Maximizing Interests Through Negotiation Leadership in the Trial Courts/District Court Philip L. Lee Results Leadership Group, LLC & University of Maryland School of Public Policy

Key Elements of Interest-Based Negotiation From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc 1. Identify Interests 2. Generate Options to maximize interests 3. Apply Criteria where needed Team Conversation “Grow the Pie” “Divide the Pie”

What is a Successful Negotiation? (Elements of Interest-Based Negotiation) The agreement or result achieved: 1) Identifies and satisfies interests:  Ours, well  Theirs, acceptably  Others, tolerably 2) Leaves no joint gains on the table: is among the best of many options (i.e., maximizes interests) 3) Is legitimate -- parties view the outcome as fair and sensible as measured by criteria From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc.

Key Elements of Interest-Based Negotiation BATNA Commitment From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc 1. Identify Interests 2. Generate Options to maximize interests 3. Apply Criteria where needed Team Conversation Desired Relationships Efficient Communication “Grow the Pie” “Divide the Pie”

What is a Successful Negotiation? (The Seven Elements of Interest-Based Negotiation) (continued) The agreement or result achieved: 4) Includes commitments that are well planned, realistic, and operational 5) Is better than our BATNA - Our Best Alternative to a Negotiated Agreement 6) The process is efficient – there is effective communication 7) The process helps build the kind of relationship we want From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc.

Key Elements of Interest-Based Negotiation BATNA Commitment From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc 1. Identify Interests 2. Generate Options to maximize interests 3. Apply Criteria where needed Team Conversation Desired Relationships Efficient Communication “Grow the Pie” “Divide the Pie”

Positions vs. Interests Position: One party’s solution to an issue Interest: One party’s concern about an issue Issue: Plans for Friday evening. Person A’s position: I want to go to Chez Pierre Restaurant and then go see the movie Rocky VI I. Person A’s interests: ____________________ Person B’s position: I want to have your roast lamb for dinner and watch the Terps play basketball on T.V. Person B’s interests: ____________________

Positions vs. Interests Position: One party’s solution to an issue Interest: One party’s concern about an issue Issue: Time for weekly administrative meeting. Person A’s position: I have changed the time of our weekly meeting to 8:00 a.m. Person A’s interests: ____________________ Person B’s position: You cannot require me to come to work before 9:00 a.m. Person B’s interests: ____________________

Court Administrative Team: Maximizing Interests (Option 1) 1.Identify issues that you might want to address 2.For one issue, identify the interests of (a) each team member and (b) any other significant parties/stakeholders 3.Generate options to maximize/better satisfy those interests 4.Bonus step: For other stakeholders, what is their BATNA?

Court Administrative Team: Maximizing Interests (Option 2) 1.Identify an interest or interests (individual or shared) you would like to maximize or better satisfy 2.Generate options to maximize/better satisfy the interest(s) 3.As you consider each option, identify any other parties/stakeholders who have interests that are in possible conflict with the option. Where you identify conflicting interests, generate another option that will acceptably satisfy that conflicting interest. 4.Bonus step: For each other party/stakeholder, what is the party/stakeholder’s BATNA?

Negotiation Analysis PartyInterestsOptions (connect to interests) BATNA

Negotiation Analysis PartyInterestsOptions (connect to interests) BATNA

ElementDescriptionGuidelinesPreparationSuccess Underlie positions Agreement is better to the extent it meets the interests of the parties Clarify Interests, not positions: Ask why? Why Not? Look for interests that are shared Capitalize on different interests What are our interests? What are their interests? What is their Currently Perceived Choice? A problem or an answer? The agreement satisfies interests :  Ours, well  Theirs, acceptably  Others, tolerably The full range of possibilities Can agreement be better for one party without being worse for another? Invent Options for mutual gain: Separate inventing from deciding Generate options through brainstorming - No evaluation - No commitment - No attribution Can we invent more possible agreements? Can we change their choice? Can we separate inventing from deciding? The agreement leaves no joint gains on the table: it is the best among many options From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc Options Interests

ElementDescriptionGuidelinesPreparationSuccess If agreement is not reached Self-help: Does not require the agreement of the other party Agreement should exceed BATNA Know your Best Alternative To a Negotiated Agreement (BATNA): Evaluate their BATNA? Reality-Test both BATNAs What’s our BATNA? Can we improve it? What is theirs ? Can we worsen it? Legitimately? The agreement is better than our BATNA Fair as measured by external benchmark Criterion or principle beyond the simple will of either party Such external standards of fairness include intl. law, precedent, standards, or principles, i.e. reciprocity Use Objective Criteria to help evaluate options: Ask Why is it fair ? Look to fair procedures Use the test of reciprocity Are we using objective criteria? Criteria that will appeal to them? To third parties? The agreement is legitimate - parties view the outcome as fair and sensible as measured by criteria From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc Criteria (Legitimacy) Alternatives

ElementDescriptionGuidelinesPreparationSuccess Parties have improved their ability to work together rather than damage it Ability to deal with differences Are the parties better/worse to deal with future differences Separate people from the problem: Deal with the Relationship & the substance, each on their own merits Attack the problem, not the people Can we improve the interaction? More concerned/softer on the people? More rigorous/harder on the problem? Should we consult before deciding? The process helps build the kind of relationship we want Outcome reached efficiently without waste of time or effort Effective two-way communication Facilitate good two-way Communication : Listen Balance advocacy with inquiry: explain our reasoning -Inquire into theirs Frame what we say in light of what they say Are we listening? Are we open to persuasion? (Or not?) Do they know it? The process is efficient - there is effective communication From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc Communication Relationship

ElementDescriptionGuidelinesPreparationSuccess Agreements between the parties as to actions they are to take over time Make Commitments at the end of the process: Talk first, decide later Think of how, as well as what No commitments until interests and options are fully explored What realistic commitments come next? Are they credible? Yesable? Compliance-prone? The agreement includes commitments that are planned, realistic, and operational From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc Commitments

The “Soft or Hard” Dilemma Soft on EverythingHard on EverythingConsider Have to talkDon’t have to talkEvaluate in terms of BATNAs in each case Insist on maintaining relationship Insist on acceptance of our position Deal with relationship & substance, but separately (soft on people, hard on problem) Open with a reasonable position Open with an extreme position Don’t focus on positions, clarify interests Concede generouslyConcede stubbornlySeparate brainstorming from decision-making Focus on what we will do; make offers Clarify what we won’t do; make threats Maximize legitimacy; seek criteria persuasive to them From Getting to Yes, by Fischer, et. al., and materials developed by Conflict Management Group, Inc

Books on Interest Based Negotiation Getting to Yes, Roger Fisher and William Ury (1981) Getting Together, Roger Fisher and Scott Brown (1988) Getting Past No, William Ury (1991) Difficult Conversations, Douglas Stone, Bruce Patton, and Sheila Heen (1991) Getting Ready to Negotiate, Roger Fisher and Danny Ertel (1995) Getting It Done: How to Lead When You’re Not in Charge, Fisher and Sharp, 1999