GSB Vol. 13, NO. 1, Pg. 36. Negotiating With a Road Map: The Importance of Understanding How the Other Side Thinks.

Author:Douglas J. Witten

Georgia Bar Journal

Volume 13.

GSB Vol. 13, NO. 1, Pg. 36.

Negotiating With a Road Map: The Importance of Understanding How the Other Side Thinks

GSB JournalVol. 13, NO. 1August 2007Negotiating With a Road Map: The Importance of Understanding How the Other Side ThinksDouglas J. WittenA surprising number of parties maintain, at some point in the mediation process, that they have their minds made up and don't care what the other side thinks. Quite the contrary, making an effort to understand how the other side approaches an issue is an important step in productive negotiations. This is true whether negotiating with a 4year-old or mediating to settle a lawsuit for thousands (or millions) of dollars.

The Best Negotiators are Often the Smallest Ones

My wife Holly and I recently undertook the daunting task of hosting our niece and nephew-7 and 4 years old, respectively-for an overnight sleepover. We love these kids as if they were our own, and they are always fun to have around. Frankly, though, the 4year-old boy, Max, can be a handful. He's already smarter than we are, and he negotiates better than any of the lawyers or other parties I usually face in the mediation setting.(fn1)

Our sleepover with Max and his older sister, Hannah, took place last Halloween weekend. On Sunday morning, after the kids woke us up at the ungodly hour of 6:30 a.m., Holly and I decided to take the gang for brunch. Upon prying ourselves out of bed, we realized that the earlier we got to the restaurant, the earlier the kids would be occupied, as we found ourselves encircled by two children wildly running around our house, barefoot and in varying stages of pajama-undress. Much delay would mean facing a large brunch crowd, too.

Holly and I started to get dressed and urged the kids to follow suit.

"Okay, guys, are you ready for brunch? Let's get going, okay? The sooner you get dressed, the sooner you can eat pancakes," I pleaded from outside their bedroom.

"I don't like pancakes," Hannah pointed out. "I want toast."

"You can have toast."

"Unless the pancakes have syrup on them," Hannah added.

"You can have pancakes with syrup or toast, whichever you want. You just have to get dressed."

"Okay, I'll get dressed," Hannah said. "But Max has to get dressed, too, and right now he's jumping on the bed in his underwear."

At that point, I knew the challenge was on. I, the mediator, prepared to face Max.

Max was, indeed, jumping on the bed in his underwear, laughing and smiling mischievously as he bounced up and down. I could tell by the look in his eye that he was going to be a tough customer.

"Come on, now. Don't you want to go eat? You have to get dressed if you want something to eat. We're all hungry, and we need you to help us out."

I figured that Max would understand that he was part of our "team," we were counting on his cooperation, and therefore he would be motivated to work with us. I knew he was hungry, and I assumed the hunger would prod him to listen to reason and take the necessary steps (i.e., get dressed) to allow our group to eat.

I was wrong.

Max resisted my begging and pleading, which continued shamelessly for a few minutes, and he showed no signs of giving in. Therefore, I left Max in Hannah's hands, went back to huddle with Holly in our bedroom, and proceeded to get dressed.

"Max's not putting his clothes on," Hannah yelped from the kids' room. "He's still in his underwear, and now he's bothering me. Please get him away! And I'm hungry."

"Max, we're all getting ready, and we're going to have to leave you if you don't get your clothes on in a hurry. You can stay here, fix yourself some coffee and make yourself some French toast. We'll show you where the eggs, milk and bread are. Fine with me, pal."

After a roll of the eyes and a hint of a smile, Holly said quietly in my ear, "I love you, but I don't think this reverse psychology bit is working. Are you sure you're a mediator?"

"I have an idea," she whispered to me before raising her voice for the kids to hear.

"Max, I'm coming in!" Holly continued from the kids' room. "Do you want to wear your clown wig today?"

Max's new Halloween costume included a rainbow-colored clown wig and a red plastic, stick-on nose. He was very excited about wearing his wig, and Holly knew that the mere mention of it would get Max's attention.

"Yeah!" he screamed. "I want to wear my wig! And you don't want me to wear...

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