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Interest Based Negotiation

Interest Based Negotiation

The theory of Interest-Based Negotiation is that parties are much more likely to come to a mutually satisfactory outcome when their respective interests are met than they are when one "position" wins over the other. Most negotiations ultimately involve the question of how to distribute something, whether it be money, property, benefits, or obligations. The object of negotiation may be tangible (money, benefits) or intangible (better communication, better work performance, or more respect). In almost all disputes there is the question of a "pie," and how best to divide it up. The traditional form of negotiation, characterised by the assertion of opposing positions by the parties, is referred to as Position-Based Negotiation. This tends to view the pie as fixed, such that a greater share for one means a lesser share for the other; a "zero-sum game. Interest-Based Negotiation by focusing on interests to be satisfied rather than positions to be won, seeks to "expand the pie," giving each side more, thereby producing a "win-win." Though a cliché, "win-win" does describe what Interest-Based Negotiation attempts to do.
     Interest-Based Negotiation is a preferred negotiation style because, in most instances, there will be a continuing relationship between the parties; an agreement satisfactory to both parties is desirable; and the process must be satisfying to both parties.
2. The Four Principles of Interest-Based Negotiation
     There are four principles of Interest-Based Negotiation that, if followed, usually produce a settlement that is mutually beneficial to the parties.
     A. Separate the People from the Problem.
     Most disputes are emotional issues where personal animosity can run high. Misperceptions, emotions, and communication problems place themselves in the way of resolution.
          1. Perceptions.
Each party may interpret the other's motives through their own filters, perceptions, and fears. Parties should not assume their own fears are the same as those of the party. Parties need to discuss their perceptions rather than drawing assumptions.
           2. Emotions.
Emotions play a primary role in disputes. Emotions play an important role in Interest-Based Negotiation and should be embraced as another opportunity for getting to resolution.          3. Communication.
     Communication problems are often, if not, always at the root of the dispute and good communication is a necessary element of the resolution. Each party needs a correct and clear understanding of the statements of the other party. Each party must listen carefully so as to be sure of the meaning of the other party.
     B. Focus on Interests not Positions.
     Positions are pre-determined outcomes that may not be easily satisfied, and it is the extremely rare case when a position can be fulfilled to both parties' satisfaction. Interests, however, are needs that can often be met to both parties' satisfaction. It is vital that the parties  express needs or interests rather than positions.
     C. Invent Options for Mutual Gain.
     Once the interests of the parties are known, options for mutual gain can be brainstormed. These potential solutions should attempt to address issues and concerns of each party.
     To be successful in inventing options for mutual gain, parties need to be aware of the barriers that restrict option development. Such barriers may include making premature judgments, searching for a single solution and assuming that the other party must win while the other must lose. Parties can brainstorm options to help them broaden the proposed options, by searching for mutual gain, and avoid dismissing solutions as unworkable during the brainstorming phase.
     D. Insist on Objective Criteria.
The next step is for the parties to agree on the objective criteria that will be used to evaluate potential settlement options. These criteria should be developed by each party prior to identifying particular options, and should address the interests of each party. Many times a party will know how to describe the settlement they desire, but may not be able to articulate the details of such a settlement. There may be situations when a need to develop objective criteria is not necessary if the parties readily identify options that are agreeable.
     Use of objective, rather than subjective criteria, will allow the parties to fairly evaluate the settlement options.  Moreover, parties are much more likely to comply with and carry through on terms of a settlement that they each view as legitimate, and objective criteria go a long way to providing that legitimacy. One example of the use of objective criteria is using past practice as comparisons to the proposed settlement. Once the parties develop settlement options, the parties can walk each option through the criteria developed at this stage to help the parties determine whether the option meets their interests.

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Disclaimer: The information contained in this blog is for informational purposes only and is not legal advice. Nothing in this blog should be deemed to create or constitute a solicitor-client relationship between any readers and Swan Family Lawyers. A solicitor-client relationship is created only when this firm agrees to represent someone and a written engagement agreement or engagement letter is signed by both the client and solicitor. In all cases, the reader should consult his or her own solicitor for advice. The information in this blog is based on Australian law.