Barrister and mediator Paul Sills discusses how negotiations can serve as a strategy to benefit you, depending on the circumstances. He highlights that one should not emotions get the upper hand and to lead your clients with cool, cognitive questions.
Should clients negotiate with parties they view with the utmost contempt, or where they have grave concerns regarding those parties’ ethics or tactics? Can you make deals with such people or do you fight them?
People are often categorical when answering this sort of question: it is simply yes or no. Those that say no do so on the basis that these “devils” will always be smarter or they will lie,cheat and bully you into giving away too much. They will over promise and under deliver, while you compromise your integrity along the way.
Such black and white views can be easily challenged. For example, Nelson Mandela negotiated with the apartheid government despite clear ANC guidelines to the contrary. On the other hand, Churchill refused to negotiate with Hitler. Both strategies were appropriate in the circumstances that they were deployed.
Mandela’s example shows us that negotiating with a powerful bully can ultimately produce a successful outcome. However, unless they have Mandela’s clarity of thinking, your clients will need considerable support in order to make the decision to negotiate and then to navigate the process.
Parties need assistance with cool cognition versus hot emotions and impulses. Psychologists characterise willpower or self‑control in part as the ability to employ a cool cognitive system of behaviour rather than a hot emotional system. Our cool system is essentially a thinking system incorporating knowledge about sensations, feelings, actions and goals. While the cool system is reflective, the hot system is impulsive and emotional.
When we are hot and emotional we tend to fall into certain traps regarding how we view the people on the other side of the table. In particular, we:
- Demonise or dehumanise;
- Fall back on tribalism or moralism;
- Answer calls to battle.
Professor Moonkin of the Program on Negotiation at Harvard suggests that we can help our clients by being like Mr Spock from Star Trek and taking them through the following cool cognitive questions:
- What are my interests and what are my enemy’s interests?
- What are my alternatives?
- Are there any potential or negotiated outcomes that can meet my interests better than my best alternative?
- How can I implement any agreement I reach with this devil?
- What is it going to cost me to negotiate with this person?
Clients should not make emotional decisions regarding these five questions but should systematically compare the costs and benefits of mediating versus fighting. They need you to serve as Dr Spock to assist with that process.
Paul Sills is a barrister with over 20 years’ experience working in global litigation markets. Paul is also an accomplished business leader, having been involved in a diverse range of companies (as CEO or director) including the marine industry, global health care and international freight. Paul has been engaged in mediations both as a legal advisor and as a client since 1995 and as a mediator since 2010. These have included multi-parties and complex issues surrounding Treaty of Waitangi settlements, aviation disasters, leaky homes, construction and receiverships. With a unique understanding of the challenges businesses and individuals face and drawing on his years of commercial and legal experience, Paul provides timely and cost-effective solutions for his clients. Paul’s appointments include Associate Member of AMINZ, a member of the panel of mediators for the Marine Industry Association, Triathlon NZ Age Group Adjudicator for 2015 and 2016 and a member of the panel of mediators for the New Zealand Law Society. Paul is approved to assist with the Society’s Early Resolution Service, as well as standard track mediations. As a barrister Paul maintains both an active commercial litigation practice and a comprehensive mediation practice. Contact Paul at paul.sills@paulsills.co.nz or connect via Twitter 
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For more information visit Paul’s website https://paulsills.co.nz/
