Arguing Over Who Gets the Bigger Slice of Pie? Try Adding a Little Ice Cream.

By: R. Kurtz (Kurt) Holloway, Esquire

Take a moment and think about how many people you interact with every day, family, friends, coworkers, business associates, acquaintances. Consider how many of those interactions involve an exchange of services or money. Dividing family household chores, buying goods or services, asking for a raise, applying for a new job, buying or leasing a car, house, apartment, office or an office building and sometimes even just scheduling the time and place of the meeting involves negotiation; sometimes simple, sometimes complex.

An introductory quote from their well-known book Getting to Yes: Negotiating Agreement Without Giving In, Roger Fisher, and William Ury explains: "Like it or not, you are a negotiator. Negotiation is a fact of life....Everyone negotiates something every day... Negotiation is the basic means of getting what you want from others. Many of our day to day negotiations happen without much thought or planning. Unfortunately, this is also true of many more important negotiations we enter. How many times have you walked away from a negotiation over an expensive purchase, an apartment lease, your raise, or a bonus and thought to yourself, "I could have done better if only...?"

Getting to Yes explains and advocates the theory of principled negotiation. At its most basic, principled negotiation is negotiation on the merits of an issue and avoiding negotiating over positions. I fully support this theory of negotiation and practice it whenever possible.

Negotiating over positions is like dividing one pie between the parties. An example is negotiating rent for an apartment where the discussion involves only the rent figure. Principled negotiation, on the other hand, is the process of looking for ways to bring more to the table than just the one pie. By expanding the deal, adding value, you create the opportunity for both parties to get more than they would have with only one pie, perhaps adding a little ice cream to the pie.

The main goal between two negotiating parties is to reach an agreement. But what is the best way to do this so that both parties walk away happy with the deal? If parties argue over their "positions" they tend to get locked into those positions making it difficult to reach an optimal agreement for both.

Some people think that by being nice to the other, it will help while others think just the opposite and take a "hard bargaining" approach. The nice or "soft" approach often leads to that party making too many concessions and ending up unhappy with the deal. The hard-bargaining approach often alienates the other party, damages the parties' relationship and hurts the chance of future deals between these parties.

By negotiating on the "merits" of the problem, each participant views the other as a fellow problem solver, not as a friend or an adversary. Each party sets a goal of achieving an outcome both are pleased with.

Principled negotiation (on the merits) has four important components:

People - Separate the people from the problem so that the process is "soft" on the people and "hard" on the problem of reaching a good deal. At the outset each party agrees to work with the other to solve the problem and reach a mutually satisfactory agreement.

Interests - First identify the interests of each party and then focus on satisfying those interests. To do this, each party needs to share with the other, what his interests are in reaching a deal. Sometimes a party states that he has an interest he wants to have satisfied which the other party cannot understand, so that party needs to ask non-confrontational questions so that he can understand. Asking and answering "why" questions are very helpful to reach a greater understanding, which in turn will aid in reaching the mutually beneficial agreement. The sum of one party's interests are what make up his position. If he starts by negotiating over his position the sum of his interests) there is no opportunity to look for alternative ways to satisfy each interest.

Options - The parties need to propose as many options for mutual gain at the outset of discussions as they can. Use brainstorming to invent multiple options and decide later which options are best.

Criteria - In order to evaluate options for an agreement, use objective criteria to measure them. Avoid naked opinions of why one option is better than another. Evaluate each option based on some measurable standard.

With these basics in mind let's go back to our example of renting an apartment. If the parties get locked into talking only about the rent, then the rent amount is the pie to be divided. The size of the pie is fixed and each party wants more of the pie, more of the money in his pocket. If the parties engage in principled negotiation they can learn exactly what each wants out of the deal and explore options to satisfy both. Determine why the landlord set the rent at $900 per month. Find out what costs the landlord must cover. So for instance, if one cost is maintenance, perhaps the tenant would agree to do that maintenance in exchange for lower rent. If another cost is electric, perhaps the tenant can take responsibility to pay that in exchange for lower rent. The tenant then has control over how much electric he uses and can save money. If other costs are for painting the apartment and cleaning the carpets, would the tenant agree to do both himself for a lower rent?

By asking these questions the parties are working together to solve the problem. They identify their interests and explore options to satisfy them. They are choosing options that are measurable by both parties. They are engaging in principled negotiation.

Successful negotiation does not occur impulsively. It takes effort and creative thinking. It may take longer than positional negotiation but offers the potential for greater rewards for the parties and a good relationship. It adds a little ice cream to go with that pie.

Kurt Holloway

About the author
Kurt Holloway

R. Kurtz “Kurt" Holloway was admitted to practice in 1977 in Pennsylvania and later in the Eastern District Federal Court of Pennsylvania. Mr. Holloway’s areas of concentration are Estate Planning, Estate Administration, Elder and Disability Planning, Real Estate Law, Zoning and Land Development, Business Law and Municipal Law.

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