Getting To No. The New Yes.
By Eric Gillett
In past articles, we’ve talked about the well-worn negotiation goal of “getting to ‘Yes.’” As many of you know, this comes from the book, Getting to Yes: Negotiating Agreement Without Giving In, written by Roger Fisher, William Ury, and Bruce Patton and published in 1981. The book outlines a method of negotiation, focused on finding mutually beneficial agreements. It presents four fundamental principles:
- Separate the people from the problem. In other words, focus on the issues, not the personalities that often impair our ability to reason logically.
- Focus on interests, not positions. Here, we are advised not to dig our feet in on any particular position but to look for what the other side needs as well as expressing our needs.
- Generate options for mutual gain. Thinking creatively about different solutions allows for more opportunities to find a mutually acceptable solution; and
- Use objective criteria. What standards, legal or otherwise, are being applied? Avoid bulling techniques that simple assert leverage through power, such as a pending motion for summary judgment might convey.
While these principles are well regarded and have launched many successful negotiated settlements, there are many limitations with practical application. For instance, there may be an overemphasis on rationality. The approach assumes both parties will be rational. However, taking emotional responses out of negotiations can be very difficult. An easy example is in family law disputes between divorcing spouses. Another example is neighbor disputes where removing a fence may be the only remedy allowed under the law, but one neighbor is so offended by the other neighbor’s behavior that only a promise never to act that way again will get the matter resolved.
This book is focused on a “win-win” approach. That is a difficult goal in most litigation because more often than not, we are dealing with parties who view the outcome as a zero-sum game. There are winners and losers, but not all winners. The power dynamic described above often stands in the way of the cooperation necessary to focus on interests rather than positions.
Finally, the authors’ approach is heavily weighted to a Western view of the world where individual needs trump better societal outcomes. The approach does not always align with cultural differences. The question then becomes, what next?
A book I have been spending more time on recently is called, Never Split The Difference, Negotiating As If Your Life Depended On It, by Chris Voss. This book is an eye opener. Mr. Voss is a former F.B.I. hostage negotiator. Talking terrorists out of holding hostages, bank robbers out of banks was part of his normal work. And this book demonstrates many of the techniques he used to make the good ending happen.
One of those techniques runs counter to the dogma espoused by Getting To Yes. In fact, it is just the opposite. It is, “Getting to no.” This alternative negotiation approach contrasts with Getting to Yes. Instead of a collaborative win-win approach, Getting to no emphasizes the need for a party to say “no.” Don’t mistake this for failed negotiations, the goal remains to resolve the dispute. What has changed, however, is how to approach the solution. With a “yes” approach, parties are much more likely to feel manipulated and resistant to the solution. Allowing a party to say “no” gives them the feeling of power, allows them to feel in control. By denying you something, they take control. The goal is to allow them the control so that they can get to the solution on their own and feel like they have not just given up and given in. Allow the other side to stand in their power and wait for their willingness to see the solution you are proposing. Voss offers an excellent example.
A political fundraiser called big dollar donors to raise money for the next general election. Opening the call with a few questions, the fundraiser asked the doner if he supported their party’s candidates. Of course, said the donor. Then he asked, do you want them to win in November? Absolutely said the donor. And now the close, would you be willing to write a check today? Answer, no.
Yes, Yes, and NO! That wasn’t how it was supposed to play out. So the fundraiser tried a different approach. Starting with another donor, he asked whether the donor was satisfied with the status quo in Washington. Answer, no, nothing is getting done. That was a no! Then he asked whether the donor thought the current administration was likely to change that over the next four years? Answer, “No, their idiots!” And finally, well would you be willing to contribute to the strong effort we are making to bring your ideas to the table by electing the candidates from your party? And that got a yes and a check.
According to Voss, this was based on the work of an actual student of his and not just his own musings about how this is supposed to work. The idea, he said, was that the donor was able to establish control over the conversation by denying something or someone. And when posed with a solution to the problem he agreed existed, he was willing to agree, to say yes.
While this technique is not always available to us in mediation, it often is. Whether as the mediator working in a room with one party or as the advocate putting the questions to the mediator to carry with him or her to the opposing party’s room, the idea is the same. Find a way to give the other side power, to assert control. Allow them to assert that power so that they can feel better about themselves and their position.
You are not giving in. You are not conceding defeat. Instead, you are providing your opponent with the skill set to see a solution and feel better about getting there. If you remain skeptical, try it out with your spouse or your children, or your co-worker. Allow for the possibility that “no” is just a different, perhaps more circuitous way to get to “yes.” And see if you don’t agree that it might even be a better way.
Eric Gillett is a founding member and managing partner at Preg, O’Donnell & Gillett. Follow him on LinkedIn at https://www.linkedin.com/in/eric-gillett. He is licensed in Washington, Oregon, and Alaska. He has tried dozens of cases to verdict and mediated hundreds more. A navigator of resolutions, he is a commercial mediator and can be contacted through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. You can also reach him through his website at www.gillettmediation.com and his email at egillett@pregodonnell.com or eric@gillettmediation.com. Mediations are available both in person and via Zoom.
