Problem Solving Negotiations

Problem‐Solving
Negotiations
 Basically there is a problem to be solved that involves
getting two or more people to agree on something.
 Basic problem solving is part of the skill set of any
effect negotiator.
 Defining a problem is critical.
 Often people fight over ancillary issues rather than the
real problem.
 In a mediation the mediator takes the time to source,
identify and quantify all the micro issues that create

the underpinnings of the primary argument.
 Mediators are trained to resolve the ancillary issues so
that the primary problem can be resolved.

Problem Identification Tips
 Don't accept the obvious; seek out underlying issues or other problems.
Often the other person or the parties may be unaware of the impact of
these 'lesser' issues.
 Prioritize the issues and seek to resolve the minor ones first. This will
create a more positive environment and may help lead to a global
agreement.
 Seek to put emotional reactions in perspective. If you can diffuse any
prevailing anger or distrust, you will have made a major advance toward
reaching an agreement.
 Separate the "wants" from the "needs" and focus on satisfying the
"needs" of each party. Often it is the "wants" that create the most
separation. And they are the least important aspect of the problem
once they are properly identified as "wants".
 Don't ignore or dismiss emotional needs or wants. Sometimes their
satisfaction is more important to one of the parties than the monetary
aspects of the situation.
three problem-solving techniques
 Focus on interests more than positions.
 Expand the settlement pie
 Develop creative settlement options
Focus on interests more than positions.
 A big reason that negotiations break down is

that counsel is often unable to distinguish
between the client’s stated positions and the
more general interests that underlie them.
 Drawing such a distinction can enable you
and your counterpart to think in more-

flexible terms about what your respective
clients truly need to settle the case, thereby
opening up avenues for settlement that did
not, at first glance, appear possible.
Expand the settlement pie
 Litigation is a “zero-sum” game: One party’s

gain is directly proportional to the other party’s
loss. Litigators often approach settlement as if
it too were a zero-sum game. This is known as
the “fixed-pie bias.”
 One of the advantages of negotiation over
litigation is that it enables us to look for value-
creating opportunities, i.e., opportunities that
expand the pie, instead of simply fighting
about how to divide up what appear to be fixed
resources.
Develop creative settlement options
 Negotiators often come to the table with a

limited view of what settlement outcomes are
possible.
 They discuss only a few options for settlement
and then try to compromise their positions to

make one of the options work.
 In the vast majority of cases, however, there are
more options for settlement than meet the eye.

 Having more options on the table increases the
likelihood of finding one that is mutually

acceptable.
BATNA
 BATNA – Best Alternative to Negotiated Agreement
 Concept derived by Roger Fisher and William Ury
 It is the best you can do WITHOUT THEM
 BATNAs are critical to negotiation because you
cannot make a wise decision about whether to
accept a negotiated agreement unless you know
what your alternatives are.
 Eg: If you are offered a used car for $7,500, but
there's an even better one at another dealer for
$6,500--the $6,500 car is your BATNA
 Your BATNA "is the only standard which can protect
you both from accepting terms that are too
unfavorable and from rejecting terms it would be in
your interest to accept.“
 In the simplest terms, if the proposed agreement is
better than your BATNA, then you should accept it.
 If the agreement is not better than your BATNA,
then you should reopen negotiations.
 If you cannot improve the agreement, then you
should at least consider withdrawing from the
negotiations and pursuing your alternative
Determining Your BATNA
 Fisher and Ury outline a simple process for

determining your BATNA:
1. develop a list of actions you might
conceivably take if no agreement is reached;
2. improve some of the more promising ideas
and convert them into practical options; and
3. select, tentatively, the one option that seems
best
For example, a community discovers that its water is being polluted by the
discharges of a nearby factory. Community leaders first attempt to
negotiate a cleanup plan with the company, but the business refuses to
voluntarily agree on a plan of action that the community is satisfied with.
In such a case, what are the community's options for trying to resolve this
situation?
 They could possibly sue the business based on stipulations of the Clean
Water Act.
 They could contact the Environmental Protection Agency and see what
sort of authority that agency has over such a situation.

 They could lobby the state legislature to develop and implement more
stringent regulations on polluting factories.

 The community could wage a public education campaign and inform
citizens of the problem.

 Such education could lead voters to support more environmentally-
minded candidates in the future who would support new laws to correct
problems like this one.
 It might also put enough public pressure on the company that it would
change its mind and clean up voluntarily.

In weighing these various alternatives to see which is
"best," the community members must consider a
variety of factors.
 Which is most affordable and feasible?
 Which will have the most impact in the shortest
amount of time?
 If they succeed in closing down the plant, how
many people will lose their jobs?

These types of questions must be answered for each
alternative before a BATNA can be determined in a
complex environmental dispute such as this one.
WATNA
 Worst Alternative to a Negotiated Agreement:
In a negotiation, your WATNA represents one
of several paths that you can follow if a
resolution cannot be reached.
 In any negotiation, it is important to make
sure that you establish your best alternative,

but also your worst so you can weigh your
options with greater accuracy, and, hopefully,
better results at the bargaining table
Circle Chart Analysis
 The Circle Chart is a simple framework that
offers users a system to think through
complex, multi-party or cross-cultural
negotiations, as well as written negotiations.
 Problem (What's wrong? What are its current
symptoms? What are the disliked facts, in
contrast to some preferred situation?)
 Analysis (Diagnose the problem. Sort symptoms
into categories. Suggest causes. What is lacking?

What barriers get in way of a solution?)
 Approaches (Generate broad ideas about what
might be done. Possible strategies, theoretical

cures)
 Action ideas (What might be done? What specific
steps might be taken to deal with the problem?)

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Problem‐Solving

identify and quantify all the micro issues that create

that the primary problem can be resolved.

 A big reason that negotiations break down is

and your counterpart to think in more-

 Litigation is a “zero-sum” game: One party’s

 Negotiators often come to the table with a

and then try to compromise their positions to

more options for settlement than meet the eye.

likelihood of finding one that is mutually

 Fisher and Ury outline a simple process for

sort of authority that agency has over such a situation.

stringent regulations on polluting factories.

citizens of the problem.

change its mind and clean up voluntarily.

many people will lose their jobs?

sure that you establish your best alternative,

into categories. Suggest causes. What is lacking?

might be done. Possible strategies, theoretical

steps might be taken to deal with the problem?)

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