Speaker 1: Well let me start by sort of sharing with you some observations about negotiation. Mediation after all is the facilitation of negotiation where a third party really is going to help people negotiate more effectively where perhaps they haven't been able to reach agreement themselves. And I think what's indispensable for mediators is that they first have some kind of firm foundation and conceptual understanding of the challenges of negotiation. In my view negotiation requires the management of three tensions. And the reason negotiations often fail is because these tensions aren't managed very well. And it turns out mediators can help people manage these tensions better. The first tension really goes to the core of negotiation and that is what I call the tension between creating value and expanding the pie and the inevitable necessity of having to divide the pie into slices. Now at Harvard Law School some of my students who come to my negotiation course think that it's all about distribution. That we live in a zero sum world. What you win I lose. What I win you lose. And we beat up on them pretty unmercifully. And indeed perhaps you've heard the story about the two brothers and the orange where the two brothers are fighting over an orange and after a lot of haggling where they get very angry with each other they finally split it in half. One brother walks away in disgust, takes his half of the orange, scoops out the fruit, eats it and throws the peel away. The other brother goes back to his apartment, scoops out the fruit and throws it down the garbage disposal and uses the peel to flavor a dessert. Now the big lesson there and it's an important lesson in negotiation is you should focus on people's underlying interests not just their positions. The positions of each brother was I want the whole orange. If they focused on their interests obviously they could have reached a deal far superior to simply cutting the orange in half. Well that's part of the story but it's not the whole story and it doesn't really reveal the tension. The message of that story is talk about your interests and be more forthcoming about what your real needs are and that is very good advice. But the second half of the story goes to the following. Imagine you and I are on a desert island and on your half of the island you have an orange grove and on my half of the island I have apple trees and apple orchard. And I say to you I think we could both be better off if we made some trades and you said I'm all ears. And I say to you wanting to really be open and forthright well you know truth be told apples give me indigestion but I love oranges. Now what's going to happen? What's going to happen is you're going to probably end up not only with almost all the oranges, you may trade me one orange for all my apples, but I'm going to end up with perhaps one orange and no apples because I sort of naively disclosed too much. The first tension which is between the creation of value and the distribution of value flows from the fact that to create value it's often terribly important to really know what people's underlying interests are, what their resources are, what they might have to trade, what their concerns are. However the dilemma is that the naive disclosure of too much information by one side if it's not reciprocated can lead to exploitation with respect to the distributive aspects of a bargain. Now a consequence of that tension is people often engage in hard bargaining where they don't disclose very much and negotiations fail under circumstances where there are all kinds of deals that can make the parties better off. How can a mediator help? Well sometimes a trusted mediator can improve the communication between the parties and can really learn from the parties what their underlying interests are and help them articulate them in a way which avoids the risks of exploitation but creates more shared information. So that's the first tension and that's one way I think mediators can help. The second tension really relates to something having to do with communication. That is what I call the tension between empathy and assertiveness. By empathy I do not mean sympathy. Empathy for negotiation purposes I mean is the capacity to understand the world through the eyes of the other party. To be able to see the world from their perspective. It does not mean you're going to agree with them but it means you're going to work really hard to understand their perspective. Assertiveness has to do with the ability to put forward in a clear and persuasive way what your own needs, interests, concerns are. To be a good advocate for yourself. Well, why is there a tension between empathy and assertiveness? The reason there's often a tension is that many of us are far better at one than the other. For example, people who are very competitive. Many lawyers are terrific at assertion but they're lousy listeners. They really have a hard time demonstrating that they understand the perspective of the other side. Other people, once they really absorb and understand the other side's perspective can't hold on to their own interests. You've probably been involved in some divorces where in fact one spouse really deeply understands and appreciates the other spouse's perspective but as a consequence once they really do understand the other spouse's perspective can't hold on to their own interests. They fall into accommodation mode. So falling into a purely competitive mode or purely accommodation mode isn't good. Some people aren't very good at either demonstrating understanding or empathy or assertion. They're just avoiders. They feel conflict is unproductive. Well, in terms of facilitating communication between parties, what a good mediator can often do is help people both articulate their own perspective in a strong way so that it can be understood and then help both the other party understand and demonstrate an understanding of the first party's perspective without agreeing. In other words, what's extremely useful in conflict resolution, you've probably seen this happen, is even if parties don't agree about what happened, if they can demonstrate to each other that they understand what the other side's perspective is, that can often provide enough of a foundation that at least if you can get them to look at the future and try to figure out what their needs are in the long run, they can better reach an agreement. So that's the second tension and that's once again a way that I think sometimes a mediator can help. Now the third tension is one that we're all familiar with. That is what I call the tension between principles and agents. Most negotiations of any complexity involve someone negotiating on behalf of a party. For example, a manager negotiates on behalf of a company. A diplomat negotiates on behalf of her nation. A labor leader negotiates on behalf of his union. A lawyer negotiates on behalf of her client. Why is there a tension between the principle and the agent? The reason is, I'm going to tell you a secret that no one's ever thought of. Agents have interests of their own. Lawyers, for example, have every right to be interested in earning a living and what their own reputation is, their standing in their firm, etc. It is difficult to perfectly align the interests of the agent with those of the principle. And indeed, having good communication between the lawyer and the client, the manager and the subordinate, the diplomat and the Secretary of State is indispensable because in all sorts of ways, what you often have to do is to manage that relationship so you can take advantage of the agent's special needs. But where the agent really understands fully what the underlying interests of the principle are, and the principle understands what the needs and interests of the agent are, often this relationship is managed badly and it can get in the way of dispute resolution. For example, I've seen any number of conflicts where, as a mediator, meeting with the business representatives without their lawyers led to a pretty quick resolution because part of the problem was the relationship between the two lawyers was bad. What you also see as a mediator are situations where the two lawyers could easily reach agreement, but one of the lawyers has a relationship with his own client, which is a difficult one, where they have a hard time speaking truth to the client about what their real risks are. Once again, a mediator can often help manage these relationships. So I think with all three of these basic underlying negotiation tensions, there's an opportunity for a neutral who's skilled to help. Thank you.