Fisher Mediation
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Tools For Negotiators: “Beyond Reason – Using Emotions as You Negotiate”. (Book Review)

by Paul Fisher, Edited by Judith Stalk

I offer this book review with a little trepidation. The objective of offering the review is to offer the attorneys with whom I mediate an opportunity to improve their negotiation technique. This is in no way a criticism of the negotiating style of any of the attorneys with whom I mediate. I have learned much from “Beyond Reason” and want to share the wealth of knowledge and wisdom with my colleagues.

Why do I think there is room for improvement in negotiation technique? There is always room for improvement in how we do things. Why do attorneys take continuing legal education classes, other than being required to do so by the state bar? Why do mediators take advanced mediator training? The technology of what we do is always advancing. Availing ourselves of the most current insights allows us to provide the best possible service to our clients. This will lead to higher client satisfaction.

What’s in this book for negotiators that makes it worthwhile reading?

How often have you attempted to negotiate with someone who is combative, endlessly argumentative or excessively aggressive? How productive was the negotiation and how long did it take? How often have you contributed to the negotiation by being combative, argumentative, aggressive or by pushing the buttons of the other negotiator?

Emotions happen in negotiation. Rather than getting caught up in the emotions, which contributes to unproductive negotiation, “Beyond Reason” urges us to focus on what is stimulating these emotions in you and in the other negotiator, in order to have productive negotiations. You as negotiator provide a source of stimulation, both positive and negative, to the other negotiator, who will likely react positively or negatively to what you say and do.

The exploration of emotion may be a major stretch for some attorneys. I have noticed in my mediation practice that many attorneys choose to not deal with emotions, whether they be the emotions of their client, the other party, opposing counsel, or themselves. Since the dawn of modern mediation, mediation theory has recommended that emotions be addressed. So what “Beyond Reason” proposes may not necessarily seem new. How the emotion can be put to productive use, I believe, is new. This is a very powerful tool for negotiators, especially for those who don’t normally address emotion. This could open up a whole new world of positive negotiation experience.

“Beyond Reason” is co-authored by Roger Fisher, Professor of Law Emeritus and Director of the Harvard Negotiation Project. Fisher is also the co-author of one of the seminal books on interest-based negotiation, “Getting To Yes – Negotiating Agreement Without Giving In” and numerous other books on negotiation. He has consulted on business and international conflicts, and with Presidents on international conflicts negotiation design. Co-author Daniel Shapiro is Associate Director of the Harvard Negotiation Project, Professor of Law at Harvard Law and Medical Schools, and Sloan School of Management, MIT. Shapiro has developed a conflict management program that reaches over one million people in more than 25 countries, and has conducted negotiation training for political leaders in some of the world’s hot spots.

Fisher and Shapiro describe the sources of emotions as “core concerns”, and have bunched these into five classes. Addressing and meeting these core concerns leads to positive emotions, a frame of mind more prone to cooperating, thinking creatively and therefore problem solving. The authors suggest the opposite is also true: not meeting core concerns can lead to a lack of cooperation, not thinking creatively, and not being in a problem solving frame of mind. In addition, these concepts apply both to you and the other negotiator. Transparency and a great deal of humor will go a very long way.

During negotiations there are the issues of your core concerns and those of the other negotiator. It is easier to understand and deal with the core concerns than to try to understand the multitude of layers of emotional issues everyone faces all the time. The authors formulate a process of using the core concerns “as a lens and as a lever”, meaning, being aware of what is happening, and putting into action what you have learned. “Awareness of core concerns can defuse much of the volatility of escalating emotions. If the other party says something that pushes your button, you want to prevent yourself from losing control of your own behavior. Rather than reacting to the perceived attack on you, take a deep breath and ask yourself which of your core concerns is being rattled?” This is much like Leonard Riskin’s mindfulness theory. That is, being acutely aware of what and why you are reacting to, understanding its source, and being able to diffuse the reaction and quickly refocusing on the negotiation at the moment. Riskin has been a Professor of Law and Director of the Center for the Study of Dispute Resolution at the University of Missouri-Columbia School of Law, and has published articles and taught mindfulness to attorneys and mediators at numerous law firms and law schools around the U.S.

One of the core concerns that Fisher and Shapiro define is “appreciation” – find merit in what others think, feel, or do, and express appreciation to that person. The objective in honestly expressing appreciation to someone is for them to feel valued and acknowledged. When we are appreciated, we become more open to listening and more motivated to cooperate. “Appreciate others can be taken as a shorthand, all-purpose guide for enlisting helpful emotions in those with whom you negotiate. They tend to feel more at ease and cooperative, and you are more likely to foster their appreciation of you.”

Critically important to showing appreciation is understanding the other person’s point of view. The authors emphasize that you need not agree with the other person’s point of view. Appreciation does not mean acceptance. When views conflict, find merit in their reasoning. They might be motivated by strong feelings, a passionate belief, or a persuasive argument. The authors further urge that finding merit in another’s reasoning requires that you actually do see merit in it. “Sincerity is crucial. It is your honest valuing of another’s perspective that makes them feel appreciated. Listening for merit in another’s point of view can transform the way you listen. Once you find merit, you will be able to say: I understand [your point of view], and I appreciate [your reasoning or beliefs].” When you understand their perspective and find merit, let them know, and above all, be honest.

To appreciate also does not mean to give in. Whether or not you agree with someone, you can find merit in their reasoning and let them know. It is possible for you to understand a person’s ideas or opinions that you think are foolish or patently wrong.

Fisher and Siegel analyze other core concerns. They refer to “affiliation”, more commonly referred to as establishing a connection, or bonding, with the other negotiator. Doing so makes working together easier and more productive. Though this theory is nothing new, the approaches recommended by the authors are either new, insightful or imaginative. Another core concern is “autonomy”, more commonly referred to as self-determination, or independence, or having our interests or rights respected. When our autonomy is respected, we tend to feel engaged. When the other negotiator impinges upon our or our client’s autonomy, we tend to experience negative emotions. Fisher and Siegel also recommend acknowledging a person’s status wherever deserved, without reduction of your status, and treating the other negotiator with respect (nothing new here, however) which often makes them respect you. Fisher and Siegel also provide tools for dealing with strong negative emotion, and how to prepare for those moments so that you can act with a clear purpose in mind.

This book is not written specifically for mediators, nor for attorneys, but is written for anyone negotiating. Though written by two preeminent Harvard scholars/ world-class negotiators, the writing style is plain English, and is very fast reading. The concepts are easy to comprehend. None the less, “Beyond Reason” is authoritative, with an extensive compendium of works consulted by the authors, and vast array of acknowledgments of persons who were personal resources of the authors. The resources are both academic and from the personal negotiation experiences of Fisher and Siegel and their colleagues.

This past May (2006), I had the great fortune of participating in a conference of the International Academy of Mediators at Harvard where Daniel Shapiro spoke on emotion in mediation and “Beyond Reason”. How can you resist buying a book when one or even better, both authors are there to inscribe it? The bonus was reading the book and discovering its valuable treasures.