As published in The Chicago Daily Law Bulletin
At Harvard Law School’s negotiation intensive this June, my classmates came from 11 countries, including India and Australia. Forty-six of us in all were taking the class in Cambridge.
Frankly, I went in with extremely low expectations. I didn’t believe negotiation could be taught. I was really wrong.
At Harvard Law School’s negotiation intensive this June, my classmates came from 11 countries, including India and Australia. Forty-six of us in all were taking the class in Cambridge.
Frankly, I went in with extremely low expectations. I didn’t believe negotiation could be taught. I was really wrong.
Our professor, Bob Bordone, has been studying, teaching and writing on negotiation for years. The Harvard Program on Negotiation (PON) is broken into very learnable modules. One of the most important concepts is simply labeled “process.”
Process is how we agree to do something together. What are the rules? What are the procedures? Just how are we going to play the poker game, have a duel, run a meeting — or conduct a mediation?
Here’s an example of a lack of process: I’m on my Catalina sailboat with a friend. Five miles out on the lake, it starts getting gusty. I’m yelling, “Get off the jib sheet!”
He can see I’m concerned. He wants to help. He sees the boat tipping. But he has absolutely no clue what the heck I’m talking about.
That’s because I usually jump on the boat, rig it and launch on my own. No discussion. No explanations. No “process.”
You can see the pitfalls in current events. Process was a hot topic in the Republican Convention. How were they going to pick a nominee? Who could vote? Could delegates change their vote? Who was selectable? Everyone was confused and upset that the convention rules were not clear.
Typically in our mediations, we meet very briefly, say a few words and launch into breakouts. The parties may not even see or talk to each other for the rest of the day. Too often, no one really has a handle on how to proceed.
Putting more energy into the process of how we’re going to work together in a mediation will really pay off. Specifically, let’s spend more time together discussing:
Since my negotiation class, I try to think more about process in all activities of daily living.
How am I going to approach that touchy issue with my wife Holly?
How are my friends and I going to make plans to meet?
And, yes — what should I tell my guests before we set sail so that we don’t have to swim back?
Process is how we agree to do something together. What are the rules? What are the procedures? Just how are we going to play the poker game, have a duel, run a meeting — or conduct a mediation?
Here’s an example of a lack of process: I’m on my Catalina sailboat with a friend. Five miles out on the lake, it starts getting gusty. I’m yelling, “Get off the jib sheet!”
He can see I’m concerned. He wants to help. He sees the boat tipping. But he has absolutely no clue what the heck I’m talking about.
That’s because I usually jump on the boat, rig it and launch on my own. No discussion. No explanations. No “process.”
You can see the pitfalls in current events. Process was a hot topic in the Republican Convention. How were they going to pick a nominee? Who could vote? Could delegates change their vote? Who was selectable? Everyone was confused and upset that the convention rules were not clear.
Typically in our mediations, we meet very briefly, say a few words and launch into breakouts. The parties may not even see or talk to each other for the rest of the day. Too often, no one really has a handle on how to proceed.
Putting more energy into the process of how we’re going to work together in a mediation will really pay off. Specifically, let’s spend more time together discussing:
- Why are we here? Do the parties really want to settle? Why? Why are they concerned about trying the case?
- What will happen if the parties don’t settle? Specifically, what happens if the case doesn’t settle that day? What are possible contingency plans — a second session, follow-up phone calls, pretrial or limited discovery?
- Who are the decision makers? Is it really the plaintiff in the room or is it his wife back at home, the father or know-it-all- neighbor? Is it the adjuster, the supervisor or the insured with the first self-retained money? Where are these people? How do we communicate with them? How can we get them involved as quickly as possible?
- What is agreed? What is contested? What is essential evidence on that point, pro and con? What is the quality of that evidence? What are the obstacles to using it? What are the logistics to getting it in? Would a judge restrict it? Would a jury buy it?
- How is each party going to decide what makes an acceptable offer? Are future medical expenses an issue? Is there a workers’ compensation lien to satisfy? Is one side comparing this to a similar settlement? Will the deal affect negotiations in future cases between these parties?
Since my negotiation class, I try to think more about process in all activities of daily living.
How am I going to approach that touchy issue with my wife Holly?
How are my friends and I going to make plans to meet?
And, yes — what should I tell my guests before we set sail so that we don’t have to swim back?