Getting to Yes

Negotiation is not only a fact of life, but also an integral aspect of all relationships—personal, familial, business, and the like. In all relationships, people do not always see eye to eye about a wide variety of issues, problems, approaches to decision-making, risks, etc. The list is never-ending. Log-jams, disagreements, and disputes, in the main, are addressed and resolved through negotiation.

As a construction lawyer of many years (45), negotiation looms large from the front-end of a transaction to the back end when disputes manifest and, often, spill over into dispute resolution. So, I bring to this article the perspective of one who has enjoyed a wide variety of negotiations. There seems to be a never-ending supply of contentious issues that plague the business of construction, design, and procurement.

Until approximately 20 years ago, I confidently assumed I was an excellent negotiator. As an experienced construction lawyer, mediator, arbitrator, and litigator I thought I knew how to effectively and wisely negotiate. In my mind, I was a good negotiator. That mode of thinking ended when I stumbled across a little book that so changed my approach to negotiation that I have incorporated its core principles, insights, and precepts into my daily work as a construction lawyer, the mediations I conduct as a construction mediator, and the settlements I negotiate for clients.

Getting to Yes posits a now proven series of methods and approaches encapsulated in the descriptive phrases, "principled negotiation" or "negotiation on the merits". Originally authored by Roger Fisher and William Ury, this book revolutionized negotiation with the simple goal of achieving interest based, wise agreement.

I have read this book so many times that its pages are worn and covered in yellow highlights. Its key tenets range from don't bargain over positions, separate the people from the problem, focus on interests, invent options for mutual gain to using objective criteria. The authors also address how to manage heavy-handed tactics, dirty tricks, and establishing a BATNA to evaluate the merits of the other side's deal on the table.

I keep several copies in my bookcase at my office. Often, I hand them out, especially to younger lawyers.

There are other related publications which are also insightful and helpful including Getting Past No and The Power of a Positive No.