What kind of negotiator are you?
At the advanced mediation training held during INTA’s Annual Meeting, trademark practitioners from all around the world gathered to discuss how to break down obstacles to compromise by understanding the motivations and thought processes of the parties.
Though negotiations and mediation are often thought of as primarily about money, the session trainers warned that there are other goals involved and even the financial demands are framed by more subtle pressures and values.
What do they really want?
One exercise featured a video reenactment of a mediation involving a sexual harassment claim. The mediator faced the challenge of not only navigating a highly emotional case, but reading between the lines of what the parties are saying to understand what their goals are.
“I have a job offer that more than matches my salary,” declared the accuser. Trainer Samuel Jackson (left) asked the 28 attendees what this statement revealed about her position and goals. Some suggested that she may be blustering, while others thought that it revealed that money was not her main motivation, notwithstanding her initial claim of $2 million in damages.
This bore out later on, when the accuser explained that all she wanted to do was to move on with her career, get an apology from the company, and demand that the accused be fired. She explained her demands in moral terms, stating she did not want the company to continue to portray itself as friendly to women.
Dealing with evil
The moral component of a party’s thought process can explain why some negotiations fail. Trainer Robert Dobbins of Judicate West and Appropriate Dispute Resolution talked about dealing with parties who feel that the other side is “evil” and that to bargain with them would be morally wrong.
Not only can the sense of moral righteousness itself lead to an impasse, it can also create other obstacles, such as a belief that the other party is pathologically dishonest and unlikely to honor any agreement anyway. In a trademark situation, this evil party could be a former business partner who may have stolen your intellectual property, or an infringer.
Overcoming this subjective notion of evil is an important task for a mediator. “As mediators we have to recognize the level at which the person has decided the other side is the devil, and maybe need to have a conversation showing that other people in a similar situation may have a different perspective,” explained Dobbins.
Beyond emotions, the trainers also talked about how understanding the full range of the parties’ objectives can lead to successful agreements. Addressing these needs can sometimes make negotiations more of a cooperative affair.
Interest-based bargaining with non-monetary components such as non-disclosure agreements and the structure of payments can be revealing about what is important to the parties, explained Denise Madigan of PMA Dispute Resolution. Distributive negotiations focusing solely on the amount of money are generally more adversarial.
“If you are able to negotiate across dimensions, it tends to lessen the competitive tension,” she said.
Skills beyond mediation
While many of the attendees hailed from North America where mediation is more common, other countries such as Anguilla, China, Germany and Spain were also well represented.
“There’s not very much formal mediation in [Brazil], but there are a lot of informal situations where you have to negotiate with the other side, and the topics discussed here are very helpful,” explained Carlos Eduardo Neves de Carvalho of Crivelli & Carvalho in São Paulo.
The wide applicability of these skills is reflected in the discussions and what constitutes the “dance” of negotiations. Some of the most active discussions involve non-legal scenarios. The hypothetical negotiation for a used car drew a lot of comments as attendees shared their favorite techniques for dealing with salesmen. And in a separate group session, Jia He Yang of Yang & Associates in Shanghai noted that some of the situations discussed remind her of dealings with her teenage son.
Regardless of the legal context, ultimately the role of the mediator is to get the parties to overcome such obstacles and agree to the rules of the negotiation dance, even when emotional or cultural differences get in the way.
“The problem is that one party thinks we’re dancing the waltz, and the other party is listening to Jimi Hendrix,” said Dobbins.