Negotiation: Uncovering Underlying Interests

Here’s a story about how a diamond ring could be “divided” between two daughters that I came across in Harvard’s Program on Negotiation newsletter. It was told by Jeswald W. Salacuse, a professor at the Fletcher School of Law and Diplomacy at Tufts University. Professor Salacuse is the author of The Global Negotiator, from which this story is taken.

“A wealthy man died and left all his property to be divided equally between his two daughters, Janet and Claire. All went smoothly until they came to the old man’s ring, a diamond signet that he had worn most of his life. Both daughters wanted it, and each justified her position on a principle. Janet pointed to the fact that she had taken care of their father in his final illness. Claire claimed he had promised her the ring years before. Their positions seemed irreconcilable, and relations between the two sisters grew tense. Finally, in frustration, Janet asked Claire a key question: “Why do you want the ring?” Claire replied, “Because it has a beautiful diamond. I thought I’d make a pendant out of it.” Janet responded, “I want it because it reminds me of our father.’”
“Once the two sisters realized that their underlying interests were not necessarily incompatible, they explored solutions to their common problem. They finally agreed that Claire would have the diamond replaced with Janet’s birthstone, return the ring to Janet, and keep the diamond. This was an example of a “win-win” negotiation—one that allowed both sisters to satisfy their underlying interests.”

This is reminiscent of the story of the two sisters who both want one orange. Although I’ve found that the orange story is well-known in mediator circles, it is unknown in litigator circles. It leads me to believe that we need to do more to educate lawyers to ask good questions so as to understand the other side’s underlying interests. The prevalent litigators’ view that cases are “only about money” narrows their focus and limits their negotiated outcomes.

You can read Professor Salacuse’s take-aways from his story here.

                       

Nancy Hudgins

Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class… MORE >