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Everything is ready for the negotiation/mediation and we have trained to communicate in a positive and efficient manner.

We now have to deal with the problem.

How to do that?

It depends.

It depends on the type of problem. Various types of problems call for different types of treatment and solutions.

In his book: “The Mediation Process”, Christopher W. Moore, defines three types of problems, which need three types of treatment: structural problems, evaluation problems and conflicts of interest. The following developments are inspired by this distinction

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Resolving Structural Problems

A structural problem is a problem, which appears in a pre-existing and harmonious relationship because of a change in the structure in which the relationship evolves.

This apparently complex definition actually translates into something very simple: two persons have a nice relationship. An external event occurs, which puts them in conflict. It is not their fault. Only circumstances have changed and put them in trouble.

Some examples will help clarify the concept.

1. We are in a village. There is a well in the village where the village housewives come to collect water every morning. There is a drought. There is not enough water anymore for the whole population. Every morning, the housewives fight over the water. They used to have nice relationships but a change in the climate puts them in conflict.
2. Two colleagues work in the same office and have the same job. They like each other and are even friends. Their boss retires and a new one is appointed, who prefers one of the colleagues. He gives him all the good work and gives all the bad work to the other. The relationship between the two colleagues will soon deteriorate. Though no one did anything wrong to the other. It is an event (the change of boss) in the structure (the company), which puts them in conflict.
3. China entered the World Trade Organization. As a consequence, products arrive on the Western market at a lower price than the local cost. Companies have to close or to move to China. Labour conflicts appear. The managers treated their employees well and the employees did their work well, but a change (the arrival of China in the WTO) in the market (the structure) puts them in conflict.

These structural conflicts are characterized by the fact that only one of the five solutions that we determined is possible: cooperation. More precisely, other solutions can be considered but they would be too expensive.

Let’s move back to our examples:

1. In the village, one could think of rationing the water (distributive solution). In the short term, it could be a solution. In the longer term, it is not. They need more water. They need to dig the well deeper, or to dig another one or build a pipeline or buy a truck to bring water from somewhere else. Who should pay? The whole population (possibly through taxes). Only this cooperation between citizens can provide a sustainable solution.
2. In the case of the two colleagues, if they want (and particularly if the favourite agrees) to save their relationship, the work has to be

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redistributed between them. They must co-operate to this effect, either by redistributing the work by themselves or by going together to the new boss and suggesting that he distributes the work equally in the future.

3. In the case of China, to face this situation, shareholder and employees must cooperate to allow the company to delocalize or to shut its business and to help employees find new jobs or train or retire in the best possible way.

The treatment of structural conflict is simple: cooperation.

But there are three practical difficulties:

1. Before the conflict clearly bursts out, tensions generally appear between the parties. If these tensions are expressed somewhat violently (insults, physical violence), a relational conflict may appear and hide the structural conflict. There will be a lot of work to do to find the cause of the tensions and the original problem.
2. These tensions may make cooperation difficult. Who wants to work in the future with someone who insulted you?
3. The atmosphere of tension may inhibit the parties’ creativity to imagine possible ways to cooperate. They still see their relationship as a tense one due to the problem. It is difficult to reprogram their imagination to discover peaceful ways of working together.

Such cooperation can take many different forms for very different goals.

In the first case, the parties cannot do anything against the perturbation (the drought) and they will have to live with it.

It is the same if the colleagues decide to redistribute the work between themselves. But if they go to their boss, they try to get rid of the perturbation (the new unfair distribution of the work).

In all these case, the parties try to resume their relationship.

On the contrary, in the case of the closing of the factory, parties should cooperate to put an end to their relationship, which cannot survive, in the best possible manner.

At the beginning of the preparation, ask yourself if the problem is structural or not. This must be done quietly, trying to set aside the relational difficulties, which may have arisen. Be careful to not call structural a conflict due to a third party in circumstances where there was no previous relationship between the parties. In such a case, cooperation will only be one solution among others.

If you determine that it is actually a structural problem, be ready to see the other party shout at you at the beginning of the negotiation/mediation and to spend the necessary time to make them realize that the problem is structural and that there is no other solution than cooperation.

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Resolving Conflicts of Interests

Principled Negotiation

The major input of Roger Fisher and William Ury in their famous book Getting To Yes is to have explained how to resolve conflicts of interest. This was paramount for a number of reasons, which had not all appeared at the time. For instance:

1. Most conflicts are conflicts of interests. We saw some example of cases where the interests disappeared when the relational conflict was resolved. But there has to be a conflict of interests to let the emotional side have an opportunity to be expressed and to give negotiation/ mediation an opportunity to be used. So what they explained was meaningful in all conflict resolution processes.
2. They came up with one great and very simple idea, which to my knowledge had never been expressed before: there are interests behind positions. They drew fantastic consequences from this initial idea, which are used today by millions of negotiators and mediators all over the world.
3. Their ideas also helped other thinkers discover ways to deal with what they had not fully considered and particularly regarding emotions. I believe that their way of thinking about conflicts helped people, and at least me, make the link between their “principled negotiation” and research in psychology.

I do not know if Fisher and Ury felt that their book was a small step for them but it was certainly one giant leap for mankind.

When describing the orange story, we saw the difference between interests and positions. We also thought about the nature of interests to include them within the needs while differentiating emotional needs from interests, which can be satisfied with money.

Fisher and Ury do not ignore emotion but give it a low status. To them it brings trouble in the negotiation on interests, which is the only real negotiation. You must get rid of it to be able to speak seriously. My opinion is different but it does not matter here. Their input is priceless and has never been contradicted, provided you accept that it only concerns interests in the sense of the lower two levels of Maslow’s pyramid. This is what I will try to do here while strongly inviting the reader to also read Getting to Yes.

We know that interests are what I need (at those two levels) whereas positions are my demands to the other party. I need vitamin C (interest) and I demand the orange (position). I need to make a cake and I need the rind for that (interests) and I demand the orange (position).

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Fisher and Ury showed that negotiation on positions is very difficult and may have negative effects and that we should rather negotiate on interests.

NEGOTIATION ON POSITION

Hard Positional Negotiation

Here are two characters: John and Peter. They are both ready to write a text together. To do that they must choose whether they sit at the table next to the door or at the table next to the window.

John wants to work next to the door and Peter wants to work next to the window.

If they only express their positions, they will have to force the other one to go to the table they wish and they will soon find themselves in the position of these fighters.

They are putting pressure on each other and blocking one another. They are not moving toward the door or the window.

What is the likely outcome of their fight? The stronger will win independently from the question of knowing whether it was better to work near the door or near the window. The outcome will not be the solution of the problem but the predominance of the strength of one over the other one.

Actually what does winning mean? Look at this picture and guess what is going to happen in a few seconds: one of them will fall down. He will be said to have lost. The other one will be said to have won.

What will he have won? Will he have managed to work next to the door or the window? Obviously not. He will have made him fall down and working together will be out of the question forever.

The winner lost. His only satisfaction is pride but he went against his own interests. He lost on the object and on the relationship.

Let’s imagine that one of these two men realizes the absurdity of the situation and tries to get out of it. He simply cannot. If he stops putting pressure, the pressure of the other will cause him to fall down. There is no way to get out of this confrontation in an intelligent way. Whoever tries, loses.

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In this case, what happens to the other one? He falls down too. His own strength makes him lose his balance, and he will fall with the one he made fall down.

If the confrontation had been verbal, that is if it had been a negotiation, things would have happened in exactly the same way. Instead of fighting with the strength of their muscles, they would have fought with the strength of their “arguments”.

As we saw in the case of the orange, the debate would have turned to “I am right, you are wrong”, which would have soon turned to: “I am good, you are bad”. We would have witnessed an escalation, which would have deteriorated and maybe destroyed the relationship.

In the same way, both “adversaries” would have been blocked because, in order to reach a solution on where they should work, one would have had to admit that he was “bad”, which is intolerable.

Then, in the open fight, the winner would have lost because, as he broke the relationship, he will no longer be able to work with the other, whether by the door or by the window.

We are then tempted negotiate softly. This is not any better.

Soft Positional Negotiation

In order to avoid deteriorating the relationship, we may be tempted to make moves, which show how much we value the relationship. If we are negotiating on positions, these will be positional moves. This means that we will soften our positions in order to preserve the relationship.

“I could claim €100,000 against you. But to show you that I am acting in good faith, I will only claim €80,000.”

This is a typical formulation of soft positional negotiation. The negotiator who said that, if he could actually claim €100,000, just paid €20,000 to be appreciated by the other one.

Do you think that he was successful? If someone told you that, would you feel like paying €80,000 solely for that reason? Probably no more than you felt like paying €100,000. As a matter of fact, the negotiator who tried to negotiate softly on positions, just lost €20,000 .

If you are a hard positional negotiator, you will probably answer that he must be joking and that you do not owe him anything. He will immediately understand that he lost €20,000.

If you are a soft positional negotiator, you will answer that you could say that you do not owe him anything but that, in order to show your good will you are ready to pay €20,000. Do you think that the other party will feel like accepting €20,000 because you made this apparently generous move? Certainly not. This was your turn to lose €20,000.

Many negotiators are afraid of confrontation and continue on the same path. They keep on negotiating not with regard to the problem but in consideration of the value of the relationship. The solution will be the consequence of the value that each party gives to the relationship.

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An agreement may be found and the relationship will go on but this method does not allow a creative solution nor the full mutual satisfaction of the parties; If they had negotiated in that way, the sisters would only have reached the 50-50 solution. They would never have thought of going out to buy a second one or of asking why they wanted the orange.

In other words this method is reductive and reaches results, which are disconnected from the real needs of the parties. It is a waiving method not a winning method.

Conclusion on Positional Negotiation

Negotiating on positions has the following consequences:

1. To the existing problem (of having or doing), it adds another problem. This problem regards our being. It is then far more difficult to resolve than the initial problem.
2. In hard positional negotiation, the pressure you put on the other party automatically produces pressure of the other party on you. The only statement of your position produces negative energy against you. In soft positional negotiation, your concessions make you lose.
3. Negotiation on positions makes concessions more difficult. Any concession implies that you admit a weakness, which may bring you to further concessions that you did not want to make.
4. Positional negotiation endangers your relationship with the other party.
5. The outcome of the negotiation is independent from the problem. It depends either on the strength of each party (how long can each wait, how much money does each party have, who is the boss etc.) or on the value that each party gives to the relationship independently from the object.

You cannot find any good reason to negotiate on positions.

Instead of negotiating on positions, we should negotiate on interests.

NEGOTIATION ON INTERESTS

Why is the conversation on interests easier than on positions? Because interests are always legitimate, even if they may sometimes look awkward.

If I am only interested in beetles, you may think that I am missing a lot of things in life but this does not harm you and you cannot object to this.

Even interests that lead people to crime are legitimate. Defence lawyers know that in the heart of each criminal there is a deep pain, which makes them unable to satisfy their needs in another way. The affective or sexual needs of a rapist are legitimate. The way he satisfies them is not. It is criminal.

On the contrary, any position, because it may frustrate the other party, is illegitimate for this other party, even if it is legally justified.

Interests belong to the individual sphere. They do not harm the others. We have already experienced this when we described nonviolent communication.

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At this stage we can observe how much the situation has changed because we now negotiate on interests instead of positions and how much we broadened our ability to find mutually satisfactory solutions.

Separate People from the Problem

When you state your interest, you set a problem for both parties. Even if the other party thinks and says: “This is not my problem!”, it becomes so because they will not be able to have a solution without satisfying your interests. This of course works both ways. You must make sure that the other party’s interests are satisfied to have a solution, which will be accepted.

If John had told Peter that he wanted to work near the door because he had to be able to leave quickly, and if Peter had told John that he wanted to work next to the window because he could not see properly and needed additional light, they could have thought together about the question of: “Is there a way to work in a clear space and be able to leave quickly?”. They could have chosen to work near the window and to stop working a little earlier or to work near the door and to turn the light on or to move one of the tables to the centre of the room. They would have immediately started working, which would actually have allowed them to finish earlier.

According to the phrase used by the inventors of principled negotiation, negotiation on interests separates people from the problem. They used to be adversaries challenging each other’s being; they become colleagues, which means people in charge of resolving a problem together. The problem comprising the interests of each of party, it is no more MY problem or YOUR problem but OUR parties problem.

We are together in charge of the resolution of OUR problem from the very fact that each stated his interest.

This affirmation of your interest changes your posture in front of the other party. By hiding your interest and by pretending to be totally detached, you were behaving arrogantly and were blocking yourself in this behaviour.

Admitting an interest was like forfeiting your position.

On the contrary, by recognizing that you have an interest, you put yourself in a more humble position from which you can move without fear of falling from high up.

We set the relationship aside to only concentrate on the object. We can discuss strongly, even harshly, without endangering our relationship, without one of the negotiators feeling personally attacked and destabilized in his being.

This is rather simple when the object and the relationship are quite different. For the two sisters, the orange and their family link are two totally different things.

What happens when the relationship is the object of the negotiation/ mediation?

Here is the case of a company manager, which was really successful in its business this year. At the end of the year, he goes to his boss and asks for a bonus due to his success. His financial situation is fine and he does not have any particular investment project. Like all of us, he would always be happy to have more money but he does not need money. Actually his claim is for

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the acknowledgement of the service rendered to the company. He wishes to have a financial translation of the gratefulness, which he believes the company and his boss owe him. Actually his need is not money but the expression of gratefulness, in other words the relationship between him, his boss and the company.

Let’s imagine that the boss does not have a budget to give him a bonus. If they negotiate on interest in the financial meaning of the word, they will go nowhere because there is no real financial interest of the manager. Their negotiation would very much look like a negotiation on positions, and create a violent frustration in the manager who will probably look for another job elsewhere. The manager will be frustrated and the company will have lost a good manager.

If the negotiation can be oriented toward what really matters for both parties, on needs in the broader meaning of the word, i.e., recognition by the manager and the compliance with the budget for the boss, they will certainly find alternative solutions like promotion, an article in the in-house newsletter, etc.

If they can objectivize this relational need, they will obtain a double success because this objectification is already a success.

If the boss is able to tell the manager: “Actually I understand that you feel we have not fully appreciated your success and wish it to be publicly recognized”, this sentence will already be a form of appreciation of the success and of the legitimacy of the claim. But this will not imply any particular response to the claim. Anyone would understand that this does not mean that the boss has a budget to pay the bonus.

If he actually does not have the budget, the parties will be able to discuss the type of action, which could be taken to satisfy the appreciation need.

Being Hard on the Problem and Being Soft on the People

In positional negotiation, the more we insist on being satisfied, the more we attack the other party. We need to soften our demands.

When we negotiate on interests, we do not attack the other party even if we strongly insist on the satisfaction of our interests.

Then, when negotiating on interests, we can be much tougher on interests than we would have been on positions. And this does not create emotional resistance from the other party.

In other words, negotiation on interests makes us stronger than positional negotiation. It seems paradoxical at first glance. It becomes obvious when you think about it.

Generating Creative Alternatives and Mutually Satisfactory Solutions

When we negotiate on positions, we are stuck within the space described by these positions and the BATNAs.

In the previous example, if the manager is asking for €10,000 and if the boss has no budget at all, the negotiation seems to be between 10,000 and 0

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and there will probably not be any solution because no other figure than 0 can be accepted by the hierarchy.

On the contrary, once they have recognized the manager’s need and the constraint of the boss, they can think together about non-financial modalities to satisfy the need.

They will be able to imagine all sorts of ideas, which could not emerge from a negotiation on positions.

We saw the same phenomenon in the orange story where the two sisters could find mutually satisfying solutions (cooperation and win-win) from the moment when they recognized their mutual need of an orange.

Negotiation on position can only lead to distribution, constraint or renunciation. Only interests based negotiation can lead to cooperation and/ or win-win solutions, i.e., to mutually satisfactory solutions.

THE STEPS OF INTERESTS-BASED NEGOTIATION

• Describing your interests
• Discovering the other party’s/parties’ interests
• Make every participant acknowledge all the interests and values at stake and the necessity to satisfy them to reach a solution
• Work on creating options
• Chose a solution among the options

Describing Your Interests

Spontaneously, we tend to refuse to speak about our interests. We believe that having needs is a weakness to be hidden.

This is of course absurd. We all have needs and everyone around the negotiation/mediation table has at least one need to be satisfied; otherwise they would not be there.

There is then, in principal, no obstacle in disclosing your interests.

Moreover, it is necessary to disclose our interests if we want it to be taken into account by the other party. How can they try to satisfy a need they are not aware of?

Here is a small Jewish story to help you remember the necessity to disclose your interests.

Moshe is in his bed. He cannot sleep and keeps moving in his bed so that it wakes his wife Sarah up.

Sarah: Aren’t you sleeping, Moshe?

Moshe: No, I can’t. I have a problem.

Sarah: Which problem?

Moshe: I owe €20,000 to our neighbour David. I should pay him in the morning and I don’t have the money.

Sarah: Don’t worry, Moshe. I’ll take care of that.

She gets up and rings at David’s door. It is 2 am.

Sarah: David, Moshe owes you €20,000?

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David: Yes.

Sarah: And he should pay you in the morning?

David: Yes.

Sarah: Well he doesn’t have the money.

She goes back home, closes the door goes back to bed and tells Moshe.

Sarah: Now you can sleep quietly. It’s David, who has a problem.

If Sarah had not gone to David to tell him, David would have put pressure on Moshe, who would have tried to escape his obligation. The two friends would have fallen out with each other. Moshe might have been ruined, which would not have put David in a better situation.

Because Sarah admitted the problem before the due date, David’s problem becomes to know when Moshe will be able to pay him and possibly how he could help him make good business to make him solvent again.

The difficulty in explaining your interest is that the other party must be convinced by what you say and not believe that it is a pure allegation aimed at putting pressure on them like a bluff.

Therefore simply stating your interest may be dangerous. The other party may have doubts as to your sincerity.

There are two ways of avoiding that:

• Not only stating your interest but explaining it starting from known facts or facts that can be verified;
• Or use a third party.

If instead of saying: “I am thirsty”, you first explain that you had been shopping all morning and that you didn’t have time to drink anything, your words will become more credible, provided that the other party is convinced that you went shopping, possibly because you are still holding your bags in your arms.

There used to be an African man around the place where I lived in Paris who spoke with the strong accent of his country, and was asking for money from people walking in the street. Instead of simply asking for money, he would come and talk to them explaining that he had arrived in the morning from his country and that he did not get his luggage at the airport. So he was asking for money to have dinner and pay for one hotel night until his luggage would arrive the next morning. It was working fantastically because everybody thought it was true. He was well dressed and looked like a travelling businessman rather than a beggar. His story had to be true. Of course, it became a little less credible when he told you the same story a week later.

To make your interest credible, your explanation has to be credible. The way to make your explanation credible is to have it start from known or verifiable facts.

But you may find yourself in front of somebody, who is not receptive and continues to tell you: “It’s not my problem”. How can you make him understand that it is his problem because it is yours?

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The best way to do so is to ask for advice: “Of course it is my problem and I have to resolve it. If you were in my shoes what would you do? Do you have an idea of what I could do that would resolve my problem and would satisfy you?”

You negotiate for an organization with a hierarchy above you, you can pose your problem with your boss to the other party: “I understand your point of view but how could I sell this to my boss without risking being fired?”

The advantage of this presentation is to replace confrontation between two people by collaboration on your interests with your boss. If the other party accepts to enter into this problematic, you know that your interests will be taken into account.

In some cases a third party who knows you well and is trusted by the other party may inform them of your interests. The information coming from a trusted person will probably be trusted too.

There is not always somebody who is available and ready to help you in those circumstances.

Sometimes you will have to use third parties such as the press or to provoke events, which will draw the attention on your interest (Messages in a trade show, public relations campaign, etc.). These events will make your words credible when you will explain your interest.

You still have to discover the other party’s interests, as they are your problem too.

DISCOVERING THE OTHER PARTIES’ INTERESTS

Most of the time the other party will not spontaneously disclose their interests. On the contrary, they will try to hide them when you try to learn about them, for the same reasons that made you hesitate to disclose yours. It is absurd but that’s how it is most of the time.

You then have two design strategies to make the other party speak about their interest or spontaneously disclose it.

If you were the first to speak about your interest, it is possible that the other party will spontaneously do the same so that the negotiation will not only be around your interest and that their interest also be taken into account.

If this is not the case, here are some possible strategies:

Question: “Why?”

The easiest way is to ask why you are presented such a position. When your sister tells you that she wants the orange, ask her: “Why do you want the orange?”

But some people may have very negative reactions to this question. They consider that they do not have to justify themselves in front of you. You will answer that it is none of your business or, once again: “It’s my problem”.

This question also tends to look backward to the past, which is by definition painful, as the interest was not satisfied.

So you may want to change the question.

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Question: “What For?”

Instead of asking about the origin of the claim, you will ask about the future, in case the claim would be satisfied: “If I let you have the orange, what will you do with it?”

The difference is important because the one receiving the question will not feel that he has to justify himself. On the contrary, he will show you that he has a good reason to ask for what he is asking. He has an opportunity to value himself instead of devaluating himself by giving justification.

But you may again find resistance.

You may ask the question in other ways and I recommend it, as it will probably be less aggressive for the other party. For instance, you can ask: “Why is it so important for you?”, “I’m not sure I understand what really matters for you in this case?”, “How do you see the future of your business?”

The concept is to turn the other party’s attention to the future to make them say how they would like the future to be, though open questions: “I imagine that if I pay you this amount, you will take a beautiful trip.” — “ Not at all I have to redo my roof and what I am claiming is only part of the cost.”

The negotiation/mediation table is not always the ideal place to ask these questions and obtain trustworthy answers. It may be advisable as far as possible to have done that earlier.

Question: “Why Not?”

If they hesitate to tell you what the future will be in case their claim will be satisfied, you may ask why your offer is not acceptable. Explaining one’s frustration is also revealing one’s needs.

You will then ask: “Why not do it this way…?”, “What is the matter with this proposal?” or “and if you were offered this, would it be a problem?”

Question: “What If…?”

By asking this question you draw the attention to another possibility. You make them think of something else. Instead of having their attention focused on the problem as they see it, you offer them another point of view. Their reaction will be significant and will disclose their interest.

“And if somebody else had taken the orange, what would you have done?”, “And if it was a lemon?”, “How would you react if our company offered a scholarship to your son for its studies in the United States?”

Question: “What Should I Do?” or “What Would You Do in my Place?”

This question must be asked this way, as an open question:

“What would you do in my place?” and not as a closed question:¹“In my place you would do the same, wouldn’t you?”

By putting the other party in your shoes you will see how their interest impacts your vision and then what their interest is.

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Question: “How Far Does Your Proposal Take My Interest into Account?”

This is another form of the previous question.

These two questions will paradoxically help you discover the interest of the other party by asking them about your interests, which you have expressed.

Empathic Active Listening

We have studied this technique in detail . It consists in taking into account what the other said and in making an assumption on his emotional state.

Example: “If I give you all you are asking for, you will probably feel rich and powerful…”.

Possible answers: “Yes and this is my childhood dream!” or “Not at all because I have debts to pay!” or “With that I will have to pay for the studies of my children…?”, etc. In all cases, the parties left the confrontation on positions. The other party started to speak about what matters to them. You may not already know what is their deepest interest but what he has already said is enough to start a series of open questions, which will allow you to discover it.

The interest of this method is that people rarely lie there about what they really feel because it is part of their identity.

General Concept

As far as your partners are reluctant to speak about their interest the idea is to make them speak about their emotional needs and to connect them to desires that you can negotiate.

You may remember that difference between needs and desires. We saw that needs can be fulfilled by different desires. If I am thirsty, I can have all sorts of drinks.

With these questions we try to bring them to speak about emotional needs. Emotional needs are not easy to deal with because they do not necessarily relate to something negotiable. If somebody needs to be loved, what does it mean? Sex? A family lunch? A good spouse at home?

Our method will help them translate their emotional needs into desires because we can negotiate desires and we cannot negotiate emotional needs.

ACKNOWLEDGING THE INTERTES AT STAKE

To be successful in your negotiation, you must allow the other party to satisfy their interests and they must allow you to satisfy your interests.

We are facing a sort of mathematical problem: “Knowing that my interests are A, B and C and that yours are X, Y and Z, what can we do to best satisfy our mutual interests?”

This seems simple. But there is a difficulty. Once a party has accepted to discuss their interest, they will concentrate on this interest that they are discussing and forget the other ones (including theirs, which they are not discussing at this moment).

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In other words, language is necessarily sequential. But we want all participants to be simultaneously mindful of all interests, even if they seem contradictory, absurd or impossible to satisfy.

To this effect we have to forget speech and use our only sense, which allows us to apprehend several realities at the same time: the sight.

It is most advisable to use a black board or a flip chart on which one will write all the interests to be satisfied so that they will remain present in the minds of the participants at any time.

This method will have a considerable psychological side effect. The configuration of the negotiation will totally change.

The use of the board will make the eyes of the parties converge toward the board, instead of remaining in confrontational opposition. This immediately creates an important psychological effect. The parties do not feel that they are confronting each other. They feel they are working together.

This will only be true if both parties remain seated at the table while a third party is at the board. Otherwise the party, who is at the board, will appear to be ascending over the other one for two reasons:

• The party of the board is standing whereas the other one is seated;
• The party at the board holds the pen, which is the instrument of power to write on the board.

The party at the table will quickly stand up to come and write too. The board and the pen will become symbols of power, which will add a new difficulty to the negotiation.

If we are in mediation, the mediator will write the interests on the board and this will not be a problem. In direct negotiation, you will have to be assisted by somebody external to the negotiation (secretary, intern, young associate…) who will stand at the board and write.

Once this enumeration of the interests is completed, you will need to have each participants say:

• That they understand that you all have to deal with the whole problem;
• That the satisfaction of one without the satisfaction of the other will not be a solution;

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• And that the levels of satisfaction of all will have to be comparable, if you cannot reach the full satisfaction of all.

This explicit expression of the needs and of the responsibility of the parties is extremely important to move from the confrontational phase. It creates a problem resolution dynamic. This is once again the theory of engagement.

Creating Options to Satisfy All the Interests

Spontaneously we tend to go directly from the problem to the solution.

Problem: there is only one orange and there are two of us. Solutions: one takes it or they share it or they abandon it.

Starting from the problem to directly go to the solution, we have little chance to discover cooperation or the win-win solution. These solutions suppose that we go above the problem and that instead of treating the lack of orange, we go out to discover the needs and understand how to best satisfy them.

There are several methods to this effect.

The Resolvers Methods of the Five Solutions

Using the five types of solutions that we discovered is a possible guideline to look for solutions. It is a very good one indeed as it allows to immediately identify the best possible solution. I call this method the Resolvers method as I created it when mediating and teaching through my company called Resolvers.

We must first see if the interests of the parties are compatible and if a win-win solution is then possible. If the interests are actually compatible, most of the time there is no need for options because there is no problem anymore. Sometimes the modalities of the satisfaction of both parties may lead to a number of options.

If the interest are not compatible and a win-win solution is not possible, we will wonder if cooperation is possible for the best satisfaction of all parties. In this case there may be several options. In the example of the village, which does not have enough water, several ways of cooperating were possible: digging the well deeper, digging another well, installing a pipeline from a spring or another well, buying a truck to bring water from elsewhere etc.

Attention! Cooperation is not an option. It is a type of options and one must look for all the possible options within the field of cooperation.

If cooperation is not possible we will ask ourselves if distribution is.

Again distribution is not an option. It is a type of options, which will only be considered if we cannot find a win-win solution or ways to cooperate. There can be many ways to distribute. 50-50 is not the only option.

In a more complex example, for instance the sale of a machine, the distribution can include several parameters: the options on the machine, the price, the guarantee, the maintenance, the modalities of payment, etc.

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The search for options will become a complex exercise because there will be several levels of options: there will be several options for all these parameters and then options concerning the combinations of the parameters. For instance a higher price paid on instalments and a lower price paid cash.

Finding all the possible options and all the possible combinations to reach the best solution, such is the difficulty. We have to analyze the case in a way that takes us away from immediate reactions, allows us to go above the problem to see it with a wider scope and think out of the box.

To help us in this difficult task, Fisher and Ury invented the circle chart (see below).

If none of these solutions is possible in your case, you will of course have to consider renunciation before starting war…

The Circle Chart

Here is a modified version following the work of other authors.

We must go from the description of reality to its analysis in terms of needs and values. Instead of a search in two phases (problem/solution), we will launch a search in four phases: 1) Reality. 2) Unsatisfied needs and values.

3) Which needs and values should be satisfied? 4) What can we do to satisfy them?

In this wheel, the left zone represents what can be negative in this situation (reality at the bottom and critical view at the top) and right zone represents the positive elements we are looking for (conceptually at the top, in practice at the bottom).

The lower part represents the present in the real world: The negative present situation to the left and the possible positive options to the right. The upper part represents the intellectual world in which the present situation is analyzed and where one thinks about the conditions of satisfaction.

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Going by steps from the lower left quarter clockwise, we will create a number of options in the lower right quarter, i.e. possible actions to try and satisfy the values and needs described in the previous quarter.

It allows you to think out of the box, which means not to limit yourself to the problem as it is posed but to pose it in new ways, which open new perspectives. This may disorient some participants and negotiators may feel uncomfortable freely imagining options in front of the other party. You better start this work separately or with the members of the team.

This method also allows you to validate your options. When you have an option in the fourth-quarter, imagine it is a reality and put it on the first one. Then turn around the wheel. You will see if this option is actually possible.

Example: There is a dispute between two 50-50 partners. At least three options will appear: A sells to B. B sells to A. A and B sell to a third party. Take the first option, put it in the first quarter, move to the second-quarter, you may find that B does not have the money, move to the third quarter, B needs to get money, move to the fourth-quarter, B may borrow money or sell his house. Take the first sub option (borrowing money) and put it in the first quarter, move to the second-quarter, any lender will demand collaterals, B cannot provide any, move to the third-quarter, etc.

I would like to add a more pleasant method: humour. By advancing humorous, even crazy, options, you will help other participants and yourself to unlock their imagination. It seems trivial but it is in fact rather efficient.

With these methods we will be able to generate creative options. But what shall we do with these options? Of course, we will want to select one or combine several to choose the most appropriate one.

These three methods are not exclusive of each other. They complete each other and must be organized among them. I suggest you start with humour.

Finally, do not close this phase without having checked that no one still has an option to offer.

Parties may wish to use the circle chart to probably to first imagine options separately from the other party. This is probably necessary for their intellectual comfort. But the exercise should still be made with the other party.

We said that it is indispensable that all parties feel they played a role in the creation of the solution. It is in the research phase that each one will have the opportunity to be creative.

To make sure that participants are fully creative, this research should be done as a brainstorming²method. This means that participants, authors or recipients of the options, should refrain from judging them.

Expressions such as: “I have a good idea, let’s do that…” or “That’s not an option, it will never work!” or “You just had a great idea, which will save us.” Should be proscribed. All judgments, whether positive or negative, will generate an immediate discussion on an option without looking for other

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ones. The parties may adopt this solution whereas other ones may have been preferable but were not looked for and then not found. Distributive ideas will probably show up first. You may agree on it and miss a possibility to have a win-win or a cooperative solution.

Furthermore, the judgement will inhibit the creativity. The participant whose idea will have been criticized will not want to take this risk anymore. On the contrary, the participant whose idea was approved will be satisfied with himself and will not feel the need to make any effort anymore as he already “succeeded”. Anyway he will never find any idea as good as his.

Here we are meeting the same difficulty as with interests: when discussing an option, we do not think of the other ones.

To avoid forgetting an option, we need to use the flip chart.

One will never insist enough on the usefulness of this tool (particularly if it is used by someone external to the negotiation or by the mediator). The success of a negotiation/mediation, in terms of quality depends mainly on it, which allows to see all the options in order to choose the best one and which places the negotiators in a collaborative rather confrontational position.

Also, as far as options are concerned, the way they are written on the flip chart is important. One must avoid that options be perceived as belonging to one party or to the other. If an option is seen as coming from a party, the solution will become a party’s solution, which will make the other party refuse it.

To avoid this, whereas the interests will have been written in as many columns as there are parties because interests are personal, options will be written in their order of appearance without any link to any party.

Then the solution, which will have been determined by both parties will actually be both parties’ solution, no matter who thought of it first.

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CHOOSING THE SOLUTION AMONG THE OPTIONS

According to Fisher and Ury, this choice must be made according to objective criteria, which must be chosen before starting to search for options.

The use of “objective criteria” may be as good solution when these criteria exist. But it is rarely the case. If it were the case, there would be no need to negotiate.

Imagine a simple negotiation for the sale of a house or an apartment. There are many criteria to determine the price: the location, the surface, the configuration, the condition it is in, the light it receives, the view if any, quietness or the noise, the prices for comparable transactions, etc.

All these criteria can be called objectives. But some people are more or less sensitive to the noise, the darkness, the view etc. this means that these so-called objective criteria remain quite subjective depending on the potential buyers.

Moreover, if we move toward a win-win solution or a cooperative solution or even a renunciation solution, we do not need objective criteria.

Objective criteria can only be useful for distributive solutions.

Even in this case, the objectivity of these criteria will be arguable. If you ask a party what would be the condition for a solution to be acceptable, they will often reply that it has to be “fair”. This can mean many different things: both parties gain as much, both parties lose as much, both parties lose or win in proportion to their sizes, both parties gain or lose in proportion to their interests in this matter, that the solution be of the same kind as a previous one, etc.

None of these understandings of a “fair” solution is really objective. If you have ever asked for several evaluations of the same object by several experts, you know what I am talking about.

Actually an expert cannot give you the value of an apartment because no apartment has any value. Its value depends on what the seller is ready to accept and what the buyer is ready to offer. A buyer who is looking for a home would probably offer a different price that one trying to make an investment.

The expert will give you the average price on comparable apartments. The comparison also raises questions. The expert may not be aware of the ultimate criteria for the buyer: the condition, the charm, the view, the noise, etc.

Anyway the result the expert will reach will not measure the satisfaction of the needs of the parties.

To me, the level of satisfaction of the parties’ needs seems to be the only criterion to make a choice between the options. It is a very subjective criterion indeed but this is not a problem as the choice belongs to the parties. A third party should be objective. Parties by essence are subjective.

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Resolving Evaluation Conflicts

Unprincipled Negotiation

On July 9, 2006, in Berlin, in the football world cup, Zinedine Zidane is playing the last match of his career against Italy. He is not only one of the greatest French football players of all times but he became an icon and a model.

But during the match, an Italian player, Marco Materazzi, tells him something that he feels is an insult. Despite:

• The inevitable ejection from the match,
• The likely loss of the match for France,
• The stakes of this world cup match,
• The deterioration of his image,
• The fact that this deterioration and ejection take place during his last match as a professional player,

Zidane hits Materazzi with his head and has to immediately leave the match.

He thus ends an exceptional carrier with a sanction and the image of a bad move. This move shocked the world so much that there is a full-size statue of it and if you look for Zidane on the Internet, this is one of the first pieces of information you receive.

At that instant, the emotional need to react totally overwhelmed all the interests at stake: in sports, in image and in money, etc.

Zidane “evaluated” the insult above all of his “objective” and “reasonable” interests.

This is no exceptional behaviour. We often evaluate an object in a totally unreasonable manner. This is usually linked to intense emotions.

An evaluation conflict is a conflict in which the parties disagree on the values more than on the interests. In other words, they disagree on the emotional needs at the top of Maslow’s pyramid rather than on the interests at the bottom.

HOW TO DETECT AN EVALUATION CONFLICT?

An evaluation conflict is not always expressed as such. It may look like a conflict of interests. Such is the case of the heir, who over- or underestimates an asset in the succession (this looks like a conflict of interests) to block the liquidation and take revenge for the frustrations of his childhood.

In the opposite case, a conflict of values can hide a conflict of interests. Karl Marx wrote on this topic. The religious wars between the Protestants and

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the Catholics in France in the 16th century and the French revolution in the 18th century can be seen as the emergence of the bourgeoisie and a reflection of its interests. The bourgeoisie needs freedom to be able to do business: this is the definition of liberalism. The value of religious or political freedom is linked with commercial and financial interests.

In such cases, how can we determine if we are facing conflicts of interests or conflicts of values? When both are mixed, the question will become: out to distinguish each type of conflict to try and resolve them?

Example:

1. Father: What is this hideous thing?
2. Son: This is called a piercing. Don’t worry, you could not have known.
3. Father: Why did you do that?
4. Son: I am old enough to know what I want to do…
5. Father: Do you think it will help you in life to look like this?
6. Son: What do you care?
7. Father: Not much anymore actually because I cannot see what I could do to help you get an internship in my friend Johnson’s company… I’ll never introduce someone with a piercing.
8. Son: If this is so, I would rather not work for someone like him!
9. Father: So what are you going to do this summer?
10. Son: Remember I told you that I am going to South America with a friend.
11. Father: How will you do that if you haven’t made money with Johnson.
12. Son: I was expecting it. The money blackmailing. I don’t care, I’ll go on vacation at Grandma’s and I will sell ice cream on the beach. There are even people selling ice cream with piercings. You should know.
13. Father: Do you think that Grandma will want to have you looking like that?
14. Son: Yes, because she thinks it would be good for me to take a trip to South America!
15. Father: I do too.
16. Son: So, why don’t you let me go?
17. Father: I encourage you to go. I think this adventure would make you more mature. I also think that working in Johnson’s company would better help you to discover what you want to do rather than selling ice cream.
18. Son: Could you ask Mr Johnson if he would take me with a piercing?
19. Father: I think you would have a better chance if you would ask him yourself.
20. Son: I’d never dare!
21. Father: You dared to have a piercing. It was certainly to show what you were able to do, wasn’t it? So, go do it!
22. Son: OK, I’ll see…

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Values are never expressed but they clearly appear in lines 1 through 8. Between these two characters, who meet every day and particularly with a young adult, it is no use to say things explicitly. It is anyway not desired.

The son is clearly trying to assert his personality by shocking his father, at the risk of shocking other people around him. The rejection of the piercing by the father is welcomed by the son who is thus showing his autonomy (line 8). This is a parallel transaction (Parent-Rebellious Child)

The dialogue does not end because both value the trip to South America. The son sees it as an initiation and the father encourages him.

Beyond the question of the trip, they implicitly tell each other that they share a fundamental value: the passage of the son to adult age.

The removal of the piercing cannot be a condition of this passage because it would mean that the son would accept the father or Mr Johnson’s values.

The conflict resolves on the initiatory test to call Mr Johnson to ask if he will accept him with a piercing. Will the son do it or not? We do not know but whatever decision he takes, it will be an adult decision marking an important step in his life.

This evaluation conflict is mixed with conflicting interests: To take that trip to South America the son needs money. The son tries to assimilate both (line 16). The father then raises another evaluation conflict: The acceptance of the piercing by society in general and by those who are able to give him work and money.

Then the son faces dilemma: Should he emancipate by shocking his father or by taking his place in society and in this company?

We can imagine that the son is going to remove his piercing to go work at Mr Johnson’s company and will not ask him if he would take him with the piercing. If this is the case, it will only be due to the behaviour of the father: He shows that he shares the values of his son (line 17) and that he respects his courage by thinking that she will dare to talk to Mr Johnson because he dared to have a piercing.

If the father had accepted to ask Mr Johnson if he would take his son with the piercing, the effect expected from the piercing by the son would have been missed. The father by doing so would have confirmed the son in his status as a Child, which would have justified another piercing or maybe a tattoo.

At the beginning, the son is ready to sacrifice his interest to his values. He refuses his internship at Mr Johnson’s because Mr Johnson, like his father, refuses piercings. The simple reference to his interest does not make him decide to remove his piercing or forget about the value he gives it but, to the contrary, reinforces his opposition.

During this phase, he speaks in a rather violent, provocative and disrespectful manner.

He is ready to remove the piercing and take his own interests into account as soon as the father has acknowledged the emancipative value of the piercing.

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Relational Conflicts and the Evaluation Conflict

If you compare the characteristics of a relational conflict and that of an evaluation conflict you must be struck by the similarities.

But there is a big difference between them.

In transactional analysis, a relational conflict will be analyzed as between a Nurturing Parent or an Adult on the one side and a Rebellious Child on the other.

To the contrary, an evaluation conflict will oppose two Controlling Parents. In the above example, the first remark of the father is clearly of a Controlling Parent. The son responds in a similar mode, trying to make him understand that his values are acceptable, that others, like the grandmother, share his values and that the father should adopt them.

WHERE DO OUR VALUES COME FROM?

What makes me a Catholic and gives a statue of Virgin Mary such importance for me? I was probably raised in a Catholic family and maybe a Catholic school. All along my education, I was impregnated by the values of this religion. At an adult age, I decided that it would guide my spiritual life, the choices of my life, and probably the creation and the education of my family, etc., and this is a day-to-day practice.

This value system was built exactly like my identity. It is part of my identity.

You cannot negotiate on values: It would be like asking the other party to renounce to be what they are and to become somebody else. It is worthless trying; this would only may the conflict worse.

RELATIONAL CONFLICTS, CONFLICTS OF INTEREST AND EVALUATION CONFLICTS

Conflict of values will not be negotiated on what is their essence: the values.

Thus evaluation conflicts are totally different from conflicts of interests. Conflicts of interest call for negotiation on the interests. Evaluation conflicts forbid negotiation on values.

Conflicts of interest are resolved by reason: One tries to bring the parties to an Adult state to negotiate without passion.

Conflicts of values are totally irrational. They will be resolved by solutions, which belong more to the world of symbols than to logic. That is why we talk about the unprincipled negotiation.

HOW TO NEGOTIATE AN EVALUATION CONFLICT?

The parties must first acknowledge not only the difference in their values (which is usually evident) but also the cause all their differences: different frames of reference.

For a Protestant, a statue of Mary, the mother of Jesus, made of wood or stone, is a work of art. For a Catholic, it is an object full of religious meaning and almost sacred.

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To deal with this problem, you should not only acknowledge that difference but also acknowledge the difference in beliefs and in values deriving from these beliefs.

Recognizing that the other party’s values are different from your own, and that the frames of reference are also different, is generally not a big problem. They will not share your views but if you explain to the Catholic the views of the Protestant and vice versa, they will understand.

To the contrary, acknowledging your own values is far more difficult. Because these values are part of our identity, by explaining them you feel you are trying to justify them and that means that we are challenging those values and what we are. It implies that we admit that we could believe otherwise and be somebody else. We can hardly stand it but we can certainly not go further by challenging ourselves.

In a way, it is less difficult and dangerous to physically fight than to challenge our values and beliefs. Our values are like our backbone: they help us stand upright. If we challenge all these values we have no personality, no identity: We are nothing. This perspective scares many people, who therefore become violent when their fundamental values are challenged.

In other words, in negotiation/mediation, you can expect that parties will admit that their evaluation derives from the fact that they are Catholic or Protestants, leftist or rightists, American or Chinese etc. But you cannot expect that they will negotiate the question as to whether one should be one or the other and you cannot expect that parties will change their fundamental beliefs or their frame of reference. You cannot even expect that they will justify their beliefs.

Once you have accepted that, how to deal with the problem in practice? You will first have to have the values described, then you will have to look for common values, and finally you will look for signs of recognition of common values. If you cannot find any common values, you may look for superior values.

Values Descriptions

Here are some questions that you may use to help people describe their values:

You must obtain answers in terms of values: It is unfair, he speaks to me as if he was speaking to a dog, he never listens to what I say.

It would have to be fair, to be respectful, etc.

From there, you can consider moves, which will witness that the values at stake (fairness, respect, etc.) are being taken into account.

As a party, you have to ask yourself the same questions because it is so difficult to acknowledge our own values.

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Looking for Common Values

When people describe their values, you may want to see if some of these values are common to the various parties.

Example: Mr Smith created a company that manufactures electronic components and is very successful. Its products are known for their technological value, their reliability and their reasonable prices. Mr Smith is considering retirement and wants to sell his business. With one of his advisors he is trying to establish a price. Everybody considers that the Smith trademark is an important value as it carries all the central values of the company: technology, reliability and reasonable prices.

Here is a potential buyer: the globally known BMI group. When they look at the price, they are surprised by the value given to the trademark. Mr Smith explains, and BMI answers that the Smith products are going to be renamed “BMI plus a number” and that the trademark has no value for the purchaser, who will only use it to inform the market of the purchase of the company of the new denominations of the products.

For Mr Smith this is of course a financial disappointment. But he will be able to negotiate on this point by explaining that he is selling the company with its trademark and that if the purchaser does not want to use it, they can only blame themselves and that he do not want the trademark, Mr Smith reserves the right to sell it to somebody else.

The fact that the trademark will not be used any more raises another problem for Mr Smith, who may refuse to sell to BMI because of this even if BMI would accept to pay for the trademark. For him, the trademark purchase at a high price and its use by the purchaser are the evidence of the success of his life. Under this trademark, these products are his products. The quality of the products is a reflection of his own qualities. The continued use of the trademark is for him emotionally the guarantee of longevity, if not of eternity. If they stop using the trademark, the world will soon have forgotten the remarkable man he is/was. He will only be a rich retired man, who keeps telling everyone about his memories of electronic components, which bores everyone.

To him, this may be as important as the financial value of the company.

If the BMI group wants to buy Mr Smith’s Company and not use the trademark any more, they will have to offer him some financial compensation but also emotional compensation.

The question will be to know how to do it. How can the pride and the desire of eternity of Mr Smith meet the one single trademark policy of the BMI group?

Actually, Mr Smith’s values (technology, reliability and moderate prices) are exactly why BMI wants to buy the company. BMI can perfectly recognize those values and recognize that they are the fruit of the work and personal qualities of Mr Smith. But they need to do it in another way than by the continued use of the trademark.

The reason for this is that they have a policy of a unique trademark. All the products of the group are called BMI plus a word or a number. This is what makes the groups so powerful and makes it able to purchase Mr Smith’s company.

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There is no way Mr Smith can be critical of a policy to make the company powerful. This is what he has been trying to do all his life for his own company.

It means that both parties share the same values, even if they have a different opinion about the price of the trademark.

LOOKING FOR SOLUTIONS BASED ON COMMON VALUES

One can obviously find all sorts of ways to honour Mr Smith: his portrait in the boardroom, his statue in the hallway, a University prize called after his name, calling a factory by his name, etc. BMI will have to discuss with him what he prefers as compensation for the discontinuation of the trademark. Then the discussion on the value of the trademark will be much easier.

Actually Mr Smith did not really want money for his trademark. He wanted the purchaser to value the trademark has highly as he did and, because they would have paid a high price, they would use it and would not let him be forgotten. When he was trying to determine the value of the trademark, Mr Smith was probably not explicitly conscious of this motivation, which remained subconscious.

This will be the difficulty of this negotiation. When BMI will start arguing on the price, who will be able to understand that Mr Smith is not necessarily looking for money? Who will be clever enough to make Mr Smith realize and admit so? Who will be able to convey this idea to BMI without making Mr Smith lose face?

This kind of problem can rarely be resolved without a mediator.

Just like in the story of the teenager and his piercing, the solution will be in the sharing of some values.

Each party has a frame of reference, which means several values organized as a system.

The concept is to see if the parties share some values. If they have some common values, then they can build a solution based on these values. Actually, the definition of the solution matters less than the fact that the existence of this symbol will reflect the recognition of those values over time. He will probably prefer an explicit plaque that the employees will see than a pompous and expensive reception.

In the teenager story, the common value is the emancipation of the teenager. It will bring the father to accept the piercing, if his son has the courage to ask Mr Johnson if he would accept him with the piercing. It will bring the son to remove the piercing if Mr Johnson asks so because the recognition of his value by his father makes the piercing useless.

In Mr Smith’s case, as soon as BMI will have recognized Mr Smith’s values and will have confirmed that they adhere to those values and their willingness to honour those values but in another way, the problem will be almost resolved.

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Solutions with Apparently No Link to the Problem

The solutions to an evaluation problem are generally very different from what could be expected when the problem arose. The father wanted the son to remove his piercing and the son is going to call Mr Johnson. Mr Smith wanted money then and will have his portrait in the boardroom.

The characteristic of an evaluation problem is that “the problem is not about what the problem is about”. The fact that makes the problem appear can be almost anything. The father and son have been juggling from one question to another. Each question raises the same problem of the emancipation of the son. It finally crystallizes around the internship and the solution becomes about how to make it possible.

Obviously selling the company is a huge step for Mr Smith. Somehow he needs the link to be maintained. This question crystallized around the price of the trademark. If it had not, it would have been around something else.

Whatever the problem would have been, the solutions would have remained the same.

The solutions to an evaluation problem are related to the values not to the initial factual problem. That’s why the solution does not seem related to it. This is particularly true in business negotiation/mediation where the commercial and financial interests are usually hiding the values.

Superior Values in the Absence of Common values

It may have been that the parties do not share any value. We will then not have any basis for a solution.

The classical strategy in this case is based on invoking superior values: a foreign threat, for instance.

The usual superior value in family law would be the interest of the children. Every day in family lawyers’ offices, the interest of the children it is invoked, so that parents who do not share any value any more, get organized for the best of their children.

The use of common values brings the parties close to reconciliation: We remain different but we have something in common forever. On the contrary, the use of superior values leaves the conflict intact. If two farmers are fighting about the property of a field and the army drafts them, they will not fight about the field as long as they will be fighting against the enemy. But when they return, if they both return, the conflict will resume. The superior value of national interest will have suspended the conflict but will not have resolved it.

Conclusion on Evaluation Conflicts

The procedure to resolve an evaluation conflict will then go through the following steps:

• Recognition of different values;
• Recognition of different frames of reference;
• Research of common values;
• Research of solutions based on those values;
• Failing any common value, research for a superior value;

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• Adoption of a (often provisory or partial) solution based on the superior value.

The creativity exercise is to find a solution to the conflict because its irrational side that deprives us of a guideline and also because the differences in our systems of the values inhibit our ability to invent solutions, which may be acceptable by all.

This is again why mediation is often useful to resolve these conflicts that negotiators have a hard time overcoming.

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Conclusion on Negotiation/Mediation

One can use force to coerce the other and make him do what we want. The parties may also forget their claims to avoid a conflict that would ruin their relationship.

The parties may also negotiate, which will allow them to reach three types of solutions:

• The win-win solution;
• Cooperation;
• Distribution.

The first two solutions allow full satisfaction of both parties. The third one brings some satisfaction to each of the parties.

Negotiation/mediation being a dialogue, the parties need to have a good enough relationship to be able to engage in this dialogue.

The first problem of the negotiators will be, either before the negotiation or at its beginning, to make sure that the relationship is good enough to allow the dialogue.

This dialogue will only permit the treatment of the problem if the parties have the necessary information. The second problem of the negotiator will then be to make sure that the parties have this information. If not, using the methods above, he will try to make sure that the necessary information is received by each party or replaced by trust.

The negotiator will then try to determine what type of problem he will have to handle:

• Structural problem;
• Interests problem;
• Evaluation problem.

You will treat the problem with the methods described above depending on the type he is facing.

Obviously, one cannot strictly divide the negotiation into different chronological phases: relation, information, determination of the type of problem and resolution of the problem.

The parties will come to the negotiation table and be impatient to discuss the problem.

It is through the first exchanges that the negotiator will understand if there is a difficulty in the relationship and if information is needed before dealing with the problem itself. If such is the case, as soon as the difficulty will appear, he will have to take care of it because there is no way to move forward before the difficulty has been resolved.

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Also, a conflict can have several dimensions. It may have a structural origin and we know that we should look for cooperation. The various possible ways of cooperating may raise evaluation problems (what is culturally acceptable?) or problems of interest (how much will each party contribute?). It can be imagined that the three types of problems would show up in one case. Obviously the problems should be treated in the following order: structural, evaluation, interests.

Respecting this order of treatment of the problems will ensure that you will obtain the best possible result. It doesn’t mean that there will always be an agreement but by acting otherwise, it is unlikely that you will be able to satisfy all the emotional needs and all the interests of all parties. Thanks to this method, it becomes possible.

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