When will we start telling the truth about negotiation? For many years, much negotiation training has been focused on seeking win-win results. This concept was popularized by Fisher and Ury’s extremely influential Getting to Yes. 
The search for a win-win outcome differentiates “Getting to Yes” principled negotiation from distributive negotiation which is usually a zero-sum game i.e. if I win, you will lose. In a principled negotiation, the parties will seek to understand each other’s interests and expand the pie i.e. invent new options for mutual gain.
I recently attended a talk by Professor Michelle LeBarron from the University of British Columbia. She suggested that we need to stop telling parties that they can achieve win-win outcomes. The reason?  Even if the parties manage to negotiate a resolution, it is usually more a case of “mostly ok – mostly ok”.
In most negotiations, no party will get 100% of what they want – if they do get 100% the process is probably not a negotiation. Most parties in mediation (which is a facilitated negotiation) will end up achieving some of their own goals and allowing the other party to meet some of their goals.  This is why the ‘mostly ok’ description makes sense to me from what I have seen in practice.
But is it true for the parties?  We know from developments in neuroscience that we are programmed to experience losses more intensely than gains. It is not uncommon for both parties in mediation to feel taht they have made all the concessions, whilst ignoring any gains.
I think that for many parties the most significant gains are those that will only reveal themselves as they live the agreement.  At the point of finalizing the deal, parties are often unable to appreciate the benefits that will accrue over time:

  • The benefit of resolution to their emotional and psychological wellbeing
  • The ability to refocus on their family, health, business, etc.
  • The time / emotional / financial benefit of not having to fight a court battle
  • The potential, if relevant, to rebuild the relationship

One party said to me some months after he had signed his mediation agreement, that he had not realized “the amount of space in [his] mind that was being used up” by his dispute. That space had become free for his family, his health and his business.

Sala Sihombing originally qualified as a solicitor in the United Kingdom and Hong Kong. After 14 years in banking, she has shifted gears, recently completing a Masters in Law from the Straus Institute at the Pepperdine University School of Law.