Briefs

By Tom Noble
6116 N. Central Expressway, Suite 922, LB 72
Dallas, Texas 75206
214-692-1888; fax: 692-8577
tnoble28@hotmail.com; www.tnoble.com

Wednesday, March 18, 2009

Improving Family Law Mediation - Part Five
(Or Cooperative and Competitive Lawyers - Part Two)

In my last newsletter, I divided the universe of negotiators into cooperative and competitive and argued that professional mediators and advocates should know the difference. I talked about these two negotiating styles and how both types can be effective or ineffective. This is not hard to follow, so hang with me for two more minutes. I promise to get to the point (eventually).

Now, as a life-long smartass, one of my favorite questions: So what?

Before I answer that question, and to add a little more suspense, I need to layer one more level onto this matrix: the unconscious negotiator. No, that does not mean that I serve tequila at my mediations, and it has nothing to do with someone popping an aneurism while signing closing documents. An unconscious negotiator knows not what he or she is doing. Sleepwalking through negotiations, the unconscious negotiator works on instincts, goes with his gut, is usually competitive, primal, and always instinctual. The unconscious negotiator believes that he was born with the ability to negotiate. Who needs to read a book about it? Some would call this a "fixed mindset".

Now we find the universe inhabited by unconscious-competitive negotiators, conscious-competitive negotiators, unconscious-cooperative negotiators, and conscious-cooperative negotiators. Again, so what?

Here's the point: a good mediator can transform an unconscious negotiator from competitive to cooperative. If a negotiator is intentionally competitive (or "conscious-competitive"), the likelihood that a mediator will sway her from that style is about as likely as peace in Gaza. If she is competitive because she knows no other way to do it, however, the mediator may manipulate the competitive negotiator into being COOPERATIVE. And, that, my friends, is a beautiful thing to behold!

Now, let's look at this little problem from a different angle: the perspective of the negotiator, the lawyer, the attorney, the advocate; and, just to be kind, because I know you are a busy person, I'm going to cut through this for you. It's simple: be cooperative until you determine that other parties are not reciprocating; then switch to competitive until you get some respect; then switch back to cooperative as soon as the opportunity arises without sacrificing substantial leverage. I'm cooking!

But, hey, don't take my word for it. If you want to improve your negotiating skills, there are a couple of real easy and very beneficial exercises: Read Getting to Yes, and read Herb Cohen, especially Negotiate This! After all, how can you resist a guy who writes prose such as:

However, the woman executive on the other end of the line went against the norm and our expectations. What she did was creative, differentiating herself and her conference from all others. She was applying the theory that "A nose that can hear is worth two that can smell." While I'm not exactly sure what that means, nonetheless I know it works.

If wisdom has anything to do with humility, as Socrates suggested, Herb should be in the Wise Negotiator Hall of Fame. Here he is again: "my strategy in negotiations is generally to make the other side feel superior to me. In so many instances you have to work so very hard but it pays off."

What I am now doing is called a digression. Some might call it a rabbit trail or rambling, but it's really not. I remember: cooperative and competitive. I got on a Herb Cohen riff because, to me, Herb is like if you sent George Carlin to a school for nerdy negotiators. Herb is intentionally dumb like a fox. He is a brilliant negotiator who understands how to combine humor, humility, style, and substance to make what Fischer and Ury call "wise agreements". What does my-man Herb say about cooperative versus competitive negotiating styles, meeting the issue head-on? Stay tuned to find out.

****************