked to be given two weeks to answer. After two weeks, she didn’t call back. Actually she never called back and the mediator had to call her. The lady could not even remember who the mediator was and why she was calling. After the mediator had reminded her, here is what she answered:
“They explained. So there is no problem anymore. I just wanted to have an explanation and to make sure that the necessary measures had been taken. By the way, I should announce to you that I am pregnant.”
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More or less consciously this lady, beyond the painful episode due to the product, had inflicted the suffering of depression on herself and her family, including the child, and then she had started this court proceeding to be able to draw the attention of the doctors to her case. But at the time of the mediation, she was not conscious that she was only trying to obtain explanations, otherwise she would not have maintained the claim for damages in mediation and she would have left the room satisfied without asking for a period of reflection. Unconsciously she was not interested in money but in consideration.
Consideration meant:
The problem was not a problem of money. It was a relational problem with her doctor, who had so far not explained anything and left her alone with her pain.
The relational problem having been treated, the liability problem disappeared though, from a legal point of view, it could still have been discussed.
The Family Bank
This lady comes from a wealthy family in the Middle East. She came to Europe many years ago and married a European. She had opened an account in the same bank where her family had their accounts in the Middle East.
When she retired she had little capital. She had asked her bank to advise her on an investment without risk. The bank advised her to invest in a particularly safe fund. She had the right to change the fund whenever she wanted.
After some time, she received a letter from the banker suggesting to move to another fund, which the banker explained, according to the client, did not imply any risk.
A few months later, the investment had lost 20% of its value. The client asked the bank to compensate her but she was rebuffed as the bank explained that she had received full information. This lady had gone to court and I was appointed as mediator.
It took a long time to organize the meeting as this lady was ill and when she came to mediation, which implied a difficult trip for her, she was accompanied by her husband, who was helping her walk. In front of her was an in-house counsel of the bank and an attorney (probably not the best choice to manage a client relationship…).
When the lady finished telling her story, the bank’s attorney spoke with vigorous words to tell her that she was not entitled to anything. I was a little shocked by his lack of respect for this old lady and I interrupted to ask the lady a question. I asked what the position of her capital was today.
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As of that day, this lady explained that her capital was 20% above its initial value. As I asked what her claim was, she further explained that she had no financial claim.
Then I asked her why she had wanted to come to mediation.
“It is because I wanted to tell this bank that it has been my family’s bank in the various countries where we lived, and this had been so for almost a century, and it is not normal to treat their clients as I was treated. I have nothing against the bank. I still love it. By the way, madam, she said to the in-house counsel, I would like to shake hands with you. But this employee, who made me change to the other fund, stating that there was no risk, dishonours the bank and I wanted the bank to know it. And I would also like to change the fund again and move back to a fund without risk.”
The change of fund was no problem; she just had to go to any of the bank’s offices, which she did after leaving the mediation.
In this case as well, in the eyes of the claimant, the relationship was fundamental. Of course, if the loses had increased, she would have asked for compensation. Though there was no loss at the date of the mediation anymore, she had paid the mediation fees and she had taken this difficult trip to take part in the mediation, in order to resolve this relational problem. Moreover, though she could perfectly return to a contract without risk, she had remained in the risky one, which could have created new losses, in order to have this conversation, which seemed more important to her than the money.
Conclusion on These Anecdotes
These three anecdotes represent extreme cases but they show the importance of the relationship.
One cannot ignore the needs, which are expressed by the party who poses the problem. These emotional needs must be treated in order to allow the interests to then be discussed.
In the first case, the ability to express the frustration due to the loss of the seashell opened the door for an amicable settlement. I imagine that the brother, who had taken the seashell and probably thrown it away, must have expressed his regrets and that an explanation took place on their relationship that allowed them to find a solution, which, according to the judge, was relatively simple.
In the second case, the treatment of the relationship was enough to make the financial problem disappear.
In the last case, the relational problem survived the disappearance of the losses and, in the eyes of the client, needed this mediation. In this case, one can imagine that the bank’s in-house counsel was quite astonished. She could not have cared less about this lady’s feelings toward the bank. For the client it was very important. We may wonder why. It may have been linked to her own relationship with herself and with the past of her family. If the judge had not been wise enough to suggest mediation, this lady would never have had an opportunity to express what she strongly felt. She would then have been caught in proceedings which would have ruined her as
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whatever her chances of success on the principle, she could not obtain anything if she was not losing on the contract.
HOW TO RECOGNIZE A RELATIONAL CONFLICT
In all of these cases, and one could quote many other ones, the relational conflict has some fundamental characteristics which allows it to be identified.
The Relational Conflict Is Based on a Persistent Emotion
The relational conflict is not linked to what is happening around the negotiation table. The occasional emotions make the negotiation/mediation difficult, but quickly disappear. It is due to the resilience of more or less ancient emotions.
Depending on the age and the violence of the original emotion, the problem will be more or less easy to treat.
The Conflict Is Unilateral and Possibly Double Unilateral
The emotional frustration is by essence personal or internal to the organization. A party is angry with another one and this party demands that the other one takes this emotional frustration into account to be able to enter into negotiation/mediation.
There may be frustrations on both sides. Think of the wife who is frustrated by the indifference of her husband and of the husband who cannot stand that she keeps begging for kisses.
This difficult relationship is not one problem but two.
The request for affection and for evidence of affection calls for an answer. The exasperation because of the repetition of the request calls for another answer.
Relational Conflicts Bring People to Harm Their Own Interest as Well as the Interest of the Other Party
To have its emotional problem taken into account, this party must bring the other party to do so. This will usually be done by blocking negotiation until the other party considers the problem. It is often an awful strategy because it exasperates the other party who has no hope or desire to agree with the first one.
Making the others suffer by blocking the negotiation is also a rather tempting form of revenge for this party.
Finally, according to a strategy well known to the psychologists, by inflicting pain on ourselves, we hope to attract the attention and the compassion of the other party.
The Party with a Problem Often Denies Having One
Having a relational problem means that you consider that you are not properly treated. Admitting that you are not properly treated is admitting that you have let another mistreat you. This places us in an inferior position with regard to the one who is mistreating us and that, in a way, justifies his mistreatment and, at the very least, is a lack of respect.
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We deny the problem when we are asked the question:
“Are you angry?”
“Not at all.”
“So what is the matter?”
“Nothing. Everything is fine.”
This can go on for a long time.
The one acting this way wants to obtain the attention of the other but also wants the other to suffer by his behaviour and fall on his knees to beg that the problem be resolved. He wants to take power and at the same time he refuses to enable himself to do so by saying what is wrong.
The Relational Conflict Creates a Rebellious Child-Parent Relationship
The party with the emotional problem places itself in a Rebellious Child state. He refuses to move to an Adult state to resolve the conflict. He keeps taking positions, which prevent the resolution. Once again this can be a bilateral.
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Chapter 2
How to Treat a Relational Problem
There are two ways to treat a relational problem:
WORKING ON THE RELATIONSHIP
When the relational problem is basically technical, the solution will be technical: reconnect the telephone line, go to his home, etc.
Working on the relationship will be much more difficult when the problem is emotional. As the anecdotes above showed, the party raising the emotional relational problem first needs to be heard. He behaves as such in order to be heard.
The person raising the difficulty wants to be begged. He acts to take power over the other person though he only wants compassion.
It is extremely difficult to face this kind of situation. Fighting will only increase the resistance and make the resolution even more difficult.
“Why do you refuse everything you are offered?”
“Because you never make me a reasonable proposal.”
So, what do you want?”
“As if you did not know…”
“No, I don’t know. Do you want everything?”
“That’s typically you. As soon as you don’t like something, you make the other one look ridiculous. You despise everyone. You are the only one with the truth.” Etc.
Here is how you can try to re-establish communication.
Enter Into the Other One’s Game
You need to enter into the other one’s game:
“You feel that I despise you?”
“Me like everyone else, yes.”
“What did I do or say which makes you believe I despise you?”
“I just told you but as usual, you don’t listen. You just said that I wanted everything! You very well know that it is not true.”
“This was not despising. It was an attempt to make you say what you want.”
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“So! You have a funny way to start a dialogue. First you make the other one feel ridiculous and then you would want him to smile at you and do everything you want.”
“I am not asking you to do what I want. I am asking you what you want so that we can discuss it. If you understood my question as a sign of contempt, please excuse me. It was not my intention. I wanted to know your intentions in order to look for a solution together.”
“Maybe this time, this was your intention. But I am used to see you treat me as stupid…”
“What are you talking about?”
“As if you didn’t know…”
“No, I don’t know. Tell me what I did that made you believe so.”
This kind of dialogue is exhausting. We feel humiliated because we feel attacked. But we need to accept this process of listening to the other even if what he says sounds totally ridiculous. And this will have to go on until this person understands that you are actually ready to respectfully listen.
Use Non-Violent Communication
At this stage of the dialogue, we will have to move to non-violent communication.
“When you tell me that I am trying to make you look like a fool, I am sad. I need to understand because I only have affection for you and I want to avoid hurting you. Tell me what’s wrong between us in your opinion.”
We have to be strong to not feel humiliated when we have to recognize that we may have hurt someone. We also believe that this will make us weaker in the negotiation/mediation whereas, on the contrary, we make it exist, which is a great achievement.
In order to reach this goal, we must understand that aggressiveness always derives from a feeling of weakness. Aggressiveness is a sign of weakness, masquerading as strength. Watch the movie “12 Angry Men” and pay attention to the juror, who is the last one to admit that the young man is innocent. He is the weakest person in the jury. The unhappiest. He is a wounded man in the deepest part of his being. As a result of that he is the most aggressive, using rude language and even being to be tempted to kill the juror who thinks that the accused may be innocent.
The Jujitsu of Negotiation
Like in martial arts, the idea is to use the strength of the other party. Avoid attacks. Do not reply to insults or verbal violence. Move to the aggressor’s side. Show compassion for his trouble. Let him express himself.
The only expression of his anger may often be enough to make the problem disappear. If it is not, compassion, the affirmation that you had no intention to harm and an apology for the case your words or behaviour may have actually caused harm, should suffice. Remember the story of the 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?
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Elizabeth: You perfectly know 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 it. You’re right. I got angry. Let’s leave this orange where it is and let’s go for a walk together.
Go to the Balcony
To reach this result, William Ury1suggests going to the balcony meaning to see things from above and from a distance. This allows you to feel protected from aggression and to perceive the weakness of the aggressor.
When you will have brought the aggressor to admit his pain, you will have to do something to satisfy him. Most of the time, words will suffice, if it is only about feelings. The expression of your compassion and of your desire to remedy the situation will make any remedy unnecessary.
Of course, if there is a financial reality behind the frustration, the resolution of the present problem will have to include the resolution of the old interests problem.
All is easier said than done. The moves I just described are extremely difficult for the victim of the aggression because it requires a lot of moral strength but also because the resistance of the aggressor quickly gives you a feeling that nothing can be done.
This is why mediation is so suitable in such cases. But in some cases, it is simply impossible to solve the problem.
The party who claims to be mistreated may not wish to resolve the problem. The conflict creates a sort of comfort. Claiming to be a victim and making any solution impossible may be easier than recognizing one’s own errors and acknowledging their consequences.
As a lawyer I had to sue debtors who preferred getting ruined than negotiate and lose only part of their fortune. In all cases, these were people who had had a brilliant career and who, at the end of their career, had made a bad deal. This bad deal must have cost them half of their fortune. Rather
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than negotiating they went into endless negotiation with the banks. This litigation cost them a lot of money while increase interests were running. At the end, they lost their cases and were totally ruined but they never accepted to sit at the same table as the bankers they were calling thieves and crooks, in order to negotiate a honourable issue.
Until their death, they claimed that they were ruined victims of the banks rather than admitting they had made a mistake in order to keep on living a comfortable life with half of their fortune.
To them it was more important be able to keep on claiming that they were right and that the banks were wrong than to lose their money. They needed to remain in this bad and violent relationship, which was more comfortable than admitting to be wrong and saving their money.
The Limits of Negotiating Techniques for Relational Problems
All the techniques described in this book also have their limits.
When facing a systematic resistance to an agreement or to negotiation, you must try to find the reason for this resistance. If you succeed, be patient, try to build the other party’s confidence in your ability to help him in his confusion. If you are unsuccessful, ask yourself if you haven’t done all you could or if the other party does not wish to find a solution and prefers remaining in the same situation.
If you reach this conclusion, put an end to your efforts (until the next opportunity…). If you reach the opposite conclusion, persevere!
Use a Third Party
If you cannot resolve the problem yourself by working on the relationship, you will need to ask for the help of a third party.
Once again, the third party will be a technician if the problem is technical: if the other party does not speak the same language, you will need an interpreter etc.
If the problem is emotional, you may ask someone to act as a messenger between you.
This idea is at the origin of a mediation technique consisting in an attempt to communicate without resolving the relational problem. This technique is mainly used in the United States. We will discuss it in the mediation part of this book.
If both parties want to overcome the relational problem, they may use mediation in its European approach that is where the mediator will help the parties resolve the relational problem prior to discussion the dispute.
In other words, the intervention of a third party only makes sense if he is given a mission: translate, send a message, help the parties reconcile, facilitate their dialogue, etc.
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Chapter 3
Identifying Information Problems
It is critical that both parties have all the information, which is necessary to deal with the problem.
It is unfortunately very difficult to ensure that the other party has it and even sometimes that we have it.
OBSTACLES TO THE DISCOVERY OF THE LACK OF INFORMATION
We do not like to admit what we do not know. It humiliates us, and even more so if we believe that the other one knows. We then try to hide our ignorance. We try to hide it from the other party but we do it so well that we end up hiding it from ourselves. We skip it and forget that we do not know. It is reassuring.
If you claim you know and do not make a big mistake, the other party will go on in the same direction thinking that you understand and the further he goes the less you will understand. There will be a time when you will have to admit that you do not understand due to your ignorance. You will then have lost face and the confidence of the other party, who will probably not want to deal with you anymore.
Ignorance makes us act aggressively. We are angry at ourselves because we realize that we are not at the level of our task and this anger is often turned toward the other party.
We also become aggressive because, as we do not understand what this is about, we very legitimately do not trust the other party. We act as if the other party was trying to deceive us and we become aggressive because the best defence is to counter attack.
This tendency to ignore our ignorance is even worse in litigious situations because, as litigation tends to reduce our scope, we simply do not see that we lack information.
Supposing that we admitted this lack of information, it is sometimes difficult to remedy it.
Because parties are interested in the solution of the dispute, they are unlikely to be believed by the other one. In most cases, one party will not be able to deliver the information they have and that the other one misses, because the other one will refuse to take it into account.
Information problems are often encountered in business/consumer disputes. We do not have the knowledge, which would allow us to negotiate with our doctor, our lawyer, our mechanic and our information system provider.
HOW TO DETECT INFORMATION PROBLEMS?
If you ask the other party if they know, they will almost always say yes because they will be ashamed to admit the opposite and if they admit to themselves that they lack information, they do not want to receive it from you, who may give them poisonous information.
In order to bring the other party to recognize and possibly admit their ignorance, the last thing to do is to ask them if they know or if they do not. You should also not let them think that you believe you know better than them.
The best is to present the question as joint research and show that you are ready to share your information: “The competition by X worries us a lot. We tried to measure their implantation, to get information on their projects and to forecast the evolution of the market. I imagine you did the same. It may be interesting to compare our information”. You may also discover new information and learn how they interpret the information they have and thus how they react to your own ideas before and after you have given them the information you have.
Other possible questions:
This exercise is intended to bring the other one to admit the most difficult thing: “I don’t know.” You must then do everything you can to make this as painless as possible and to create positive emotion around the question as much as you can.
Do not forget to admit your own ignorance. This will give them the impression of being on equal footing with you and will reassure them.
These methods also allow you to check the validity of your information or to receive some information without risking (too much) to be fooled.
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Chapter 4
How to Remedy Information Problems
Once an information problem has been detected, we will have to remedy it.
The normal remedy will be to allow the party who is missing the information to obtain it.
But we have already seen that it is not always possible because this party may not have a sufficient initial education to understand the technical information. It may also be that the information is not available: it can be confidential or secret. It may not even exist if it is pertaining to the future or to unresolved scientific questions.
TWO ANECDOTES
Here are two anecdotes to illustrate this situation.
The Driver and the Mechanic
A car owner goes to the garage in the morning to have his car serviced, expecting to pay about €300 in the evening and in fact faces an invoice of €800 in the evening. The mechanic gives them all sorts of explanations to justify the invoice. The client does not understand anything. This is a typical information problem.
One day when I was teaching this example, I saw one of the participants start to laugh. I was surprised because the story is not very funny. I asked him why he was laughing and here is our dialogue:
Participant: This is exactly what happened to me yesterday. I dropped off my car for service before coming to the training. In the evening the mechanics produced an invoice of €800 when I was only expecting it to be €300.
TG: So what did you do?
Participant: Of course I protested!
TG: What was the answer?
Participant: He gave me all sorts of technical answers that I did not understand.
TG: And then?
Participant: I told him that he should have asked me before making such expensive repairs. He said that I had told him that it would not be reachable as I was in training and that he thought that these repairs were urgent and that he should make them even without my prior agreement.
TG: What did you think about that?
Participant: Not much. As I could not understand the technical explanations, I could not appreciate if there was really a risk that justified this urgency. So I protested in a way that was not exactly nice.
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TG: I guess that you finally paid to be able to have your car back.
Participant: No! My mechanic is far more intelligent than that. He took me to his office and opened the maintenance manual of my car. He showed me that for this repair there had to be a number of spare parts of a certain cost and a number of hours of work at a price determined by the manufacturer. The total was €800 so I accepted to pay the bill.
TG: As a matter of fact, your mechanic was not explaining properly and you could not understand. On the contrary, the maintenance manual was clear and you understood everything.
Participant: (after a moment of hesitation) Actually no… I did not understand any better. There was nothing to prove that my car actually needed this repair or that the repair had actually be done but I became confident and I paid.
TG: What is it that you had confidence in?
Participant: (after some thoughts) I was confident in the manual as it was coming from the manufacturer, who is the best qualified to know what is appropriate and also because it was drafted independently from my case. And I also trust that the mechanic because I thought that if he was ready to reveal his own sources, he had to be an honest man.
The Air Combat Simulator
When I was a lawyer, one of my clients was a foreign company, which had created an air combat simulator. This simulator was working perfectly well and was much cheaper than the one the French army used.
My client wanted to sell this device to the French army but the French army said that since secret information pertaining to its fighters had to be integrated into the device, it could not purchase it from a foreign company. The army suggested that my client create a joint venture with a French company, which had this information and was authorized to use it, in order to deliver the full system without having the foreign company access the secret information.
That was done and the simulators were delivered to the full satisfaction of the French army.
A year later, my client discovered that its French partner was offering exactly the same product on the market without their involvement. They asked me to introduce a complaint based on the violation of their rights to the program, which the French company had very likely copied.
When we started the negotiation, the French company explained that the software programme in its device was secret so that it was not possible for them to show it to my client to ascertain that it was not a copy of theirs. Here was information necessary to the resolution of the dispute and that we could not obtain. We then had to replace information with trust. How could we do that?
We found an expert, who was entitled by the army to have access to secret information and who was trusted by both parties. He was given a mission: look at both programmes and come back to us saying only if it was copied or not.
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These two examples illustrate a general rule: if a party cannot, for any reason, obtain or understand the necessary information, the information must be replaced by confidence.
Knowing this, when an information problem is detected, one should act in several phases:
THE AGREEMENT ON THE RELEVANT INFORMATION
You must undergo an operation and the anaesthesiologist asks you if you prefer a local or a general anaesthetic. It is the first time he will have put you under anaesthesia, you have no information to answer the question.
You should know about the anaesthesiology techniques to answer. But it is impossible to give you all this information. Even if you had the basic education, that would take you years to learn. You must then forget about the idea.
But you can identify some information, which would be necessary and sufficient to help you make the decision:
If you are able to identify the relevant questions with your anaesthesiologist, he may be able to give you answers that you will understand and you will be able to make your decision.
Imagine that someone told you that the risks vary with the product he will use. You will also want to know what your doctor wants to use. If he refuses to answer this question and simply answers: “Don’t worry I use one, which is not dangerous…”, you may worry a lot more and decide to go see another anaesthesiologist.
Both parties must make this determination of the relevant information together. If the parties have a different definition of this information, you will not be able to move forward and this may prevent any negotiation/ mediation.
Thus it is not sufficient to recognize one’s lack of information. You will also have to determine together the relevant information to resolve the problem. Recognize: “I know nothing about mechanics”, does not mean that you have to learn all about mechanics. It will probably be enough that you limit it to the relevant information: “I need to know what a cylinder head gasket is, what the use of it is, if mine is damaged, what the consequences can be and how much would the repair cost.”
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Because you have, at the previous stage, made the research for information a common task, this determination of the relevant information must be made together and become an agreement between the parties.
THE AGREEMENT ON THE PROCEDURE TO OBTAIN INFORMATION OR CONFIDENCE
When one party knows something and the other does not, it may seem logical that the one who knows informs the one who does not.
Unfortunately this is not always so simple.
The one who knows may be suspect in the eyes of the other because he is interested in the outcome. He is not neutral. He may give biased, if not wrong, information to obtain what he wants.
In most cases, the one who does not know will want to use an independent source. Then the one who knows will want the other to use a reliable source.
“I’ll have a look on the Internet” is certainly not satisfying for the one who knows because one can find anything and the opposite on the Internet.
Both parties need the source of information to be reliable in the eyes of both.
Remember the anecdote of the client who wasn’t happy with the invoice of his mechanic. The mechanic offered a procedure: to look at the maintenance manual published by the manufacturer and this procedure was accepted. For the air combat simulator, the procedure was to use an expert to replace information by confidence.
If the client had said: “I will ask my brother-in-law”, this procedure would not have been acceptable to the mechanic. He would have questioned the brother-in-law’s expertise and impartiality.
The validity of the source is just as important for the party who has the information as for the one who does not have it. They then have to agree on this procedure.
IMPLEMENTATION OF THE PROCEDURE
When you only have to check in a book, the implementation of the procedure is no problem.
It is different if you have agreed to have an expert survey. Lawyers know that an expert survey may be as difficult as a court case, if not more. In our amicable process, which must lead to the opening of a negotiation/ mediation, the parties will have to actively collaborate to reach a result.
Here is an example: A young model who had never posed for photos, had negotiated her remuneration directly with an announcer, who had the photos made and who used them. When she saw the extensive usage of the photos, the model felt she had not been paid enough and the case came to mediation.
I soon realized that neither of them knew how the remuneration of a model should be determined. They did not even know that there were tariffs. They decided to use a procedure: to use a tariff published by a professional association of model agencies.
When they had this tariff in hand, they realized that it was so complicated that they were not able to use it.
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They then changed their agreement on the procedure. They agreed to ask the president of this professional association of model agencies to come and explain how to use it.
The president came, but, due to the number of variables, the parties still had problems. They then decided another modification of the procedure and asked the president to give them a calculation range between the highest and lowest evaluations of these variables.
In this case, both parties ignored even the existence of the information (the existence of a tariff). But the problem would have been the same if one of them had known it.
The whole process of researching the information is not a unilateral process but a common enterprise of the parties. The knowledgeable party must collaborate in the research (or be ready to do so) if the other party wants to act alone to be assured of the independence of the source. At least, it will always have to approve the conclusions.
THE POSSIBLE AGREEMENT ON THE USE OF THE INFORMATION
In some cases, like the one of the model and the announcer where the answer is not black or white, it cannot be taken as such to go on with the negotiation/mediation. The parties will have to make a third agreement about how they will make use of the information they will receive.
They could thus have agreed to retain the lowest or the highest figure, or the average in the range the president would have given. In this case they agreed to resume mediation within this range.
CONCLUSION ON THE RESEARCH FOR INFORMATION
This initial stage of research for information may seem long and boring. I would not be surprised that some readers would consider skipping it altogether.
It would be a serious error. I already stressed the importance of information and how its ignorance may ruin a negotiation/mediation.
There is more.
The process I just described (acknowledgement of the lack of information, agreement on the relevant information, agreement on the procedure, common implementation of the procedure, possible agreement on the use of the information to be obtained) creates an initial collaboration between the parties.
The benefit that the parties get from this process is not only due to the information they obtain but also to the relationship it creates between them. The common research of information or of the means to create confidence, creates a collaborative relationship, which will then influence the rest of the negotiation/mediation and make it much easier.
Nevertheless, I can easily admit that things would be easier if you could give the information yourself. The question is how to give it so that it will be accepted.
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HOW TO GIVE INFORMATION
Giving information to someone is not easy. Our brain is made in such a way that when someone gives us information, we immediately doubt it. If I tell you: “Nice weather today!” your eyes will immediately move toward the window to check if this is true. Actually the same phenomenon happens with information as in negotiation on positions: any affirmation generates negative energy.
This is even truer in negotiation/mediation where the information you give is suspect due to your interest in the matter.
One has to find the means to avoid the rejection of the information and of making it trustworthy. With this in mind, we are going to use two techniques: create an aspiration and use a third party.
Create an Aspiration for Information
Once again I must refer to “12 Angry Men”. Apparently all the pieces of evidence submitted to the jury are accusing the young man of having stabbed and killed his father. But one of them, Juror 8, (played by Henry Fonda) makes it clear from the beginning that he has a doubt about the culpability of the accused and he will slowly make everyone change their minds. The movie ends on a unanimous verdict of not guilty.
To overthrow the evidence, Juror 8 has some information. His colleagues are not ready to listen to him initially due to the reflex I just described of systematic rejection of any information received, and also because the accumulation of evidence has convinced them that the boy is guilty.
There is a particularly strong piece of evidence. At 4 pm, the boy bought a flick-knife with a carved handle and blade. It is rare and easy to recognize. The man from whom it was bought said that he had never seen another one like this. And the father was stabbed by a knife like this one. The son, when he was arrested, did not have the knife he had bought and said he lost it through a hole in his pocket.
This explanation is not convincing and it seems clear that the son killed his father with the knife he had just bought.
Juror 8 asks the following question: “Is this an absolute proof? Isn’t it possible that someone else would have killed the father with the same knife?” Of course everyone else protests. Henry Fonda keeps asking the question.
Henry Fonda then stands up and takes exactly the same knife out of his pocket and sticks it into the table. After a moment of surprise, he explains that the night before he took a walk in the area where the young man and his father lived and found it in a shop where he purchased it for six dollars. Someone else could have done the same and killed the father with it.
The usual behaviour would probably have been to say: “The father may have been killed by someone else with the same knife because I saw one for sale at this address…”. Everyone would have challenged every term of this proposition. In the best case, one would go and see if it is true that such a knife is for sale but, as it is unlikely, the information, which would have been
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understood as an argument intended to put pressure on the rest of the jury, would have been rejected and quickly forgotten.
The demeanour of Juror 8 is the opposite. He starts by asking questions. This is actually what he has been doing since the beginning of the film. He never affirms anything. He only raises questions.
When everyone is concentrated on his question, he produces the evidence. Once the evidence has produced its effect, then he can conclude: “It is possible!”
Later, in order to show that an old man could not have seen the young man running away, he will use the same method. He will not state anything. He will study the plan of the apartment to measure the distance between the bed where this old man was sleeping and the door. He then tries to walk as slowly as the old man. Finally he walks the calculated distance at that pace to see if the old man could actually have walked that long before the young man had gone. Of course, the experiment will show that it was not possible.
By doing so, he generates questions. With questions present in people’s minds, he does not simply deliver it. He involves the other jurors in his research. Then he produces the evidence. As a result of that process the result is not “his conclusion” that he would impose on them. It is the common result of a shared research.
This method is the one we should always use whenever we try to pass information to someone and try to convince. It is useless to repeat or raise your voice.
To be heard, you need:
Making the other party want to be informed means bringing him to ask himself questions. It may be enough to ask him the question: do you know what the circumference of the earth is? But this kind of question may be badly received as it implies that the one asking the question knows and that he supposes that the other one does not. His Parent posture calls for a Rebellious Child answer.
Even if you know the answer, it may be more appropriate to say: “Now we need to know the circumference of the earth. How much is that?”
You will then go on the Internet, show him the answer before saying: “40,075 km. Is it okay to start from this figure?”
Giving Credibility to Information through a Third Party
Because you are a party and you have an interest in the matter, the information you give is fundamentally suspect.
It would then be good to bring the other party to discover the information through someone else. In the previous case, through the Internet, in the case of the car repair, through the manual, in the case of the model, by the author of the tariff.
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It is very irritating to have to do this when we have the information. We are impatient to say what we know both because we are proud to know it and because we want to avoid losing time.
The use of a third party will totally change the atmosphere of the negotiation/mediation because the information will become his instead of yours that you put forward without letting him verify or appropriate it.
This research of proof and information from a third party is, by the way compulsory in the judicial system: the third parties are the witnesses, who can only be witnesses if they are not interested in the outcome. Under French law, the information coming from the parties is so doubtful that they are not even asked to testify under oath.
As far as one is discussing objective information, it is reasonably easy to give credibility to information. This become more difficult when you have to prove intentions or non-public information: for instance, who takes care of the children at home? The father or the mother?
Pure assertions: “I will maintain this policy”, “I am the one who does everything at home” are not convincing at all. They are even counterproductive. Because you say so, one doubts.
To let such information pass to the other party, you need a third party. Moreover the third party must seem to be independent and not be a stooge.
Do not hesitate to create all sorts of strategies to bring such information to the other party, which will often be the most important one for you, and which will not be taken into account if you do not pay attention to the way you present it to them.
Most of the time, such strategies must have been put in place before the negotiation offer. If you do so, the negotiation offer will look like a logical consequence of the information, whereas in the opposite case the information will look like a poor justification of your position.
Example: in a press conference, the CEO announces that he will develop a strategy of technological advancement. A little later, he offers to acquire a company with an innovative technology. The recipients of the offer understand that this offer is intended to reinforce the technological leadership of the offer. If they are the inventors, they can foresee a future in the business after the acquisition.
If the offer is made without any prior announcement and if the CEO then announces that he will have a strategy of technological advancement, the potential vendors will think that this may be a meaningless speech to make them want to sell whereas he is only interested in the cash they have at the bank.
How to Obtain Information
Of course, you must try to obtain as much information as possible before offering negotiation or mediation.
For the information you will not have been able to get before the offer, the negotiation will be a good time to ask.
If you want your request for information to be welcome, the other party needs to understand that your questions are justified by your desire to
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reach an agreement, and that such an agreement requires that you have this information. Then he will understand that it is in his own interest to provide you with the information.
If your questions sound like a police inquiry, it is unlikely to be productive.
Your questions should first demonstrate your empathic interest in the other. They must be based on common interrogations, which are themselves based on common interests.
Avoid: “What is your sales forecast for this year?” and replace it by: “We believe we will reach 150 in sales this year. Do you think that you and us together we could resist this competitor, who announces 500?”
Positive emotion can be created by expressing your ignorance and confusion and by suggesting that you believe that the other party knows. This is very flattering and one will rarely resist the pleasure of demonstrating you that you are right. “I know that you are a major player on the market but I have little information on your company and I wonder what the secret of its success is.”
Can you be humble enough to play this role?
Spontaneously, we build our conviction and try to impress the other party by our determination, which only results in their stronger resistance. If we ask for information, they will tend to retain it. Even if they do not know why, out of prudence, they will not share it.
To obtain information, you must either explain that you do not understand or explain why it is indispensable that you have it to resolve the problem.
Examples:
And you will go on like this: “You must have discovered a precedent that I overlooked… How far is it comparable? Which other decisions are there? Professors must have commented on this precedent… What did they say? And do you have evidence to present to the court? How do you react to my exhibit #5?
All these questions are open questions. They invite the other party to give explanations. They do not allow yes or no answers. Through their explanations, they will provide you with much more information than you expected and that they were ready to give.
They may even admit that they have a very bad file. You may end up understanding that your position is not as good as you thought. All this is excellent because it prevents one (if not both) of you to enter into a dubious fight.
During all this questioning, you must absolutely refrain from contradicting the other party. As soon as you will say no, you will enter into a confrontation, which will generate negative emotion and information will cease to flow. Just ask for more explanations if you need them.
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Instead of saying no, tell them what seems to contradict their affirmations and ask them to explain further.
Avoid: “You tell me that you were coming from the right. This is not true. A witness said you came from the left.” When you say that you, you tell him that you believe the witness more than him. You imply that he is lying. In other words, you attack him. The problem is not a question of information anymore. It has become a relational problem between the two of you. You are confronting each other. He will only answer your questions under constraint. No negotiation will be possible anymore.
Instead say: “You tell me that you came from the right. But a witness said that you came from the left. How can you explain this?” You may obtain a good answer that you had not thought of: “This is normal. The witness was facing me. I was actually coming from his left and from the right of the crashed car.” Or to the opposite: “That’s surprising. Can I see what he said? Well let me think about it… Now that I think it over, yes, I may have been coming from the left.”
1 In Getting Past No