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Process Before Substance

PGP Mediation
by Phyllis G. Pollack

As part of a book club group, I recently read Negotiating the Impossible: How to Break Deadlocks and Resolve Ugly Conflicts (Without Money or Muscle) by Deepak Malhotra (Berrett-Koehler Publishers, Inc. 2016). The thesis of the book is simple: to resolve any conflict, one must employ Framing, Process and Empathy.

Framing is how to present a proposal. Is it presented in a positive fashion or in a negative fashion? Does one say that the glass is half full or half empty? Both present the same concept, but the former is positive while the latter is negative. In modern lingo, it is a question of how one “spins” it.

The third element to a successful negotiation is Empathy: which is understanding the issue from the other person’s perspective. One does not have to agree with that other perspective, but merely understand it exists.  Doing so opens one’s options to resolve the dispute. One example given is the Cuban Missile Crisis in October 1962. At that time, the United States (using spy planes) discovered that Russia had moved quite a few missiles capable of carrying nuclear warheads into place in Cuba aiming them towards the United States – only ninety miles away.  Then President Kennedy, rather than taking a reflexive knee jerk reaction such as invading Cuba, stopped and looked at the situation from the perspective of Russia. He realized that Russia was nervous about the nuclear capable weapons that the United States has previously set up in Turkey and Italy which could hit Russia. To resolve the crisis, the United States, among other things, agreed to dismantle the missiles in Turkey and Italy.  A war was averted. (Id. at 122-126.)

The second element – Process- is often overlooked but based on my experience is the most important. “Process” means preparation, not only substantively but procedurally as well. “Process is about how they will get from where they are today to where they want to be.”  (Id at 64.)

“Process” means thinking about  when and where to hold the negotiations, how long will they last, will it be a single meeting or several meetings,  who will be involved and in what capacity, what items will be on the agenda to be discussed and in what order, will the negotiations be public or private, will there be any reports made to those outside of the negotiations or will the negotiations be strictly confidential, will the negotiators be in the same or different rooms or both jointly and separately, and if in the same room, who will sit where and what will be the shape of the table, when an impasse is reached, how will it be resolved, if a deal is reached, who will draft the Memorandum of Understanding and/or Settlement Agreement,  does the agreement if reached need to be ratified and by whom and if no deal is reached, should arrangements be made about meeting again? (Id. at 63-65.)

The most important aspect of “Process” is conducting the necessary groundwork or preparation to negotiate.  Do your homework and research so that you “know the facts, anticipate the arguments, and understand your weaknesses.” (Id. at 67.)

The example given is of James Madison preparing for the Constitutional Convention. He arrived in Philadelphia 11 days before the Convention was to start and with George Washington and others drafted an alternative to the Articles of Confederation- known as the “Virginia Plan” – as a starting point for discussion. Knowing that the default would be to simply modify or amend the Articles of Confederation, Madison devised a way to start the discussion in a different place- with the Virginia Plan. He thereby shaped the process and provided a new starting point for the discussion. (Id. at 60-63.)

In mediations involving cases in court, one critical question involves whether enough discovery has been conducted to make the negotiations meaningful? Is the mediation being conducted too early and before any discovery has been done? Or, is it being conducted too late on the eve of trial such that parties just assume try the case? Does each party know the facts of their respective cases thoroughly and more importantly, does each party know their weaknesses? As important is having the right party- the one with the actual authority to settle- at the mediation. I recently conducted a mediation in which the defendant sent an “agent” who really had no authority to resolve the matter. Consequently, the matter did not settle.  My instincts told me it would have settled had the right persons with the actual authority been present.

In sum, process is the most powerful element to a successful negotiation. As is said by my colleagues, the right settlement at the wrong time, is the wrong settlement.

… Just something to think about.


Phyllis Pollack

Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as… MORE >

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