Select Page

Negotiation and Mediation
University of Iowa School of Law
Gittler, Josephine

Interest-Based Negotiations For Lawyers Outline
Professor Gittler
Fall 2017
Book: Getting to Yes
Negotiating is a basic means of getting what you want from others. It is back-and-forth communication designed to reach an agreement when some interests are shared and others are opposed.
Conflict is a growth industry. Everyone wants to participate in decisions that affect them, and fewer and fewer people will accept decisions made by someone else.
A soft negotiator wants to avoid personal conflict. He or she will make concessions readily to reach agreement, and so will end up exploited and feeling bitter.
A hard negotiator takes more extreme positions and holds out longer. That exhausts both himself or herself and his or her resources, and harms the relationship with the other side.
The Principled negotiation method looks for gains wherever possible, and where interests conflict, to insist that the result be based on some fair standards independent of the will of either side.
Principled negotiation is an all-purpose strategy. Unlike almost other strategies, if the other side learns this one, it becomes easier to use rather than harder.
Ch 1: Don't Bargain Over Positions
A wise agreement is one that meets the legitimate interests of each side to the extent possible, resolves conflicting interests fairly, is durable, and takes community into account.
Any method of negotiation should be fairly judged by three criteria: It should produce a wise agreement if possible, it should be efficient, and it should be amicable.
Arguing over position produces unwise outcomes
Negotiating over a position leads to lock-in, as the more you clarify your position and defend it against attack, the more committed you become to it. Your ego becomes identified with the position.
The more attention is paid to positions, the less attention is devoted to meeting the underlying concerns of the parties.
If an agreement is reached with positional bargaining, it may reflect a mechanical splitting of the difference between final positions, rather than a solution crafted to meet any legitimate interests.
Other dangers of positional arguments
Extreme positions, small concessions, and the large number of individual decisions regarding what to offer, what to reject, and what to concede, make positional bargaining highly inefficient.
Moreover, positional bargaining strains and sometimes shatters relationships, and is even worse when there are more than two parties involved.
Being nice is no answer
Soft positional bargaining may be efficient, but the agreement may not be wise. Moreover, you are vulnerable to domination by someone who plays a hard game of positional bargaining.
There is an alternative
The game of negotiation takes place at two levels: At one level it addresses the substance; at another, it focuses, usually implicitly, on the procedure for dealing with the substance.
Each move you make w

on to the “people problem.”
Two kinds of interests: the substance and the relationship
Beyond substantiative interests, a negotiator also has an interest in the relationship with the other side. In some cases, an ongoing relationship is far more important than a single negotiation's outcome.
The relationship becomes entangled with the problem. We treat the people and the problem as one, and so merely identifying the problem may sound like a personal attack.
Also we draw from comments on substance unfounded inferences, which we treat as facts about that person's intentions or attitudes toward us. We don't consider other explanations.
Positional bargaining puts relationship and substance in conflict. An entrenched position may show that you care little about the relationship.
Disentangle the two; deal directly with the people problem
Change how you treat people to deal with people problems. Base relationships on mutually understood perceptions, clear two-way communication, expressing emotions without blame, and a forward-looking outlook.
All people problems, including your own, fall into these categories of perception, emotion, and communication.