The Key to a Successful Negotiation in a Dispute: Interview with Professor Thomas Stipanowich

The author with Professor Stipanowich at Pepperdine University School of Law

Thomas J. Stipanowich is William H. Webster Chair in Dispute Resolution and Professor of Law at Pepperdine University, and Academic Director of the Straus Institute for Dispute Resolution. He is a leading scholar, an experienced arbitrator and mediator.

1.     What negotiation have you been involved in in the past year?

I was in a multiparty negotiation that involved arrangement of the Respective roles of team members in the leadership of an organization.

2.     What were the benefits and disadvantages of the negotiation?

It provided more clarity in terms of the different roles and responsibilities that people would play on a fairly detailed level. It also assured me to a great extent that my particular interest and other people’s would be recognized and addressed. It was an opportunity to talk about my interests and respective needs. So, it was really a fairly collaborative process.

How about Challenges?

In the first place, there was no collaborative process to set up the leadership arrangement. In other words, it was a situation where someone else had created the structure or at least modified it in a way that did not produce clarity. So, it was necessary for people within the organization to try to work all those issues out themselves. It’s not an ideal situation to have to deal with a set of realities that are imposed on you; when you are talking about organizational leadership that is something that at least to me benefits from a collaborative approach in the first place. What was necessary in this particular case was to address a situation that had been brought about by a third party, so there were challenges for everyone involved to try to first of all express their concerns and personal needs straightforwardly.

There was no mediator, it was just a straight forward negotiation, so people had to talk about what each of us needed and be straightforward and it took some time to do that. There was also the question of, how do you create a mechanism to make that happen.

We also did not have a good BATNA, there really was no acceptable alternative but to sit down and try to figure it out. So, we all felt impelled to engage in the negotiation. Everybody’s interests required that we work together because it was the only way we could work together, in other words, negotiation was the first stage toward creating a workable team.

3.     Was the negotiation a success?

Yes. Compared to where we would have been if we had not had the negotiation, we were much better off, our lives were much better. We still had issues but less issues, so it wasn’t perfect, but it was much better. Overall, the advantages outweighed the challenges because, the alternative to a negotiated resolution was unacceptable.

4.     How does the attorney/person prepare themselves and their clients for negotiation?

Different people have different ways of preparing. Some people are very systematic about preparing. When I have a choice, I make preparations for the discussion and in fact, I helped create a template that we could use as a collaborative tool to work out who would do what. We looked at all the different activities that the organization undertook and each of us went and identified what we thought were our roles, and that doesn’t mean just the roles we were involved in or being responsible for an activity. In some cases, we would say well, I am not responsible for this activity, but I need to be kept informed or I need to give approval of what happens, so, there were several different categories and we used that to split it up.

It worked very well, I had used a similar approach in another organization where it had turned out effective. Although no tool can be specific enough, you have to work with each other, so in some cases the negotiation kept going even after we reached our initial agreement, we kept having to talk about individual things that would come up later on.

5.     What are effective techniques or tactics?

In our negotiation, I thought that it was critical that we have a common template, work on a single draft document that showed all the activities and who would do what and we all contributed to that. That was very effective in getting everyone literally on the same page. I think everybody was relatively serious about it and it wasn’t as if someone had been dragged in, everybody was willing to be involved and try to make the negotiation work in a way that was good for them and for everybody.

It wasn’t a hardball negotiation—not a highly competitive—it’s one that I can say was collaborative in spirit. However, even in a collaborative negotiation you sometimes have to talk about hard questions, for example, two people might feel that they should have responsibility for something and make it important for both of them, how do you work that out. Do you share responsibility, or do you divide it; how do you do that and what are the consequences for each approach. So, just because a negotiation is collaborative doesn’t mean you don’t have hard questions/decisions to make, but it does help a lot and I think it creates the opportunity for people to be creative.

If it’s the right kind of negotiation it is important to have everyone talk about what they are interested in and what their priorities are. But that is particularly possible where you have people who have good working relationships.

6.     What do the “best,” most successful negotiators do?

A lot of it hinges on the kind of negotiation we are talking about. Let’s say it’s a situation where people are coming together for the first time, that’s not as easy coz I think the existence of a relationship—a positive relationship—is a tremendous foundation for a successful negotiation. Where you have relationships between individuals, or within a team that are an organization, that are essentially positive, they really create a foundation for collaborative negotiation. So, when you have that, you can agree to things like creating a template that we would use to build this model for how the organization should run for all the responsibilities laid out for all the activities. That’s pretty a challenging thing and its really helpful if you trust the people you are working with coz then you could build the model together and flash it out, so, to me the first question is, is it a relationship situation or are you coming in cold and dealing with someone you’ve never dealt with before, coz they are different in dynamics.

Preparation is always key. I always say that negotiation begins before you come to the table so you want to give it a lot of thought if it is important. The more important it is, the more time you want to spend in getting all your ducks in a row before you sit down at the table, and you should have a good idea of your own interests and the things you absolutely need and the those that are not as important.

Some people argue over what I consider as really silly things and there many issues I don’t care about. But again, someone might care about those things so I can use them as tradeoffs and I can be very straight forward and I exchange what I want to accomplish with what you want—if you let me do this I will let you do that so we can have a tradeoff—there was a little bit of that. Part of this negotiation was what we would do and not what someone else would do. We wanted to be able to do what we wanted but not the other stuffs. The tradeoffs often came off in terms of okay I’ll do that if you will do this.

7.     Do these preparation skills cut across both lawyers and non-lawyers

Ideally lawyers have a particular responsibility to do this because they are being professionally engaged to help with negotiation, so they have a professional obligation to the client. I think that for the client it’s in their best interest to ensure that someone either themselves or their attorney is doing essential preparation. Usually it’s a division of functions—attorney looking into legal issues and getting information while the client is trying to make sure that its big picture is right—knowing what their priorities are, are their interests being served. Somebody like you who has a class on negotiation can as an attorney raise those issues to the client. I mean ideally you would have an attorney who would at least flag all the important issues to the client and prepare her for negotiations.

8.     What are some of the biggest mistakes negotiators do?

Not thinking ahead and simply coming in negotiation off the cuff without preparation and without full thought, because you may realize suddenly that you did not accomplish what you really wanted because you never thought seriously about it. Coming without BATNA (Best Alternative to a Negotiated Agreement). Making assumptions about other people and what they want is a big mistake because I know that in some cases my assumptions about people are totally wrong.

9.     How would you handle imbalance of power between negotiators?

It can be very difficult. One possibility when it’s extreme that you are in an imbalanced situation is that you need to ask yourself could I simply walk away, how badly do I need this if I have very little negotiating room. In other words, what are my options; Do I have anything in my inventory of tools that I can use to maybe make the balance a little bit more even; do I have any information, or other options that could improve my BATNA a little bit; is there something that I could do to enhance my bargaining power – and sometimes that may mean changing the situation a little bit, raising the stakes.

Sometimes you can threaten to walk, but then you have to be prepared to walk, because if you don’t then you’ve destroyed your credibility. So, it’s not a good thing you have to be careful about a face-off like that. There’s a book called “Negotiating with Giants” you might want to take a look at it, it talks about what the little guy can do if the are negotiating with someone who’s got a lot more power, it has some interesting examples.

10. Thank you so much for this time. Any concluding remarks?

Overall, negotiators have to be prepared. There may be people who can think very quickly and think on their feet—sometimes you have to, sometimes you have no choice—but if you have a choice, and its anything of importance, then you want to devout time to it or to just at least reflect on it a few minutes, or even longer. In this particular case, I started by writing down notes about what I wanted and what my priorities were, and we actually exchanged a list of things that we wanted to do before we wrote the template, so that we kind of saw where everybody was coming from. So, when we created the template we already had information about each other’s interests, and that was a big help.

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