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Introduction

All authors agree that 90% of your success in a negotiation/mediation relies on preparation.

But practitioners do not prepare much: “We’ll let them speak first and then we’ll see!” It is rare that people envisage the various possible reactions to the various possible openings of the other parties or what they should do if the other party does the same, as is likely to happen.

Moreover, when we prepare, we often prepare in a bad way. Everything happens as if we were only preparing obstacles to the negotiation/ mediation, i.e. ways to put pressure on the other party and thus generate resistance.

We rarely think about the interests of the other party and we almost never think of satisfying their interest, which would make willing to satisfy our interests. We try to convince ourselves that pressure will be sufficient to make the other party give in and compel them to satisfy us without giving them any satisfaction. When things happen this way, we reach conflictogenous agreements such as the Versailles Treaty. We tend to forget that violence and duress is a cause for the nullity of contracts and leads to eternal resentment.

We then need to move to another type of preparation based on what we have seen so far.

A good preparation includes that we answer a series of question among which:

• Why negotiate and what for?
• What are the BATNAs of the parties?
• What are our interests and needs?
• What are their interests and needs?
• When should we negotiate/mediate?
• What to expect from the negotiation/mediation?
• Do we have the information we need for the negotiation/mediation? How to get it?
• Do they have the information they need for the negotiation/mediation? How to make sure they will have it?
• How to offer the negotiation/mediation?
• How to react to an offer to go to negotiation or mediation?
• Who will negotiate?

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The order of the questions does not matter much as the answers will interact and answers to the previous questions will often have to be reviewed in consideration of the answers to the following ones.

In the following chapters, unless explained otherwise, all explanations will apply to the preparation of negotiation and mediation. The question of the reasons to go to mediation rather than negotiation as well as the specific points of the preparation of mediation will be discussed in the mediation part of this book.

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Why Negotiate and What For?

WHY NEGOTIATE?

My exclusive supplier used to deliver late. I terminated the contract with a notice period that will expire in a month. He claims that I could not terminate him as I did and asks for €500,000. I found another supplier but I have not signed with him yet.

My lawyers told me that the terminated supplier was willing to negotiate before introducing his case in court.

The first question I should ask myself is: Should I accept his offer to negotiate or not: why negotiate?

There can be many reasons to negotiate. For instance:

• Limit the amount of damages and possibly totally avoid them;
• Extend the notice period if I am not sure that the new supplier will be able to start delivering on time;
• Avoid that the previous supplier will interfere in my relationship with the new one by involving him;
• Bring the initial supplier to accept deterrent penalties in case of late delivery and resume my relationship with him;
• Avoid that he goes to bankruptcy and involves me as the cause of his problem/failure? Etc.

All or some of these reasons may accumulate.

There are also reasons for refusing to negotiate. For instance:

• I must be respected by my other suppliers;
• I know he has almost no chance to get anything in court;
• I think that I will be in a better negotiation position later;
• I am busy with the negotiation of the new contract (or with anything else important and positive) and I do not have time to negotiate with him;
• I should wait until our lawyers have introduced a counter claim for the damage caused by his delayed deliveries;
• I do not want him to obtain some information etc.

Again, all or some of these reasons may accumulate.

There may be reasons to negotiate and not to do so. Some of these reasons do not exclude negotiation but pose the question of when to negotiate.

Among all the ideas that may appear case by case, you will have to decide if you want to negotiate or not.

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WHAT TO NEGOTIATE FOR?

This may seem strange but I often see people coming to mediation with no goal.

They are caught in a dispute. Because the judge or the other party has invited them, they come to mediation.

They know it is going to be about their dispute but this is all they know. Their behaviour is only to say no to the other party’s claims by repeating the same arguments as in Court. We find ourselves in a mediation on positions, which is unlikely to succeed and which, if it succeeds, will lead to an absurd result only based on the power of each party. The mediator will then have a hard task to bring the parties to see the situation from another viewpoint and to do their preparation work within the mediation. If parties arrive in this state of mind in negotiation/mediation, their chances of success are close to none.

Before approaching negotiation, one must be clearly conscious of:

• The interests to be supported;
• The means to do so: the desire and the object;
• The level of satisfaction to be obtained: the objective;
• What will happen if no agreement is reached?

THE INTERESTS

Our Interests

The definition of interests seems to be a simple question. It is not always so.

When there is a relational/emotional problem, it tends to hide the interests. The offence felt is concealing the fundamental problem and if this problem has been in existence for some time and that offences have been accumulating over a long period, the original problem may have been totally forgotten. Such is the case of the vendettas in Corsica. People kill each other today to get revenge for past murders but no one remembers what the original dispute was. There is no interest to kill each other anymore but people keep doing it nevertheless.

Also at the date of the possible negotiation/mediation, the problem to be resolved may not be the original problem anymore. Our interests of today will prevail over the old interests, which are not valid anymore. In the case of the metallurgy company, we were finally instructed to negotiate 15 years after the facts. If initially the interest was to protect the image of the company, which made it necessary to act in court after 15 years, the problem was to stop spending time and money on this case…

This invites us to an in-depth reflection on what we really need and want.

In organizations, there may be several possibly conflicting interests. In-house counsels know how difficult it often is to have operational people accept the constraints of the law. Financial officers are always in conflict with production teams etc.

The interest of the organization is not one. It has several aspects and one has to satisfy two contradictory constraints:

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• Take all interests into account;
• Adopt a unique behaviour.

Their Interests

We cannot limit ourselves to thinking about our own interests. We also need to think about their interests as those create a limit on our possible action. We cannot hope for a solution that would only be acceptable to our interests and not to their interests. Otherwise we would create a dramatic situation of the Versailles Treaty type.

This phase of trying to understand their interest is fundamental. Ambroise Roux, who was one of the greatest industrialists of the second part of the 20th century and was at the origin of mergers and acquisitions in the French industry, was interviewed on TV after his retirement. The journalist asked how he succeeded in so many deals that his competitors would not even have imagined. “I never enter into negotiation before I am convinced that I know better that the other party what THEY need.” was his response.

Trying to understand their interests is an even more difficult exercise than looking for ours for at least two reasons:

• Most of the time we miss information

- On their actual situation;

- On their strategy.

• We do not know how they perceive the problem.

Their perception of their own interests may depend on information that we have and they do not and vice versa.

If we believe that they do not have all the information suited for a full comprehension of their interest and that may slow down the negotiation/ mediation, we have to ask ourselves if we should share it with them or not and, in the affirmative, how.

Any information given by us to them on their interest will be suspect if not an offence:

• It is in your interest to do as I say.
• Take care of your interests. I am quite able to take care of mine.

If we want them to understand their interests, we will have to build up a strategy to inform them or have them be informed or have them look for information so that they will accept the information.

In most cases, we will end our analysis with more questions than answers.

Then we have to build up a strategy to get the necessary information to best understand the way they perceive their interests and of what we think to be their ultimate interests.

Your interest is obviously fundamental data in the negotiation/mediation. Despite the difficulties you may have to identify it, it is reasonably simple. Negotiating without knowing what their interests are and how they perceive them is like driving in the fog: it is unlikely that you will end up where you wanted to go and you are putting yourself in danger.

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How to Satisfy Our Needs

The Object of the Negotiation/Mediation

Remember the distinction we made between needs and desires. This is what we are now talking about. Several desires can satisfy an interest.

A competitor is causing you problems on the market. They just introduced products on the market that are equivalent to yours but theirs are cheaper. Your interest is obviously to straighten out the situation and, if possible, to prevail over them.

To protect your interest, you can consider several solutions:

1. Develop your technology in order to beat them in this area;
2. Start an advertisement campaign;
3. Take them to Court for unfair competition;
4. Buy another company to become larger on the market and have your conditions prevail;
5. Acquire the company of your competitor;
6. Have him purchase your company, etc.

The last three solutions demand negotiation/mediation. The third one may also lead to negotiation/mediation. The first two solutions only depend on you. You have to determine a strategy to decide if you want to negotiate/ mediate what and with whom.

My late friends and mediator, David Plant, wrote an excellent book called We Must Talk Because We Can.¹ He was quite right. But being able to talk does not mean that we should discuss everything with just anyone.

I call “desires” objects which may fulfil your needs and among which you will have to choose the object of the negotiation/mediation. If the position “I want the orange” results from the need: “I am thirsty”, many desires can satisfy me: water, soda, lemonade, other fruit juices etc. If it results from a need from vitamin C, another possible desire would be to get it in a chemical form and there would be sub-desires for each form. If it is about a dessert for tonight, many other desserts can be imagined.

In other words, a negotiation/mediation must not be engaged until there is an object, which we will have ensured is the best means to satisfy our interests or that it will allow us to move toward such and object.

The hierarchy then is:

1. Needs/interests;
2. Desires/object.

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The Level of Satisfaction to Be Obtained

BATNA and Objective

During our preparation, we will have to determine our BATNA and then our objective depending on our BATNA.

If you determine that you want to negotiate the purchase of this competitor, you are not ready to do it at any condition. Some conditions could be devastating... You then have to determine an objective.

The objective in most of our negotiations is complex. For a company acquisition, the price is obviously an essential element but the conditions of payment, the measures of transition, the guarantees given, etc., are also fundamental.

The objective will then have to be defined in a rather loose way. We will have to determine it within a chart the lowest point of which will be our BATNA and the highest will be their BATNA (or vice versa). This is the ZOPA as it can be defined at any point of the negotiation/mediation.

We have discussed BATNA and ZOPA at length. We do not need to do it again.

The important point is to the decide where to aim to within the ZOPA taking into account the mutual powers of each party and the sustainability of the solution.

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When to Negotiate/Mediate?

As a matter of fact, the question “Should we negotiate/mediate or not?”, often turns out to be “When should we negotiate?”

The answer to this question is obvious: when the situation is the most favourable. To determine when the situation is the most favourable, several criteria will have to be considered:

1. Relational problem. Do you have the best person to talk to as a representative of the other party? Is the relationship likely to improve in the future? Can you improve the relationship before starting the negotiation?
2. Information problem; do you have all the information you need to negotiate and do they have it too? Is there something you can do to acquire information? Can you still do something to have them receive the information you wish them to have or to make them confident enough to initiate the negotiation/mediation?
3. BATNA. Obviously your interest is that your BATNA be at its best at the time of the negotiation/mediation. You should then think about its likely evolution. If it can evolve in your favour, either by itself or after you have done something, you should not initiate the negotiation/mediation before your BATNA has been maximized.

You will also have to think about the evolution of the other party’s BATNA. A priori your interest is to negotiate when your BATNA is at its best and theirs at its worst. But these two sequences do not necessarily coincide, and, as we saw, there is a limit to that, and a very weak or non-existent BATNA can become a weakness for the other party. This again needs careful thinking.

Of course, reality can impose other dates: a legal constraint (status of limitation), a judicial or market constraint or a demand of the other party may force you to negotiate/mediate at an undesired moment.

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The Members of the Team

I am afraid I made it too obvious that negotiation is a difficult exercise. To be a party in mediation is a little easier because the mediator is there to help, but nevertheless you have to think of so many things that the task remains difficult.

Therefore, it is useful to have a negotiating team.

An individual will need to be assisted by some one: his/her spouse or partner (It is so difficult to be politically correct nowadays…), or lawyer or other adviser.

An organization can also use an external counsel and should certainly involve at least two of its members.

The choice of participants should be made according to three main criteria:

• Technical qualification;
• Hierarchical level;
• Interpersonal relationship.

It often happens that a dispute involves several people and/or departments of the organization. Should all these people or representatives of the various departments concerned sit around the negotiation/mediation table? I do not believe so, and my experience proves that it was not appropriate: the smaller the team, the more powerful it is.

But the preoccupations of those, who will not attend, should not be forgotten. A difference should then be made between the preparation team and the negotiation/mediation team.

It should include all departments concerned. No one should be left out in determining the interests, the BATNA, the technical, financial, legal, human resources available to pursue the organization goal. When everyone will have taken part in the determination of the strategy, a small number of people will represent the organization in the negotiation/mediation.

By including everybody in the preparation, people get engaged in the process. For all those who took part in the determination of the strategy, this negotiation/mediation becomes their own. In the opposite case, “it is the negotiation/mediation of the others”. The solution will not be theirs, and those who will not have been involved will not feel bound by the result, though they may resist it. They may resist just for revenge and not having been associated in a negotiation/mediation, which affected them. The internal sabotage phenomenon is well known.

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Concluding a negotiation/mediation is not all; the agreement then has to be implemented. Its execution involves many departments in the organization. Involving them in the preparation of the negotiation/ mediation (and possibly at some later stages) makes them responsible for the result and its implementation.

Many people think that a large team is more powerful than a smaller one. They have a military conception of negotiation/mediation and they are wrong.

When a team is too large, it becomes dysfunctional due to the difficulty to organize the interventions and it is often delicate to structure rights of intervention, due reasons of pride.

If one agrees that only one speaks and that the others are only there to advise him, it would probably be better to have them sitting behind the door to be consulted when needed, and thus create occasions to pause and reflect.

If everyone can intervene when he feels so, the team may lose its coherence and each of its members may be pursuing his own strategy.

If each can only intervene in his technical domain, there will be risk of an internal rivalry about the pre-eminence of each type of interest over the other types: each will want to have the interests he is in charge of, prevail in order to avoid being accused of having neglected them. Such disagreements within a large team are frequent.

In my opinion, the maximum number of participants ranges between three and five. Above this, the team becomes barely manageable in the heat of action.

Here are some roles, which can be useful to the negotiation/mediation team:

• The boss, who will make the strategic choices and make decision in the course of the negotiation/mediation;
• The lawyer/attorney, who will design the limits of action and who will play an important role in litigious negotiation/mediations by helping to calculate the BATNA after receiving new information;
• The head of the most concerned department (HR for a negotiation/ mediation with a union);
• The head of the directly affected department (the manager of the branch affected by the labour dispute — the production manager for a conflict with a supplier, etc.);
• The finance manager, who will or will not give the means of action.

This does not mean that all these people must take part in any negotiation/ mediation…

Whereas the composition of the preparation team must take internal problems into account, the composition of the negotiation/mediation team must be decided in consideration of efficiency criteria.

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What does efficiency mean here? We are clearly not speaking of strength in the sense of ability to coerce. It refers to the ability to use the main skills of a negotiator:

• The ability to bind the organization (we will later discuss the extent of this ability);
• The ability to understand the technical problem and its possible solutions;
• The ability to listen;
• Flexibility, imagination and creativity;
• Patience.

In other words, the technical expertise must be replaced by skills in the negotiation/mediation process. Technical information must be available for the negotiators. The presence of the technicians is not necessarily appropriate. Technicians are often poor negotiators because they remain focused on their technical issues and have difficulties thinking out of the box. The conflict is also often an ego conflict between the technicians of the various parties who should then remain to the side.

Technicians should only be around the negotiation/mediation table when the solution has to be a technical solution or include such an important technical component that you couldn’t do without them. In those cases, you do not need technicians anymore; you need inventors (of technical solutions).

Lawyers (in-house or attorneys) are often invited to take part in dispute negotiation/mediation but also in transactional ones. I of course have nothing against lawyers and attorneys but I believe that one should define their role, and consequently their ability to intervene.

The law is a technique among all the other techniques that the conflict and the agreement may involve. It is nothing more and nothing less. Lawyers must be treated as technicians: they must provide the information and only be involved as far as the solution will require some legal engineering.

One cannot do without the lawyers for three reasons:

• Their experience in multiple conflicts or of multiple contracts gives them a very much needed creativity;
• They are necessary to avoid unlawful solutions;
• It is their job to draft the agreement.

This does not mean that they should always take part in the whole negotiation/mediation. They can, like any other technician, be consulted by the negotiators and only join the negotiation/mediation when needed.

One rarely uses negotiation counsels per se. I regret it. The chief of the negotiation/mediation team, whatever good he may be, is necessarily concentrating on the information, on risks and stakes. He concentrates on finding solutions. It is difficult for him to listen beyond information, to capture emotion and identity. Tension around the table is not favourable to his creativity. When the negotiation/mediation reaches an impasse, when people start repeating themselves without being able to move forward, it is

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difficult for him to analyze why it is so and to find the words and moves which will allow a new departure.

For all these reasons, it is advisable to have at the table and within the team someone who maybe will not speak, but who will at any moment be able to advise the negotiators on the most appropriate behaviour and who will help them see and hear what they may have missed.

He may be the one to be sent to the flip chart to note the interests and the options. It must of course be someone trained and experienced in negotiation/mediation.

This counsel may be the one detecting and helping resolving differences of views within the team. The relationship within the team is very different at the preparation stage and around the negotiation/mediation table. In the heat of the negotiation/mediation, emotions may sometimes appear following a position taken by a negotiator of the same team. The council will be able to notice it and help the two colleagues to align again.

Also when the negotiation/mediation evolves rapidly (whether positively or negatively), it becomes difficult for colleagues negotiators to make sure that they are still on the same page. Pauses may be useful to make sure this is still the case or to resolve differences. The one who is getting lost, particularly if he is a subordinate, does not dare ask for a pause to catch up and his colleague may not notice that he is lost. There is a risk of an incident if no one is there to observe the situation and ask for a break. This is another major role of a counsel.

I sincerely hope that this position of a negotiation/mediation counsel will develop because the essential distance between counsel and client allows the counsel to play a unique and indispensable role. He is the only one with enough distance to listen in-depth, to analyze the causes of impasses and to create strategies to overcome them.

Lawyers want to play this role. Can they? If they have only been trained in the law, they cannot. Their training enhances our natural tendency to pose problems in terms of “I am right, you are wrong”. The first quality of a lawyer is rigour; the negotiator’s is flexibility.

But lawyers can be trained in negotiation and become able to play this role aside from the lawyer’s job. Actually most of the participants in my trainings are lawyers and attorneys.

The question then arises as to whether you can be the lawyer and the negotiation/mediation counsel in the same negotiation/mediation. This is a very personal question. Are you able to sometimes act with your left-brain and then with your right? If you feel you can, why not try?

As a matter of practice, I suggest to the parties:

• By default, to have a negotiation/mediation counsel at the table and a lawyer available when necessary;
• To not expect their lawyer to be their negotiation/mediation counsel unless they have made sure that he has been seriously trained in such techniques;

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• To agree with the negotiation/mediation counsel (lawyer or not) that he will only advise them and will not intervene vis-à-vis the other party or the mediator to avoid any confusion.

I suggest to those who want to be negotiation/mediation counsels, whatever their initial training is, to train in negotiation and in mediation. It is in this second training that they will learn this third party position, which is the characteristic of the mediator (of both parties), and the counsel (of one party).

The Hierarchical Level

It is important to have a decision maker around the table.

What is a decision maker? When the decision is to be made by a collegial body (board, general meeting, credit committee, management committee, etc.), you cannot have the decision maker at the table. So whom do you want to have in front of you to negotiate or mediate with? You will want to talk with someone who will be able to elaborate a global solution with you and to recommend it with serious chances to be followed to the decision making body.

Most of the time several people can fulfil this role from the president or the CEO to anyone who will have been put in charge of the question including a number of specialized departments (legal, financial, commercial, etc.). In such a situation whom can you accept, whom should you refuse, whom should you look for?

Spontaneously we look for the person in the highest hierarchical position because he can embrace all aspects of the problem and will not refuse to answer claiming he is incompetent. I do not think this is a good idea.

The higher you are, the smaller things look. For the top person, your problem will only be one among many others. He will probably be the least informed and the one with less time to listen to you. Your chances to reach an agreement are reduced by his high position. Even worse, at his level, one cannot be mistaken or change one’s mind. So if this supreme authority said no, you will not be able to save the deal anymore.

On the contrary, if you find the best-informed level, you will have more chances to agree. If you cannot, you will be still able to escalate and to speak to the upper level.

What is true for the other party is also true for you. Within your organization, you should not push forward someone at a too high a hierarchical level. Take the person at the lowest hierarchical level among those who have a full view of the matter to lead the team. This will allow you to use the hierarchical argument to resist (“If I do this, I will be fired.”) or to change your mind (“I did not think that…. but my boss told me to do otherwise.”).

Interpersonal Relationship

We saw that it is necessary to resolve relational problems before the negotiation/mediation or at its very beginning. This is true within your team as well as between the members of the various teams.

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When the negotiation/mediation takes place between organizations, there may be a choice of negotiators. How to choose?

It is necessary to have people of equivalent qualifications; finance officers should speak with finance of ficers and engineers with engineers. This is obvious.

In practice this is often neglected with damaging consequences: misunderstandings, anger, the feeling not to be understood and possibly the feeling of despise for yourself or your professional qualification or your role in the organization, etc.

You get to this point because each party generally prepares separately. Each party looks for its best negotiators, or the best elements on both sides may not correspond. Here is a case I was personally involved in: one team considers it is a very important matter and sends high-ranking representatives. On the other side people believe it is a very important matter too but, to remain flexible, they send two young people of the middle management to allow changes of strategies at the top.

From the first minute, the members of the first team feel insulted to be facing people of a much lower level. And when the discussion begins, one realizes that the first team can imagine all sorts of solutions, whereas the second one is locked within its instructions. Very quickly the atmosphere becomes tense and the negotiation ends up in an impasse. The second had to bring its boss to the table for the mediation to really begin.

This can also happen when people are sent with instructions that do not match their position in the organization. I was recently confronted with a situation where the big boss of a large company did not want to come and mediate a case with the owner of a smaller one and sent the head of the legal department. The normal job of a general counsel would be to evaluate the odds in court and to find an agreement based on this evaluation. Unfortunately, this lady had received instructions that were totally independent from such considerations and were only pertaining to the general policy of the company. The corporate counsel was in a very uncomfortable position to defend the views of her company. Moreover she had no flexibility at all to invent any solution, as it would have challenged the whole company’s policy, which was beyond her reach. Once again, the situation was blocked until the CEO of the large company accepted to enter the arena, even if he did not feel like it at all.

The choice of the participants should then not be unilateral. It is advisable, before entering the negotiation, to agree on whom the negotiators will be in order to make sure that they are on equal footing and will have reasonable chances of success. This can even be better done with the help of a negotiation/mediation counsel.

THE FUNCTIONING OF THE NEGOTIATION/MEDIATION TEAM

The larger the team is, the more necessary it will be to have agreed on rules to make the teamwork effectively. Nothing is worse than a team in which everyone speaks when he feels like it depending on his own preoccupations. It becomes very difficult to maintain a focus in the negotiation/mediation and even within the team.

One has to agree on two types of rules: decisions rules and speaking rules.

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Decision rules tend to determine who will decide to give or not give this or that piece of information, to make a suggestion, to refuse an idea of the other party. It can be the team leader, the whole tem or only some of them. It is only necessary to determine those rules ahead of time in order to avoid later internal tensions.

In the same way, it is important to determine who says what. One can imagine many rules: only one speaks and the others pass him notes, one decides and allows the various team members to speak, each member can only speak about his subject etc.

No rule should be recommended more than another one. It will depend on the usual rules of the organization and of multiple factors such as the object of the negotiation/mediation, the team members, the members of the other team, the relationships within the team and with the other team.

SHOULD ONE PREPARE AN OPENING STATEMENT

It is frequent and often traditional to have opening statements at the beginning of the negotiation/mediation. According to the partisans of this technique, it allows everyone to see where they are coming from.

According to my experience, these opening statements affirm the positions and hide the interests. In other words, they start by creating obstacles to the negotiation/mediation before it has even started.

Let’s not forget that we should first make sure that the parties have the relevant information. It is then more appropriate to start with this and to ask questions before affirming anything else than the desire to do everything to make the negotiation/mediation successful.

An opening statement is only appropriate if it contributes to the creation of a collaborative atmosphere between the participants in order to launch the negotiation/mediation positively: “Even if we are sitting on both sides of the table, we all share the same goal: to resolve our problem.” This type of statement can be followed by the description of the way the problem seems to be posed and by our affirmation of our desire to understand the problem the other party is experiencing.

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Negotiate the Negotiation/Mediation

We have already described the need to speak with the other party on the conditions of the negotiation/mediation.

This negotiation of the negotiation is intended to clarify a number of points but it also has its own utility.

It is different depending on whether we are offering the negotiation/ mediation or if we are responding to an offer.

You need to prepare for your negotiation/mediation but the other party does too.

If they have not prepared and if you have, they will soon feel overwhelmed. They will not be able to follow your ideas or will not be able to measure the consequences of the options they are facing. In the best case they will ask for a postponement to make a posteriori the work they should have done a priori. In most cases they will refuse any agreement because they will be afraid to lose face.

The negotiation of the negotiation/mediation will allow you to ask questions, which will compel the other party to prepare as well as you did. Moreover this will “engage” them in the negotiation/mediation.

THE ENGAGEMENT

This very efficient idea comes from what is known as the theory of engagement. This theory shows that if you bring somebody to explicitly agree to a process before starting it, this person will engage quicker and deeper into the process.

Here is an example offered by the authors of this theory.²You are on the beach and you listen to the radio. You go swimming and leave the radio on your towel. Somebody comes and steals it. You neighbour will intervene in 25% of the cases. If, before going swimming, you had said to your neighbour: “I am going swimming and I am leaving my radio. Can you please see that it is not stolen.” Your neighbour will intervene in 75% of the cases.

Based on this theory, a sales technique called the “three yeses” was invented.

The sales person should get the potential purchaser to say “yes” three times before they start the selling process. To this effect the sales person will ask you three questions, which can only be answered by yes. For instance, you enter a shop where they only sell leather sofas. A sales man approaches you and asks:

“Hello! Are you are interested in a sofa?” you can only answer positively.

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“And you are thinking of a leather sofa?” “Yes” is again the only possible answer.

“Would you like me to explain the various qualities and the corresponding prices?” how could you not say “yes”?

After these three “yeses” you are engaged into the selling process with the salesman. You may have arrived in a relaxed mood, feeling free to leave at any moment without any explanation, but you now have a partner who will guide your steps. It will now be far more difficult to interrupt the process and leave.

This is exactly what we want to do when we start a negotiation/mediation process. We do not want the other party to come like a tourist. We want them to deeply engage in the process to reach an agreement and feel compelled to justify their behaviour to themselves and to us before putting an end to the process.

The negotiation of the negotiation/mediation will be about discussing and agreeing on the conditions and modalities of the negotiation/mediation in order to bring the other party to engage in it.

This negotiation of the negotiation/mediation itself calls for an engagement. You will then start by asking three questions, which imply a positive answer.

For instance, when you are offered a negotiation/mediation:

1. If I understand you well, you wish us to have a negotiation to find an agreement?
2. And do you believe that an agreement is possible?
3. Do you believe that ii is our mutual interest to agree?

And when you offer it:

1. I heard that you are someone who likes to make profitable deals, aren’t you?
2. And I imagine that you are used to negotiating?
3. So you must be a clever and strong negotiator?
4. Isn’t it a pity that we have not found an agreement yet?

Beyond this little salesman’s trick to launch the negotiation of the negotiation/mediation, we will still have to bring the other party to engage into the negotiation/mediation itself.

SUBMIT THE NEGOTIATION/MEDIATION TO CONDITIONS

To this effect, I suggest to set a numbers of conditions to the negotiation/ mediation.

These conditions must be easily acceptable as the goal is to engage into the negotiation/mediation and not to raise obstacles. We should then avoid conditions, which may make them lose face or lose a significant advantage.

Usually acceptable conditions: date, place, exchange of notes, end before a certain date (you may always agree otherwise later), etc.

Usually unacceptable or damageable conditions: prior recognition that they are wrong, down payment, putting the maximum amount in escrow etc.

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The aim of such conditions is to bring the other party to realize that this is a serious matter that needs some reflection. You wish them to accept the conditions in order to obtain prior yeses, like above. But you may also agree on other conditions. The important point is that they think and engage positively in the process.

If the other party sets conditions too, you just won: they are conscious of the importance of the process. Their conditions must be accepted every time it is possible. If they are not acceptable, they should be negotiated. When you have accepted their conditions (even if renegotiated) the other party will feel even more engaged.

The principle of setting conditions for the negotiation/mediation is valid when you offer mediation, as well as when it is offered to you. Your offer must always be conditional. The same applies to your acceptance or refusal.

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