Friday, March 19, 2010

A Critique of "Getting to Yes"

Getting to Yes offers a concise, step-by-step, proven strategy for coming to mutually acceptable agreements in every sort of conflict -- whether it involves parents and children, neighbors, bosses and employees, customers or corporations, tenants or diplomats.
This is from the back cover of the book, and it is largely true. The book, authored in 1981 by Roger Fisher and William Ury and updated in 1991, promotes the theory of "principled negotiation." The principles, which have become part of the negotiation vernacular, are as follows:
  • Separate the people from the problem (don't make it personal);
  • Focus on interests, not positions, which leads to win-win resolutions;
  • Work together to create options that satisfy both parties; and
  • Negotiate with people who are more powerful or refuse to play by the rules of principled negotiation.
The authors do an excellent job of covering this ground. The book is an easy, fast read, and includes lots of good advice and interesting examples.

The problem that I have with the book is that it focuses on situations where win-win solutions are not only possible, but both party gains by finding them. Look at the list of conflicts that the authors say can be resolved with principled negotiation. All of them involve important, ongoing relationships: parents and children, neighbors, bosses and employees, customers or corporations, tenants or diplomats.

In contrast, the cases that I handle -- and I think most of my colleagues would agree -- do not involve ongoing relationships between the parties and do not lend themselves to win-win solutions. My clients typically are former employees who no longer work for the former employers they are suing. In personal injury cases, the parties typically did not know each other before the accident and likely will not vacation together after the litigation ends. In medical or other professional malpractice cases, the plaintiffs will not be going back to the defendants for their next surgery or to do their taxes. Even in business litigation, where the possibility of ongoing relationships may open the opportunity to greater principled negotiation, the negotiations typically boil down to the dollars and cents, and nothing more.

I handled a business litigation matter a number of years ago that illustrates this point. The plaintiff had offered to buy certain goods from the defendant, and a dispute arose as to whether they had created a binding contract of sale. The deal fell through, and the buyer sued. We mediated with Judge John Wagner, a very talented mediator. Judge Wagner dutifully went "below the line" to explore interests (i.e., principles), rather than just positions (i.e. dollars). In caucus, the buyer claimed that he had sued on principle, and that the money didn't even matter to him. Judge Wagner then asked the seller whether he would be willing to apologize, and he said he would, if it would help resolve the case. Judge Wagner took this possibility back to the buyer, who then - quite predictably - became less interested his principles, and more interested in his position. Faced with the option of giving up money to satisfy his principles, the buyer's principles went out the window.

Getting to Yes does address these types of issues - like how to negotiate with hard bargainers- but it does not go far enough in doing so. Principled negotiation is likely to prove most useful in those important, ongoing relationships that require careful attention to principles. But in the types of negotiations that most of us handle on a daily basis as advocates, Getting to Yes falls short.

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