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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
by Thierry Garby
Introduction
We prepared our negotiation/mediation and negotiated its modalities. It is time to sit at the table.
We saw that the negotiator and the possible mediator must create positive emotions and limit the appearance of negative emotions. We also saw that these emotions came from our identity. If it is recognized and respected, we feel positive emotions and if it is not, we feel negative emotions.
Many researchers worked on the question of “How to create positive emotions and avoid negative ones”.
On the one side, Roger Fisher and Daniel Shapiro asked themselves how to do it whatever the negotiation/mediation and whatever the participants.
On the other hand, researchers at University of California Palo Alto worked on the best means to listen and understand someone else’s identity and to speak in a way that allows you to say the most difficult things and generate as little negative emotions and possibly create positive emotions.
This part will be dedicated to their findings.
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Chapter 1
Create Positive Emotion with Anybody
We want to create positive emotions with all the participants in the negotiation/mediation (and also with their counsels) though at the beginning we will start with disagreements. We will have to say no to each other and say things that the other party doesn’t feel like hearing. We are then at risk to see negative emotions come out.
We know that emotions come from identity and that we have to discover this identity, which will always take time and maybe more time than what the parties are ready to allow for the negotiation/mediation. We then have to create a positive atmosphere by means that allow us to reach this result for anybody before even knowing the person.
Many authors worked on this problem. They all concluded (like Maslow) that there were fundamental needs inside us and that the satisfaction of these needs created positive emotion and that, on the contrary, their frustration created negative emotion.
Of course we are not going to discuss physiological and security needs, which are the interest i.e. substance of the negotiation/mediation. We will only be interested in the emotional needs.
All these authors, Roger Fisher (one of the authors of Getting to Yes) and Daniel Shapiro (a psychology professor at Harvard) worked on this problem from the negotiator’s point of view. To this effect, they looked at our emotional needs and divided them into five points in the context of negotiation/mediation.1
In order to understand their ideas one must know that it is based on the method of the lens and the lever. This method suggests looking at a problem from several angles as if we were looking through a lens and to find a lever to work on each of these aspects.
Here are the suggestions of these authors.
APPRECIATION
The Lens
Appreciation consists in taking into account what somebody does and says. If the other party doesn’t listen to us or does not take into account what we are saying, we will be frustrated and we will feel negative emotion (anger, lassitude, etc.). If, on the contrary, without expressing an agreement, they take into account what we are saying, even to only notice that we do not agree, we will feel positive emotions.
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The same applies in what I do in the negotiation/mediation (What I do to collaborate and find a solution) or what I have done outside the negotiation/mediation.
The Lever
The way to provoke positive emotions out of the need for appreciation consists in expressing the appreciation.
“You think that this carpet is worn out and must be changed. I believe it can still be useful for a long period of time. We will come back to that if it appears to be important.” This will create positive emotion whereas: “No! It is still fine!” would have created negative emotion.
“You went out to see new prospects but they did not give you any order.” This will create less negative emotion and perhaps positive emotion as opposed to: “So! The result is zero”.
AFFILIATION
We have already described affiliation as being one of the fundamental needs of Maslow. It means feeling a sense of belonging to a group or a community.
Feeling an affiliation creates positive emotions and vice versa.
There can be several natures of affiliation: belonging to the same village or the same area, alumni of the same school, practicing the same sports or being believers of the same religion etc.
In negotiation/mediation, we all have at least one common point: we are here to resolve the problem.
We have at least one other common point. We are humans and we are affected by common problems: the weather, health, traffic, etc., and this is true even if we have nothing specific in common. But we do not naturally look for this affiliation and particularly not when we are in conflict. We rather think that these horrible people and us do not belong to the same world.
We must create affiliation. How can we?
First we need to take time to fully introduce ourselves, which means:
State your name clearly and possibly spell it out. If you do not care to introduce yourself, how could the other one believe that you will be interested in him?
Clearly understand the name and title of the others. Make sure you pronounce it right, possibly ask that it be spelled for you, possibly take time to read the business card you have just been given. This is not always usual in some cultures. People tend to immediately move to the problem without taking time to make sure whom they are dealing with. Make an effort and give your negotiation/mediation partner this minimum consideration.
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Before starting to negotiate, take time to discuss various topics including the weather.
A few years ago, in England, a country where it was not proper to show your emotions, any conversations started with a remark on the weather: “Nice weather, isn’t it?” the weather affects us all. It was the minimum we could share but people took care to share it, and in this way to not remain strangers to one another.
When the negotiation/mediation starts, do not forget to remind people that: “we are here to resolve this problem together.” By stating this, you create affiliation between the participants. You change adversaries into colleagues, which means into people who, even if they do not really like each other, have a task to perform together.
AUTONOMY
Autonomy resides in each party’s ability to accept or refuse a solution. Whether we like it or not, the other party can always take whichever decision they want, even if this decision seems absurd and contrary to their interests.
If one respects your autonomy, you will feel positive emotion and vice-versa.
Obviously saying: “This is a take it or leave it offer. I am not going to change my mind and you can only blame yourself if there is no agreement,” will not make the other party feel like accepting the solution. Whereas: “We have a difficult problem. Thought about it a lot and I only found one solution. I would very well understand if you would refuse it but as it is the only one, I must offer it to you. This is it. Take your time and let me know what you want to do” will probably be more efficient.
In the first case, they strongly feel like refusing. They will do everything they can to refuse. In the second case, they will ask themselves what to do. They may be tempted to say yes, even if the offer is not great and is the same as in the previous case.
One must respect autonomy and express this respect.
STATUS
In a negotiation/mediation, everyone arrives with their status: husband father, neighbour, financial manager, trade union representative, president of the club, etc.
If you do not recognize their status, you provoke strongly negative emotions. This is perfectly normal because the status of someone is an achievement. It can be the final point of one’s growth, of some personal maturation, of a research, of one’s education, of a career, of an election etc. in any case, the status is part of one’s identity.
Taking the status into account does not mean flattering someone. Over estimating someone’s status may flatter him for a while but it will soon become embarrassing in the negotiation/mediation. If you call a colonel
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“general”, he will love it until you ask him to make a general’s decision. At that moment he will have to admit that he is less than you thought and will be angry with you.
Of course, underestimating someone’s status is a mistake to be avoided.
Only taking one part of the status into account (seeing only the husband paying an alimony and ignoring the father and educator) gives a bad start to the negotiation/mediation. Both of these statuses have to be taken into account because they will both play a role in the negotiation/mediation and because you cannot ignore half of someone’s identity.
It sometimes happens that someone reveals that he has another status in addition to the one you know in the negotiation/mediation. This person generally thinks that this second status is higher than the first one. The foreman is the leader of the local choir, the engineer is a great golfer, the accountant writes novels, etc.
They reveal these higher statuses because they want you to take them into account too. At each meeting you must show that you remember what you were told. The president of the local football club will rather admit that they lost again last weekend than believe that you forgot that he is the president or that it does not matter to you.
You must recognize the status.
THE ROLE
Each participant in the negotiation/mediation must play a role in it and more particularly in the making of the solution. Otherwise, even if the solution could be satisfactory, the participant(s), who will not have played a role, will refuse it.
There can be several reasons to this:
The concept of role actually includes two meanings in Fisher’s and Shapiro’s book:
We discussed the second aspect when we spoke about identity and when we introduced the concepts of TA.
Let’s now concentrate on the first one.
Nothing would be worse than insisting to make the party, who did not play a role, finally accept the solution. More pressure would create more resistance.
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On the contrary, you must give this party a role.
If you put pressure to have your solution adopted, you will create negative emotion.
The best way to remedy this situation will be to go back to the last point of agreement.
For instance:
If your offer was the best, it will be accepted once the other party will have asked you to include a clause so that they can find “their” clause in it and that the agreement does not look like being entirely yours.
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Chapter 2
Listen to Learn More
The method we just described is excellent but remains quite superficial. When you are in a long negotiation/mediation or when the other party is someone you have known for a long time, this type of behaviour is not enough and can even irritate the other party who will feel treated like a stranger.
We have seen that you must try to understand the other party down to the identity level to be able to create positive emotions, which will give the negotiation/mediation a chance. It is obviously not easy. It is all the more difficult that we have difficulties listening even at the first level of information.
We have to overcome the obstacles to listening to the information and to learn techniques to listen deeper and discover what is said at the levels of emotion and identity.
THE OBSTACLES TO LISTENING
We say that we listen but most of the time we simply hear. We are passive. We do not concentrate on acquiring information. It seems to slip on us and, at the end of the speech, we remember little of what was said.
In addition to that, when we think we are listening, our brain keeps working on other matters. Most of the time it is thinking about the little things of day-to-day life or about some other preoccupation. In negotiation/ mediation, it criticizes what is said and prepares an answer. You have not finished speaking and the other party interrupts you to answer and the answer usually starts with “no”.
If you try to summarize what you remember of what you have read in this book, you will realize that a huge amount of information has been forgotten. As this is in writing, you only lost information. In negotiation/mediation, you must in addition pay attention to emotions and identity!
Finally, the worst obstacle to our capture of information and emotion results from our own emotions.
We have seen that we cannot receive pure information. We experience perceptions, a mixture of information and emotions. Trying to eliminate emotions would be vain and would only result in increasing it. Remember that emotions come first. We like or dislike what we hear before having fully understood it.
As far as:
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We then have to change our listening method. The natural passive way of listening is not enough to allow us to receive enough information or to efficiently capture the emotions. From passive listening, we must move to active listening.
Active listening was created by well-known American psychologist Carl Rogers. His research was developed as a form of therapy. This is of course not our goal here. But this technique can be adapted in many other fields. In negotiation/mediation for instance, information is more important than in psychology.
We will then present a slightly modify method to match the need of negotiators and mediators.
ACTIVE-ONLY LISTENING
To avoid losing too much information due to our passivity, we shall act in the other party’s direction. We shall rephrase the information that was just delivered.
This reformulation will have several effects:
For all these reasons, in negotiation/mediation unlike in therapy, it may be advantageous to interrupt people to reformulate.
Quite often a negotiator will start with an endless speech, which reveals how confused his mind is. His speech then generates negative emotion in him and in the other party. Interrupting him with words show that you are not trying to prevent him from speaking but that, to the contrary you wish to better understand him and can only help the flow of the negotiation: “I am sorry to interrupt you but I want to make sure that I understand you correctly. Is your idea that…?”
What is this reformulation? There are many definitions with different authors. Clearly it is not the repetition of what was just said, which would only show your ability to memorize. It is not paraphrasing, which would not
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add anything. It is certainly not a reaction or a judgement: “Do you dare tell me that…” is to be avoided.
Reformulation is a summary of what was said in words showing what the listener understands in an effort to reflect as well as possible what the speaker is trying to express.
Initial speech: When I left home this morning, I quickly put my coat on but when I got in the car I felt bundled up and I had to take it off.
Repetition: You put your coat on when leaving the house this morning and when you arrive at the car, you took it off because you did not want to be bundled up.
Paraphrase: So you first put your coat on. That was when you left home. Then you took it off because it was bothering you when you were driving.
Reformulation: I understand that you were cold when you left home. Nevertheless you took your coat off to not be hemmed in when driving.
The difference is that the reformulation adds sense to the words: protection against the cold and freedom of movement to drive... You could have found other meanings: elegance and comfort.
Reformulation offers an opportunity to deepen your understanding even when the words were perfectly clear like here. From this reformulation, not only the listener will better understand but also the speaker will have to deepen his thoughts and/or clarify his expression on what really matters to him. Here it seems that the speaker has contradictory needs and the speaker will have an opportunity to better explain how this contradiction affects him and why one need prevails over the other one.
If the reformulation does match the speaker’s intention, he will reorient his speech toward what is important: “Yes and that contributed to my being late.” In any case, reformulation will result in making the expression clearer.
This effect will be better obtained when reformulation takes place at the right moment. In the above case, the listener might have waited a little longer before reformulating. The link with the delay would have come by itself.
Of course, reformulation can intervene when the intervention is over. But you do not have to wait that long.
Following an intervention, you can only remember a limited number of ideas: three to five. If the speaker goes beyond this number of ideas, the listener will lose some of them. It is then important to reformulate at the moment when your ability to remember is at its maximum and before having gone beyond.
If before having reached this point, the speaker changes topic, it may be important to reformulate the first topic before moving to the next one.
Example: at the beginning of a meeting between departments of the same company: “When I left home this morning, I quickly put my coat on, but when I got in the car I felt bundled up and I had to take it off. The windows were frosted and I had to wait until my engine was warm to remove the frost. And I do not have warming up side mirrors. When I realized that I could not see anything because of the frost on the mirrors,
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I had to go scrape them. I thought I would turn into an ice cube. And then when I entered the highway the cars were driving very slowly. They were probably afraid of ice patches. At least the freeway had been salted and I could drive properly”.
“All this means that I did not have time to look at the file before this meeting. So I wonder whether it’s really worth discussing the problem. In fact what I understand is that no one understands the behaviour of the other party. So in fact I don’t see why we are meeting. It’s just like in the Y file where we lost two hours yesterday morning to no effect. Meetings are like a disease in this company. We spend our time in meetings and never decide anything and then they talk to us about productivity. They should let us work rather than meet! That would be good for productivity…”
Obviously this person would like to be forgiven for being late and for not having prepared for the meeting by blaming the cold and then the company. The further he goes the less coherent his speech. The more he insists, the less forgivable he seems. He understands it and feels bad. Then he slowly becomes aggressive. He is about to say words, which will be held against him. He should have apologized and let the meeting go on.
If you want to negotiate with him, you have to help him refocus and stop dangerously drifting. He has to feel good enough to speak as an Adult (in the TA meaning of the word). You can reach this goal through reformulation.
From the beginning of his speech, you realize that what he says has no relation with the meeting. This makes everyone lose time, which is particularly annoying from somebody who is late. Instead of blaming him and asking him to stop talking, which will increase his bad feelings and his need for justification, you may ask him after the second or third sentence: “If I understand you well, you live far away and are late because of the cold.”
As soon as you have found an excuse for his delay, he is not in this same state of panic. You understand that you have understood him. He is reassured and can now admit: “Yes and that’s why I couldn’t prepare for the meeting. I’m sorry!”
If nevertheless he goes on with the second paragraph (criticizing too many meetings), as soon as he says the third sentence, you can rephrase: “You could not prepare for the meeting but nevertheless you wish it to be efficient.”
Your reformulation will be efficient as far as, instead of concentrating on the problem, it will concentrate on what you guess can be the needs of the speaker, even if he did not formulate them and he is not psychologically able to do so: How could he invite his colleagues to be efficient when he has not prepared for the meeting?
This exercise may seem risky as each time you have to guess the needs that were not expressed. Of course, if you guessed right, your reformulation will have a powerful effect. If you guessed wrong, your reformulation will still remain positive because it will show your interest in the speaker, will lead him to speak about his real preoccupations and will relieve him of his embarrassment.
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The most difficult aspect of reformulation relates to the fact that the light it should bring, and the new idea it includes, must tend to reveal the speaker’s thinking and not the listener’s, but at the same time it must allow the speaker to discover what the listener understands.
Even if the listener is exasperated by the numerous late arrivals of the speaker, he should say: “It’s because of the cold that you are late.” And not: “And this time, the cold is the excuse for your being late.”
This does not mean that the listener accepts the delay. It means that at this moment, he wants the speaker to move to a psychological state that is compatible with the negotiation.
But this purely active listening is rather poor. Take this example:
- I went to the harbour and only saw 40 containers. Where are the other ones?
- Do you mean that you gave us more than 40 containers to ship and that you could only see 40 here?
- Yes, we gave you 60 in Marseille and there are only 40 here in Algiers.
- Do you have the documents?
- Here they are.
- OK. I’ll see what I can do.
In such a dialogue, one obtains information. It is something. But emotion is not taken into account. As a consequence, the listener does not learn anything about the needs of the speaker.
ACTIVE-EMPATHIC LISTENING
Active-empathic listening consists in adding a supposition about the emotional state of the speaker to the reformulation of the pure information.
- Do you mean that you gave us more than 40 containers to ship and that you could only see 40 here? You must be really angry.
- Oh yes I am. I must deliver tomorrow and if I do not I will have to pay penalties. So you better get moving because if I have to pay penalties, I will ask you to reimburse me.
This means that his first need is to receive the containers here in Algiers as soon as possible. This seems obvious but it is not at all. The answer could have been:
- No. I am not angry. I am only disappointed. I was hoping to have found a reliable partner in you. I realize that you are no more reliable than your competitors.
This reply would inform you that the client’s first need is not the delivery of his containers but the reliability of his carrier.
This is going to totally change your first priority and your relationship with your client. Of course, you will have to find the containers and deliver them to him as soon as possible. But you will have to instruct your commercial teams to try and convince the client that you are reliable even if the first contract was a problem.
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At the same time, this information on emotions will have revealed something about the client’s identity, the way he wants to be seen and considered by you.
You probably guessed who was the younger of these two respondents (the angry one and the disappointed one). Of course the second is the older one, or at least he wants to appear as an experienced man who does not get caught by the hazards of life. He is not one, like the first one, who works on a just-in-time basis and may find himself incurring penalties. If you call the older man saying:
- Hey! You’re gonna laugh. Your containers are here. They had just been stored elsewhere.
You will not improve the situation. This colloquial way of speaking to him would shock him and would confirm in his eyes that the carrier is not trustworthy.
On the contrary, for the first client, that would immediately calm him down and the problem would be over.
The other party will rarely lie about their emotions because they express their deepest identity. If you make a mistake about someone’s emotion, they will feel it as if you had made a mistake about their name. It is likely that they will correct you and reveal their real emotion.
The expression of empathy by making a supposition on someone’s emotional state, performs several functions in negotiation/mediation:
Some example of empathic reformulation (in italics):
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the slow pace of our negotiation. What do you think we should do to move faster?” — “I told you. Give me your last offer; I’ll see if I accept it or not and we’ll be done.” — “do you mean that you prefer terminating our relationship than going on with our negotiation?” — “I did not say that.” “I am happy that, just like me, you value our relationship.”
In the first sentences, the first party speaks in a way, which may unwittingly endanger their relationship. The empathic reformulation allows him to take a distance from his feelings and to favour the continuation of the relationship again.
Empathy here is not limited to the obvious emotional state. It is accompanied by sympathy (“and I understand you”). The supplier goes further by offering to explain and reveal the causes of the problem and the remedies. In other words, he recognizes that the complaint is legitimate. This is a case where the claim calls for more than empathy: it requires sympathy and remedies.
In both cases, empathy is shown by acknowledging the client’s exasperation, and the supplier insisting on the fundamental value of trust. But in the second case, there is no sympathy anymore because the supplier considers that the client exaggerates and that delays were only occasional. Rather that contradicting him, the supplier enters into an investigation with the clear goal to satisfy the client by putting an end to delays.
We could accumulate examples in all sorts of domains: business, family, community, consumers, etc.
EMPATHIC-ACTIVE LISTENING AND RELATIONSHIP MANAGEMENT
We just discovered the most efficient way to deal with emotional and relational conflicts.
Even if unjustified, emotions exist and pre-exist before information. Emotions do not come from information. They come from the identity of the speaker. Information is only an opportunity to express one’s identity through emotion. The treatment of information is a small means of treating emotion.
The only way to treat emotions is by acknowledging them. Emotions are calls for acknowledgement of one’s pain: the pain of not being able to be what we wish to be. By my emotion, I am asking you: “Tell me that I am what I would like to be.”
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There is rarely a good reason to deny this request. What he wants to be is less our problem than what he wants to do.
There are many ways to create for ourselves the personality we would want to be: I can be a bon vivant by eating and drinking or by throwing parties for my friends or like Epicure, by being particularly moderate. I can be the master of the world by destroying it or by creating peace as much as possible.
I can then acknowledge their emotion and thus their need. As soon as they will feel comforted in the project of being, we shall be able to usefully discuss his desires and their acceptability for us. From that time on and no earlier, we will be able to discuss what brings us together: the resolution of the problem.
In other words, empathic active listening will allow us to:
When the relational problem between the parties is not due to a technical difficulty (differences of languages, inability to communicate, for instance), it is emotional. Most of the time it comes from the resilience of past negative emotions.
This technique is based on something called the mirror effect. When we will discuss mediation we will see that some mediators entirely base their technique on the mirror effect.
The mirror effect has several characteristics among which:
Think of the parents bent over the crib and speaking to their child in baby language. They imitate his expressions. Immediately the baby will start to smile with happiness to recognize himself in his parents’ expression. Slowly parents will start pronouncing real words and this will start the baby’s learning of real language.
Of course, this empathy will be difficult when you feel attacked in negotiation/mediation. You do not feel like showing empathy and you may feel angry due to the other’s violence. But it is the only way to re-establish the relationship. The help of a mediator will often be necessary to overcome such difficulty.
Unfortunately, this method does not always succeed. It fails in three typical cases.
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Listening in negotiation/mediation is an essential element, which we tend to neglect in practice. We are so focused on the result that we concentrate on information we want to give and we do not take sufficient account of the information given to us. Moreover we reject everything, which is underneath this information such as emotion and identity. When they appear, we try to eliminate them as enemies.
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Chapter 3
Speaking to Be Heard
In this communication process, we have to speak. This is usually to give information to the others. It should also be intended to make them feel positive emotions.
Unfortunately, it is not always the case. We speak more often for ourselves or for the members of our team than for the other party. This appears in two ways:
Also our usual manner to express ourselves is not always the most appropriate to create positive emotions. Our usual expression is full of judgments (“it is true that…”, your bedroom is a mess…”, I have a good idea...”, “it’s always like that…”). Judgements are a problem in negotiation because they create negative emotions.
This is obvious for negative judgments. A positive judgment is equally dangerous.
When I make a compliment, I am taking a parent position from which negotiation will be impossible. If I allow myself to tell you that you did right, this implies that I would also allow myself to tell you that you did wrong. I imply that I am your superior, who is entitled to judge you, in other words, that I can increase or decrease your identity.
The creation of an Adult-Adult relationship implies that the judgment should be eliminated from our expression. This is the basic principle of non-violent communication.
CLEAR SPEECH
One of my first bosses advised me to always assume that the judge was stupid, uneducated and lazy. This was not a judgement on judges. It was the best possible advice to bring me to calibre my speech to be easily understood. What is true for judges is equally true for negotiators and the same advice must be given to negotiators and mediators.
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The other party is not very willing to listen to you. They are concentrating on their goal: reaching a solution, which will be favourable for them. Their way of listening suffers all the weaknesses described at the beginning of the chapter on listening. You will then have to speak with words, which can be heard by them and in away, which will allow them to understand you in depth. As you want to understand the other party in depth, you want them to understand all the dimensions of your speech. They must understand your information, your emotions, your interests and your emotional needs.
A clear speech first avoids any jargon. It must be made of words, which we are sure the other party will understand. Even if you negotiate with specialists of the same technique as yours, do not take it for granted that they understand the jargon. These technical concepts must be used. Jargon is essentially used for identity purposes. It is s intended to impress the other party. It impresses (and thus creates negative emotion) proportionally to the difficulty to understand it. If you need to use it, take time to define the terms: “by this I mean…” and redefine the term in common language. You will do it simply showing your concern to be clear, without suggesting that they may not know what it means but only that they might have a different definition.
A clear speech demands short sentences. The longer a sentence the more difficult it is to understand. We saw that we cannot remember more than three ideas at a time. This is also true for the other party. The famous rule that says “A sentence should comprise more than a subject, a verb and a complement” sounds like a joke but you will certainly be better understood if you follow it than if you do not. Please notice that the rule does not allow adjectives because they carry judgements.
Do not forget that, in negotiation/mediation, the listener has no “rewind” button to hear again what he did not understand.
Add silences in your speech. Your listener needs them to have time to understand what you are saying. We tend to quickly spill out waves of words over the other party. We speak as if everything we said was understood, accepted and remembered by the other party. This results from our natural tendency to speak for ourselves rather than for the others. We are more preoccupied to have said than to have been heard.
INVITE REFORMULATION
We need to reformulate for our good understanding. The same applies to others but they may not know that they should reformulate. We should then invite them to do so.
By introducing silences in your speech, you will have given them opportunities to do so. If they remain silent, it does not mean that they understood everything. It may mean that they were not listening or that they were politely waiting for you to finish while thinking about what they will answer to what they had not really listened to.
You must then invite them actively: “Was I clear?”, “Do you follow me?”, “The important point is then…”, etc. once again, they can only remember a small number of ideas. It is then important to do that frequently enough to give them a chance to still have your ideas in mind when you interrupt yourself.
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You must make them listen actively, which means making them feel the need to fully understand you and making them understand that, if they do not take into account what matters for you they cannot expect you to take into account what matters for them.
SPEAK FOR THE OTHER PARTY
To be understood and accepted, you need to use the other party’s words. You do not speak to your gardener as you do to a university professor or to a General. Each social position calls for an appropriate mode of expression. You can expect some technical knowledge in some that others will not have. Depending on the level of education, people can hear you speak at different levels of abstraction, etc.
Speaking for the other also consists in trying to present things from appoint of view, which would be as close as possible to the other’s. It is not always possible or advisable. You must express your own feelings but in this case do it explicitly: “From my point of view, this is how I see things… I would not be surprised if you would not share my point of view but I wanted you to know it.” By doing that, your point of view is not a judgment that you try to force him to adopt and against which he will automatically resist but data that he will have to take into account to resolve the problem (positive emotion due to autonomy).
Starting an intervention by saying: “I tried to think from your point of view and I guessed that you must see things this way…”, guarantees respect from the other party. You just made a friend, even if you made a mistake in your assumptions. This also allows you to ask him to make the same exercise. It almost compels him to do so.
Knowing how to speak to the other party also means taking into account the cultural differences. We will dedicate some pages to this. These differences do not only apply internationally. They also exist between social groups. Engineers, doctors and lawyers jokes are very different. We tend to neglect cultural differences with our immediate neighbours and we sometimes wrongfully assume they exist with foreigners only because they are foreigners.
NON-VIOLENT COMMUNICATION
Non-violent communication (NVC) was invented by American psychologist Marshall Rosenberg, a student of Carl Rogers that we met when describing empathic-active listening. His research was certainly not about negotiation or mediation. His thinking contains psychology, but also philosophical and spiritual aspects.
I will limit myself to a brief presentation of aspects, which can be of interest to negotiators and mediators. I will not deal with some fascinating aspects of personal development because they are outside the scope of this book, in my point of view. But I strongly invite the reader to read Marshall Rosenberg’s book because these techniques can help in all dimensions of life. I must also say that some think that NVC can be far more helpful in mediation than I do, and that some mediators use it as the backbone of their training: they call themselves NVC mediators.
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We are in negotiation/mediation because there is a conflict: our wills are opposed and we are blocked. We will then have to say something that the other party does not feel like hearing and even less like listening to. By saying these things, we may provoke negative emotions. Because of the fear to create negative emotions, we often do not say these things. As a result of this, the negotiation/mediation never tackles the real problem and will not be successful.
So the question is: How to say those difficult things and provoke as few negative emotions as possible, and even possibly create positive emotions. But this is not enough because we can also have violent feelings and become angry. To be able to communicate in a non-violent way, I will have to do some work on myself to get rid of my own violence.
NVC and the Others
Let’s take the simple case of the negotiation between the mother and her child to have him clean his room. Most of the time it starts with: “Did you see what your bedroom looks like?”
In most cases, this will create an immediate reaction: The child refuses to do what his mother wants him to do. In an aggressive (violent in Rosenberg’s words) Parent-Child relationship, the child revolts as he can: he will, in words or behaviour, take a rebellious free-Child stance, meaning that he refuses to clean his room and possibly tells his mother that he won’t.
What is it that is contained in what the mother said that provokes violence in the child? Let’s try to go deeper into the mother’s thoughts and speech and to sort out the different ideas they contain.
Of course, if the mother says and feels so, it is due to the fact that she realized that the room was not tidy. This idea of a messy room actually contains several ideas:
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tolerance varies from person to person. For this lady, the level of mess is intolerable.
Most of these ideas are no problem.
An observation is not to be argued if it is expressed as such.
Emotions belong to the mother only. The child may think that it is excessive but he can only notice it. Discussing it would make no sense.
The need is a pure matter of fact and is personal: If the grandparents are coming for dinner in half an hour there is nothing to say about it. If the mother does not feel like cleaning when she comes back from the office, there is nothing to discuss: you cannot tell her that she should be happy with the occasion given to her to do so.
The request must be a logical consequence of the need and it should be negotiable.
Only judgements can be discussed because tidiness and untidiness and their level of tolerance are different from one person to the other. Judgements directly or indirectly touch the identity of the person: he is messy, then he is bad. Because judgements are not indisputable and because they challenge our identity, they provoke negative emotions: The mother was not compelled to judge the situation in the negative manner she did; she is the bad one.
Judgments call for an argument, which may be a bitter discussion in a negotiation or the avoidance by the child. In any case, judgements give the mother little chance to obtain what she wanted. She even made the child feel even more like not cleaning.
The recommendation of NVC is that you remove any judgment in your expression and that you structure it by clearly stating the various ideas instead of contracting them into one “lethal” sentence. Those ideas should, as far as possible be expressed in the following order:
The mother will then say:
With this formulation, the absence of judgment means that you should avoid saying:
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This neutral formulation avoids the feeling of being judged and thus depreciated, even potentially, by a judgement. This formulation does not create negative emotions, even if the child knows from the beginning that you are going to demand that he cleans his room and does not feel like it. He will still not feel enthusiastic, cleaning will still be unpleasant but the request is emotionally acceptable.
Observation, emotion and need are not negotiable. Only the request calls for negotiation. The terms of this negotiation are simple. Four answers are possible:
But even if there are still three possible negative answers for only a positive one, you have gained a huge advantage: you opened a negotiation. Whereas the child used to run away, he now answers and you can discuss priorities. Also, the first answer is not really negative. It creates an opening to another form of satisfaction of your need (another possible desire of yours). But the conversation will have to go on in the same way. In his book Nonviolent Communication: A Language of Life, Marshall Rosenberg gives numerous examples of such conversations.
In real negotiation, it is the same. The discussion will take place on the same themes. As in our trivial example, as long as your communication will be perceived as aggressive the other party will retaliated with aggressiveness or escape. There will be no negotiation. You will remain in a crossed transaction and you will not be able to move to a parallel one.
You need to use NVC to reach this kind of transaction.
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NVC and You
NVC is not only intended to create positive emotion with the other party. It also allows you to reduce your own negative emotions. You need to have reached a level of serenity to be able to use NVC toward the other party.
To be able to use NVC, you must step back and analyze what you really feel, what your deepest emotion is and what you really want.
Of course, when you feel, for instance, irritation, you think: “This man really makes me nervous!” as a consequence, you will speak in this kind of register: “Are you done telling me stupidities? This is useless and we are totally blocked.”
When you think: “This man makes me nervous!”, you inappropriately generalize. In reality, it is not the person that makes you nervous. It is the repetition of some of this person’s behaviours, which you judge negatively.
In order to become able to speak to this person in a nonviolent manner, you need to be able to separate the observation of what he says and of the repetition, on one side, and the person who says so, on the other side. You then have to understand what your judgement of his words is and what your emotion is when you hear him say so.
This man said several times that business was tough and refused to justify a loss in sales. You believe that he lies (judgement). This irritates you because it blocks the negotiation/mediation. You need to move forward. So you need him to say what he wants.
Now that you have clarified things with yourself, you are able to talk to him in NVC mode:
Observation: you told me several times that business was difficult. I told you that, if you could show me a real decrease of your sales, I was ready to consider a decrease of your rent. I did not receive this information. Actually I wonder if this is real. I do not even know what you really want and our negotiation is at an impasse.
Emotion: I am tired and I feel that I may be uselessly losing my time.
Need: I need to know what you want to be able to move forward.
Request: I am asking you again to show me the evolution of your sales and at least to tell me what you want.
Magical and Cursed Words in NVC
Some words have considerable negative or positive impact in negotiation/mediation.
“You” has a strong negative effect because it implies a judgement. As we already saw, even a positive judgement has negative effect because it creates a Parent Child transaction, which is rarely good for the negotiation/mediation.
“We” is to be used as much as possible in negotiation/mediation because it links the parties together.
“I” is a central word in NVC. If instead of saying: “You make me nervous”, you say “When I hear that I feel nervous”, you have removed 90% of the violence from the sentence, though you let them perfectly understand that this
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behaviour should cease and you have made it possible for it to stop without the resistance that the first formulation would have generated.
Conclusion on NVC in Negotiation/Mediation
NVC allows you to transform harsh criticism into a useful request. It allows you to take control over your emotions.
This clarification work over your perception (observation + emotion), of your need and your will calls for the same clarification on the other side.
In other words, this form of communication transforms a confrontation into collaboration. It brings the parties to express in a constructive manner what bothers them and what they need. It also allows the negotiation/mediation to quickly move forward toward a positive conclusion. If such a conclusion does not seem possible, at least both parties will have understood each other and the only remaining negative emotion will be the disappointment to not have a solution. Any violent feeling, any desire to harm will have disappeared.
SPEAKING TO THE IDENTITY
Empathic-active listening allows us to hear the emotions and to understand the other party’s identity. This precious information must allow us to speak to the other in a way that creates positive emotions when our words will be in harmony with his identity.
Role and Identity
A difference should be made between the permanent identity and the role a person plays in the negotiation/mediation.
Example: John is a karate champion. He defines himself as a strong and agile man. Respect and self-control are important values to him. This is essential to his permanent identity.
He is involved in negotiation with a communication agency for a contract in which his image will be used. He required the assistant of his agent and of a specialized lawyer. In the negotiation, the role he will play will be the opposite of what his identity should inspire him. He will be quite clumsy, ignorant of everything at stake and he will not take any initiative.
If the other party treats him in accordance with the role he plays, he may enjoy some advantage, as they will take time to explain things. But being treated as a semi-handicapped person may be unpleasant for him.
If, on the contrary, they speak to his deep identity and explain the legal and commercial considerations that he is not familiar with, at the same time referring to the traditional values of martial arts, they will gain his confidence much faster and more efficiently.
Distinguish Role from Identity
This distinction is not easy to understand with others. It even happens to us to become the victims of our own game, to forget our identity and totally invest ourselves in our role.
This difficulty should invite us to take time and think. This time should of course be taken before the negotiation/mediation: we should try to know
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whom we will be speaking with and to know them as well as possible. It is not always possible.
If we discover the other team when we arrive at the negotiation/mediation table, we will have to try and understand both their identities and the role they play. To understand their identity, we can use empathic active listening. To understand their role, transactional analysis will serve as a precious guide. We will then have to discover if both are synchronized or not.
That is why it is advantageous to have at least two participants on the team: to feel such subtle nuances. If you are by yourself, you will necessarily be caught in the heat of the negotiation/mediation and you will probably not have the necessary distance to distinguish the role from the identity. If there are two of you, one can remain silent and concentrate on the analysis of the role and identity of each of the participants. Being two will also allow you to discuss these points and not to take your first feeling as the truth. You will then have to take breaks to discuss your findings.
Speaking to the Role or the Identity
To allow you to reach the identity and the role, you will have to ask each other the following questions: how does x position himself towards us? As a Parent? As a Child? What type of Parent? What type of Child? What can we do to bring him to an Adult position?
What can we say about his identity? Can we positively respond to his identity? How can we do it?
If the role and the identity are not in phase, which one should we talk to? Should we also play two incoherent characters? How far?
The goal obviously is to bring the role in coherence with the identity to speak as Adults with the identity. We may be tempted to think that we should
Unfortunately, this would be too simple. You cannot treat the role without the identity because the role ensures a function for the identity: it protects it.
We play roles because we do not trust our identity. We are afraid that it will not be strong enough, we are intimidated, we then become provocative (Controlling Parent or Rebellious Child). We may fear that it is not adequate in the circumstance: case of the champion discussing his contract (Child). We may fear that our identity may be too strong and that it will put too much pressure on the other and we will play a humble role (Child).
To help the other party leave the protective role, they must trust their identity and use it to negotiate. We must help them in this move.
For instance, to speak to the champion negotiating his advertisement contract: “I understand that you are not comfortable with these questions that are unfamiliar to you. But I am sure that you will be able to quickly adapt to the situation. Let me explain what the usage is in this field.”
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Other example: “You made me clearly understand that you are quite relaxed with the litigation risk and I am sure that, with your experience, you made a very serious evaluation. But let me reassure you, I am not considering litigation.”
Those sweeping statements can of course be more complex at the level of role acknowledgement as well as at the identity level. In most cases, it will take a lot of time to actually reassure this person and many signs of recognition will be needed to establish an Adult-Adult transaction.
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Chapter 4
Saying No
“No” is a dangerous word because it often generates negative emotion. In some cultures, especially in Asia, it is almost forbidden because it makes the other party lose face so much that the party who said it lose faces too.
In the Western world, people tend more and more to not answer in order to avoid saying no.
But in negotiation/mediation we must refuse some ideas or propositions.
How can we do it while limiting negative emotions and possibly creating positive ones?
William Ury tried to resolve this paradox in his book The Power of a Positive
No. As the title explains, the idea is to turn no into a positive word.
The method is very simple: put a “yes” (i.e., a positive proposition) before and after the “no” (i.e., the negative proposition).
The first “yes” is the affirmation of our values or of our constraint s, more generally of what matters for you. The second one is an offer to move forward.
Example 1:
Yes: Outside the commercial department, we dedicate all our efforts to research and development because we want to remain the technological leaders.
No: Then we cannot undertake the after-sales service in lieu of our distributors.
Yes: But our discount to our distributors takes into account the after-sales service they have to ensure.
Example 2
Yes: I can only imagine myself as an adventurer and I want to be able to leave to go to the end of the world at any time for the most dangerous missions.
No: It would be inconsiderate of me to get married.
Yes: As long as you will accept this you will be my centre point because I sincerely love you.
This method is close to NVC.
The concept is to put forward our values, our emotions, our interests and our emotional needs.
Those values are generally positive and the other will accept them at least in principle. If he does not, he will have to accept that they are our personal
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values. He may prefer financial profitability to technological advance or a well-established position over adventure but he can only take your preference into account.
The first “yes” is then non aggressive. It is close to emotion in NVC. It is an invitation to share a new perspective. It opens the other’s mind and also the debate.
The “no” is a simple observation and, in principle, an indisputable one, of the opposition between the value you stated and the proposal you received or the idea, which was presented to you. The “no” is not a “no” from you to him but of your value to his proposal. You “separated the people from the problem”. It is not a confrontation between people, it is a contradiction between a value and an offer, which is not necessarily bad, but only incompatible with this value.
This method, just like NVC, is often used by armed forces in their negotiation with kidnappers, terrorists and other deranged persons. The negotiators state their constraints due to their status to refuse their claims (“we are the police, how could we let you go?”).
In front of the “no”, the famous feeling of blockage, which makes conflict resolution so difficult, may reappear and negative emotion, violence and resistance with it. You must then immediately reorient this potentially negative energy toward the hope for something positive by saying “yes” to it. You have to offer this positive idea yourself and immediately because the “no” might otherwise block the situation and prevent the appearance of any positive idea. The second “yes” is not necessarily a solution to the dispute. It is only something positive to help us move forward.
“But our discount to our distributors takes into account the after-sales service they have to ensure” is an invitation to discuss the cost of the after-sales services and to compare it to the discount offered. It takes the distributors’ interests into consideration. Instead of placing him in front of a close door, this opens a path for reflection.
In the same way: “As long as you will accept you will be my centre point because I sincerely love you” turns the attention away from marriage and invites the person to think about another type of relationship.
In this case, like in NVC for the request, the second “no” should be negotiable. It is not a solution; it is an opening for negotiation.
This technique does not guarantee an agreement. It does not guarantee that the second yes will be received with enthusiasm. It is intended to make the no acceptable. It invites to a collaborative relationship over the suggested idea.
1 Beyond Reason 2005