When I was a small child aged between 6 and 12, my favourite word was “negotiation”. I loved that word with a passion. It was not the meaning that enthralled me, rather the sound. I thrilled to the way you could break it down and roll it around in your mouth. Occasionally, I would lose it briefly and would ask my Father to remind me again of my favourite word. Like the great dad he was and is, he would remember that for me and give it back to me immediately, whereupon I would savour it and hug it to me like a person recovering buried treasure. Sometimes, I would ask the meaning of the word but I would quickly forget the meaning. In time, I also lost the word’s special magic for me. Is it not mysterious then that I should have become a solicitor and even more than that a collaborative lawyer and mediator?
Now the magic is in the meaning of the word and what it signifies. Whenever we hear the word “negotiation” in the context of a war zone or a crisis, we breathe a sigh of relief. Time has been bought, we are back from the brink and the hope of peace beckons. Yet, when we consider marital breakdown, so many of us think only in terms of court, rather than negotiation. We need to reflect on that. Our lives would be unimaginable without negotiation. It informs our every day and all our relationships, business, politics, state and world affairs. There is no part of life on this planet which is not affected by negotiation. It is, therefore, extremely important that we understand the true meaning of this word, various styles of negotiations as well as the many forms it takes.
Negotiation is a dialogue intended to resolve disputes, a bargaining tool to gain advantage, a mechanism to produce an agreement, a blueprint for action or a process to craft outcomes. It can be all of the above or just some of the above. When we think about negotiation most of us think in terms of two opposite sides jockeying for advantage. As a lawyer, I would generally think of negotiation in terms of one side looking for a bigger slice of the pie over the other i.e., hard line bargaining. We refer to that as distributive or adversarial bargaining and it is generally the way that solicitors and barristers negotiate. Like everything, it has its place and is a very useful tool at times but that is all it is, a tool. Like most tools, it is ill suited to certain circumstances, people and situations. Many of us understand negotiation only in terms of distributive bargaining and are not aware of any other method of negotiation. There are many different ways and styles of negotiation. Another approach to that of distributive bargaining with which we are probably familiar, might be to hammer out an arrangement in the best interests of the parties i.e. take a more holistic approach and look on agreements from the point of view of creating optimum gain rather than maximum gain.
In many countries ordinary people are master negotiators though they may have little theory informing their practice. Generally, they are masters of distributive bargaining. I am thinking, for example, of many Arabic , Indian and Asian cultures where bargaining is a way of life. We are all pretty familiar with this way of bargaining and most of us tend to try and conduct our relationships in a distributive bargaining way. We may employ various strategies to that end but essentially we are jockeying for advantage either in our employment or at home. Distributive or adversarial bargaining is generally ill-suited as a resolution tool for personal relationships. Perhaps it is more than time that we import a more creative theory of negotiation into our everyday lives especially when dealing with relationships. How might we do this?
We might start by looking at problems as opportunities i.e., opportunities to create. We might, accordingly, agree to only accept creative outcomes for any problem, situation, circumstance or crisis. To do that we must exercise understanding. We must spend time understanding the nature of the problem in all its myriad detail and we must take time to understand ourselves as we approach this problem. What emotional baggage are we bringing to this, how is our personality informing this situation? Emotion enters into the negotiation process in a number of ways. For example, whether or not we like the person with whom we are in dialogue, what baggage we are bringing into the discussion on a particular day, for example, a stressful family or business interaction prior to the negotiation will affect the way we conduct the negotiation. Unintentional emotional triggers arising during the negotiation will also impact severely on us and unless we have a degree of self awareness such triggers will adversely affect the discussions and we will be none the wiser as to what exactly happened. Being sensitive to our own emotional baggage is very important but being sensitive to that of the other person/s is also vital. If we are paying close attention we can pick that up as we go along and doing some research prior to the negotiation may also help us to be aware of issues that might arise. Understanding the other person means a great deal of listening, clarificatory questions and feedback. Our own negative emotions can cloud our ability to hear and to be creative as well as colouring our attitude to outcomes. Positive emotions can make us confident and insightful creating more likelihood of positive outcomes. Knowing all this, could we possibly conduct negotiations ourselves for ourselves? I believe we can and some do. Some of us have a natural ability in this area but it is important for all of us to understand that with awareness and understanding all of us can learn how to do this. We need to learn how to do it and in small ways, we can practice it easily and occasionally bring it off by, for example, using relationship issues such as “who does the cooking” as an opportunity for practising such techniques. However, when it comes to major issues like separation or marital breakdown, our emotional baggage may not be so easily overcome so as to enable us to dialogue effectively. We might at that point seek the help of a mediator or a collaborative lawyer to assist us in doing this work.
When we negotiate with someone close to us, it is helpful to think carefully about the person we are negotiating with and not just concentrate on the issues to be discussed. What I am about to say is not the rambling of a tree hugger but rather a very carefully thought out way of helping us to get into the right frame of mind to negotiate. In order to enable us to be open to that person we might focus on gestures or actions that we can look back on in our relationship with that person for which we are thankful. In that mood of thankfulness we might then reflect on our overall goal in the coming negotiation. Without the capacity to extend gestures to the other and without the capacity to appreciate gestures from them, successful negotiation, particularly when it concerns relationship issues, will be well nigh impossible. When we reflect on our overall goal we can then think about how we are going to approach matters or another way of putting this would be that we can strategise. In the mindset of thankfulness and bearing in mind the overall goal, we can look at the issues from the perspective of trade off and/or creating value. We walk a mile in the other person’s shoes and we ask ourselves what will they value, what is important to them and this enables us explore the various options available to us. Then we need to reflect on what is important to us. Only then are we ready to commence the negotiation. Remember that in this context we may call the negotiation, a conversation, such as “I have to talk to John about that” knowing full well that John will be running a mile from that conversation, however, it is, in fact, still a negotiation. If you can combine the above with a nice musing tone, and you need to practice this, plenty of questions and genuine openness, you are on a winner. It is not as easy as it sounds but it is not impossible either and the essentials are the same in any negotiation. Getting into the right frame of mind is three quarters of the way. If we commence negotiations from places of fear and anger then we have no hope of achieving solutions.
The advantage of mediators and collaborators is that they can do all of the above so much more easily because they have no personal stake in the outcome. It is the personal stuff that makes it hard and that is why few of us can manage negotiation for ourselves. Essentially, however, what I have described above is the process of mediation or negotiation and it is also the bones of a collaborative negotiation which is what collaborative family law is all about. When people think about the word “negotiation” they think of something which is almost magical. Secluded armed gun men are talked out into the open and contained by the process of negotiation. Suicides are talked down from the brink, hostages are released, centuries of intransigence are overcome. No wonder I was delighted by that word as a small girl. Did I sense the power of negotiation? Who knows but I know that I also wanted to be a magician. There is a connection between the two. Now I am working with the magic myself.