Getting to “Yes” – with a little help from my Friends

“Getting to YES: Negotiating Agreement Without Giving In” is a best-selling 1981 non-fiction book written by Roger Fisher and William L. Ury.

If you like or are interested in successful negotiation it is a “must read” .It’s all about the human psychology associated with the bargaining process. I read it with interest a long time ago remember thinking to myself “I wish everybody I had to bargain with had read this book”.

Whether we like it or not, we enter into contracts every day of our lives. We buy newspapers in the morning, sandwiches at lunch time, beer in the pub and so on. Sometimes we pay the asking price. Sometimes we negotiate discounts. The item may be overpriced or damaged. It may be last year’s model or about to become out of date.  Whatever the reason, humans like to negotiate.

Although you may never have thought about it, these transactions are all contracts in their own right. There is a body of law which supports and regulates these contracts and the truth is that 99% of us are oblivious to this body of law.

Negotiating contracts in business is also something of an everyday occurrence. Thousand of agreements are negotiated and concluded every day of the week without us even giving it a second thought.  But there are occasions when a contract must be secured – the survival of your business may depend on it – and the negotiation takes on a life of its own.

At the risk of stating the obvious, people and entities negotiate contracts that will result in both sides obtaining something of value from the agreement. Often that something-of-value is easy to identify but, in complex business transactions, gauging value can be difficult if not impossible. Often concessions are offered by one party in the belief that the other party will attach value to this gesture when in reality what the other party needs is something completely different.

Now for another “home truth”. Human beings who become involved in complex and difficult negotiations can become extremely competitive animals and will think nothing of exploiting an opponent’s weaknesses if these are disclosed during the bargaining process.

So, how do we “get to yes” with a person we are negotiating with, obtain what we need from the ensuing contract and not give too much away in the process?
I think I have the answer – why not employ a neutral facilitator to assist you and your opposing party negotiate and conclude an agreement?

Negotiating a contract is not that different from resolving a dispute. You still need to separate the people from the issues, explore common interests, invent options for mutual gain as well as establishing your Best Alternative To a Negotiated Agreement (“BATNA”) and Worst Alternative To a Negotiated Agreement (“WATNA”).

If any of this sounds familiar it is probably because you have read one of my previous articles on preparing for a successful mediation.

So, who should you turn to when you need to “get to yes”? You’ve guessed it – you need to speak to one of my mediator friends.

Peter Vinden

Mediator, North West Mediation Solutions

Getting to “Yes” – with a little help from my Friends

“Getting to YES: Negotiating Agreement Without Giving In” is a best-selling 1981 non-fiction book written by Roger Fisher and William L. Ury.

If you like or are interested in successful negotiation it is a “must read” .It’s all about the human psychology associated with the bargaining process. I read it with interest a long time ago remember thinking to myself “I wish everybody I had to bargain with had read this book”.

Whether we like it or not, we enter into contracts every day of our lives. We buy newspapers in the morning, sandwiches at lunch time, beer in the pub and so on. Sometimes we pay the asking price. Sometimes we negotiate discounts. The item may be overpriced or damaged. It may be last year’s model or about to become out of date.  Whatever the reason, humans like to negotiate.

Although you may never have thought about it, these transactions are all contracts in their own right. There is a body of law which supports and regulates these contracts and the truth is that 99% of us are oblivious to this body of law.

Negotiating contracts in business is also something of an everyday occurrence. Thousand of agreements are negotiated and concluded every day of the week without us even giving it a second thought.  But there are occasions when a contract must be secured – the survival of your business may depend on it – and the negotiation takes on a life of its own.

At the risk of stating the obvious, people and entities negotiate contracts that will result in both sides obtaining something of value from the agreement. Often that something-of-value is easy to identify but, in complex business transactions, gauging value can be difficult if not impossible. Often concessions are offered by one party in the belief that the other party will attach value to this gesture when in reality what the other party needs is something completely different.

Now for another “home truth”. Human beings who become involved in complex and difficult negotiations can become extremely competitive animals and will think nothing of exploiting an opponent’s weaknesses if these are disclosed during the bargaining process.

So, how do we “get to yes” with a person we are negotiating with, obtain what we need from the ensuing contract and not give too much away in the process?
I think I have the answer – why not employ a neutral facilitator to assist you and your opposing party negotiate and conclude an agreement?

Negotiating a contract is not that different from resolving a dispute. You still need to separate the people from the issues, explore common interests, invent options for mutual gain as well as establishing your Best Alternative To a Negotiated Agreement (“BATNA”) and Worst Alternative To a Negotiated Agreement (“WATNA”).

If any of this sounds familiar it is probably because you have read one of my previous articles on preparing for a successful mediation.

So, who should you turn to when you need to “get to yes”? You’ve guessed it – you need to speak to one of my mediator friends.

Peter Vinden

Mediator, North West Mediation Solutions

Sally Williams confirms in her article in Daily Telegraph Magazine, Saturday 10^th April 2010,the recent experience of North West Mediation Solutions of the high level of challenges by family members  to the last wills and testaments of loved ones – over 50% of the mediations we carried out last month related to this area of dispute. When one thinks of the costs involved in taking the matter to trial (consider the recent RSPCA case), it makes sense to mediate and avoid heartache and financial ruin.

Peter Whitman

The questions being raised both here and in the USA around dispute resolution are:

·         Mediation, should it be considered before and instead of litigation?

There is a push from the clients … looking for rapid and effective dispute resolution,” says Richard Naimark, senior vice president of the American Arbitration Association (American Bar Association Journal 11.3.2009.), which accords with Lord Woolf’s comment (reported 22 October 2009 by Jonathan Rayner – Law Society Gazette)  that litigation was intended to be used as a ‘last resort’. See also Victoria Brackett’s report in Solicitors Journal of 9th February 2010 - http://www.solicitorsjournal.com/section.asp?navcode=318 survival skills.

·         Arbitrators – should they be more pro-active before the arbitration takes place?

International arbitration has ‘lost its way’, the former lord chief justice Lord Woolf told the Law Society Gazette this week (03 December 2009), as he launched a set of guidelines which will build mediation into the arbitration process.

The guidance will streamline proceedings at a time when there has been a marked increase in disputes.

It includes a ‘mediation window’ to be inserted into arbitral proceedings to make it easier for parties to come to a settlement in international arbitrations. This would enable proceedings to be adjourned so that mediation can take place at the request of the parties.

The guidance allows an arbitrator, with the parties’ permission, to give a preliminary view on the merits and issues in the case and the evidence required for a party to prevail. ‘Litigation in the commercial courts has improved, and if we aren’t careful international arbitration will suffer and be left behind because it hasn’t made changes to its procedures,’ he said.

‘Mediation and other early settlement techniques are being encouraged by the commercial court, but this is not taking place in international arbitration. If this continues clients will walk away from it.’

Echoing Lord Woolf’s sentiments above Patrick Dean, senior legal counsel at Nestlé, said: ‘We’re seeing an increase in the number of claims and everything is calling out for a more streamlined process. These rules and guidelines are timely.’

Lord Woolf’s views also accord with those of John Wilkinson of the New York State Bar Association’s Dispute Resolution Section who said in his article  in the ABA Dispute Resolution Magazine (Fall 2009) “The ultimate efficiecy in resolving a dispute is settlement through mediation before any arbitration is even initiated.”

·         Litigation – are cash-strapped corporations of all sizes, private individuals and others seeking to avoid litiga­tion costs by resolving business-to-business, consumer disputes via mediation?

Lord Woolf’s comment reported above (22 October 2009 Law Society Gazette) that “he had been told by one large corporation that the cost of defending litigation was so high that it always settled cases unless there was a public interest reason not to do so.”

Ian Luke, managing director of construction company Skanska, also took the stance in relation to Lord Woolf’s comments (03 December 2009), which also echoed the comments of Richard Naimark: ‘We spend a fortune each year trying to resolve disputes. As a businessman, that’s not good. Anything that reduces the need for litigation or arbitration is worthwhile.’

“Without Prejudice” and Confidentiality:

Best practice advice to clients on the meaning of these terms.

Your client contacts you as her solicitor regarding an impending settlement meeting. It has not yet been decided whether it will be a mediation or a joint settlement meeting. The issue bothering your client is confidentiality; she is concerned that negotiations will necessarily touch upon matters that are commercially sensitive to her company and she wishes to ensure that these will remain private.

Your main advice in response to this query is quite straightforward. First, whether there is a joint settlement meeting or a mediation there will, as matter of routine, be an agreement that the meeting is “Without Prejudice”. This, of course, would preclude one party telling the judge what happened at the meeting in the event that it did not produce a settlement. Secondly, if the settlement meeting did proceed by way of mediation there would ordinarily be an Agreement to Mediate which would confirm the “Without Prejudice” status of the meeting and also include contractual provisions about confidentiality.

So far, so good. Now, can you tell your client, in light of that advice, to relax? In general terms, you can. The courts have a long history of encouraging settlement discussions on the basis that the parties are free to talk about settlement without having what they say repeated at any later trial. It would be courageous, however, and some would argue negligent, to allow the client to believe that there was confidentiality without limit or exception.

The “Without Prejudice” rule has long been subject to exceptions. See for example those listed by Robert Walker LJ in Unilever ( [2000] 1 WLR 2436 at 2444);  they include situations involving estoppel, perjury, blackmail or other “unambiguous impropriety” as well as the need to explain procedural delay or apparent acquiescence. They also include the circumstances where one party’s assertion that “Without Prejudice” discussions led to a firm settlement agreement are contested by the other – see Brown v Rice and Patel  [2007] EWHC 625.

Two other cases, Muller v Linsley & Mortimer [1996] P.N.L.R. 74. and Cattley v Pollard [2007] Ch. 353, deal with the situation where there are two actions that are connected in some way and a party in the later action wants to adduce evidence from the first action. This would be the case where, say, there was a personal injury claim but the claimant was dissatisfied with the outcome, sued his solicitor for negligently handling a mediation and therefore wanted the court to consider all the mediation papers. In Muller and Cattley, where the court was faced with similar circumstances to these, disclosure was ordered, notwithstanding the claim that the material was “Without Prejudice”. See, however, Ofulue v Bossert 2009] UKHL 16 where the House of Lords held that “Without Prejudice” negotiations which took place during the first of two actions could not be reviewed by the court in the second action.

So, the “Without Prejudice” rule is not without exceptions or “grey” areas. It may have been thought that a contractually based mediation confidentiality agreement might be more watertight, but there are exceptions to take into account here as well, as can be seen from the recent decision in Farm Assist Limited (in liquidation) v The Secretary of State for the Environment, Food and Rural Affairs (No.2) [2009] EWHC 1102 (TCC). Here the claimant was seeking to set aside a mediated agreement, reached some years before, on grounds of economic duress. Both parties agreed to the court examining mediation material and to calling the mediator. The mediator did not agree to this and sought to set aside the witness summons on a number of grounds, including the confidentiality provisions in the agreement to mediate and the fact that the mediation negotiations were “Without Prejudice”. The court summarised the authorities and gave this guidance:

“(1) Confidentiality: The proceedings (at a mediation) are confidential both as between the parties and as between the parties and the mediator. As a result even if the parties agree that matters can be referred to outside the mediation, the mediator can enforce the confidentiality provision. The court will generally uphold that confidentiality but where it is necessary in the interests of justice for evidence to be given of confidential matters, the Courts will order or permit that evidence to be given or produced.

“(2) Without Prejudice Privilege: The proceedings are covered by without prejudice privilege. This is a privilege which exists as between the parties and is not a privilege of the mediator. The parties can waive that privilege.”

The above does not purport to be a full outline of the law relating to the “Without Prejudice” rule and confidentiality. It perhaps says enough, however, to suggest that best practice on advising clients about settlement meetings and mediations should be couched in careful terms and should be preceded a dialogue to discover whether any of the various exceptions might apply. Statutory provisions such as the Proceeds of Crime Act, the Data Protection Act and the Freedom of Information Act should also be borne in mind.

Clients should not be put off from having confidential discussions, for the reasons mentioned above, but they should be aware that if the court thinks that the public interest may be involved there are circumstances where it may be prepared to lift the veil.

Tim Wallis

Mediator and Solicitor
Chair, Dispute Resolution Committee, Civil Justice Council

North West Mediation Solutions