A crucial rule in mediation is ‘don’t argue over positions’. Most people engage in positional bargaining when they negotiate – ‘I won’t pay a penny more than £100’, ‘Sack my lazy colleague or I resign’, ‘You must be home by 9pm or you’re grounded’. The trouble with positions is that we are so busy defending them that we lose sight of what it is we actually need. Does our original position serve us well? Does it meet our needs and adequately resolve all of the issues? It’s hard to back down from a position and save face and so often people continue defending it come what may. Roger Fisher & William Ury wrote the acclaimed book ‘Getting to yes – negotiating an agreement without giving in’. Within it they reported real life situations when positional negotiations escalated conflict. In the following example, it almost caused bloodshed!
Farmers v National Oil Company of Iraq
After the fall of the Sadam Hussein regime, displaced farmers pooled their limited funds and leased farming land and invested in planting one large crop. However, the National Oil Company subsequently discovered there was oil under the land. They served the farmers with notice to leave immediately. The farmers refused. The Company threatened them with the police, but they wouldn’t budge. The army was called in and the farmers acquired guns and said they would fight to stay. At this late stage a newly trained negotiator asked if he could intervene. He asked the farmers when their crop would be ready to harvest. They said in 6 weeks and that the harvest was all they had left in the world. He asked if they would be prepared to leave after the harvest and they said yes. He asked the Company when they intended to extract oil. Not for 3 years they said but they needed to carry out tests prior to that. He asked whether the harvest would impact this. The answer was no. In fact the Company also had no objections to the farmers farming a small piece of unused land in the future, providing they vacated the remainder of the land after the harvest. Further, they had always intended to offer the farmers well paid work on the oil project and accommodation. However, the conflict escalated too quickly to even raise the matter.
The mediator averted bloodshed by enabling the two groups to consider what mattered most to them and what didn’t. He was the only person who had thought to ask them questions about what they needed and what they could barter with. The concessions made by each side helped create peace but their respective objectives were also well met. The farmers could harvest their crop, grow further small crops and obtain well paid work & accommodation with the Company. The Company could carry out their checks on the land in the knowledge that the farmers would vacate it and they would have a ready made workforce. It was a win/win solution and a peaceful solution was negotiated. Principled negotiations often leads to objectives being met and improved communication and respect.
When couples separate they often become positional because they feel hurt, unheard or fearful about their future. They hold their position so they don’t get trampled over. As Fisher and Ury illustrated, a mediator can enable people to move away from their positions and focus on their needs. Only then can their needs be appropriately met. People often believe it’s impossible to resolve their particular issues – they have already tried hard and are stuck. However, as traumatic as divorce and separation is, their path is often well trod and an impartial mediator can help them to look at the bigger picture and focus on the future. The mediator will have experienced similar issues before and will have a wealth of experience to bring to the table. A mediator will ensure concerns are identified and carefully listen to each party. It’s then that there is often enough movement for positive change.
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