‘Commercial negotiation skills & strategies.’

Over the next two months, in my free time, I am researching & writing an article for publication in an academic journal about commercial negotiation skills & strategies. This exercise is a foundation & prelude for a 1 hour online talk I am presenting at 4pm GMT on Thursday 24 October 2024, to members of the SCMA worldwide (scmastandards.com). The talk is about ‘Mediation Advocacy in Trust & Estate Disputes.’ This is also a rare opportunity to update my negotiation skill set by innovating new negotiation techniques for use in settling probate disputes. Today I am completing the reading of the latest book by William Ury – ‘Possible.’ One of the key negotiation concepts and techniques discussed in the book, is how to ‘Engage the Third side.’ The idea at the centre of this technique is to think ‘Win-Win-Win.’ As Professor Ury writes on p.216 of his book, ‘[We] need to take a big step beyond our previous thinking about “win-win”. From “win-win” we need to move to “win-win-win”. We need to think in terms of a third win – a win for a larger community, for the future, for our children. This third win catalyses and sustains the efforts of the third side over the long term.’ I agree. In a probate dispute a ‘win-win-win’ scenario is not only: (i) preservation and expansion of the capital value of the estate for the benefit of future generations, through tax-efficient and retrospective post-death estate planning within the available time window; but also (ii) the survival and continuation of a family owned business. That requires the preservation of relationships, networks, and maintenance of liquidity, which in turn requires competent professional governance. William Ury has mediated every kind of dispute from probate/business succession disputes to ceasefires, and was the imaginative ‘brain’ behind the meeting which eventually took place between President Trump and Kim Jong Un, in Singapore, following which the risk of a nuclear conflict occurring between the US and North Korea dropped from 50% to less than 1% (see p.199 of the book). I have today also reposted two posts I wrote on Sunday about mediation advocacy i.e. negotiation. The negotiation techniques each post illustrates are explained in my comments below. I will expand upon these techniques in the article and talk.

  • ‘Mediation of Yacht Building Disputes.’ – In order to prepare, first think backwards from your planned destination. This is where in the course of the negotiation you want to persuade your opponent to move towards, i.e. it is the deal-making zone (‘DMZ’) based upon your lay client’s settlement range and BATNA. This is why I use a Work Breakdown Structure (‘WBS’)as an intellectual  tool for settling disputes. At the apex of the WBS is the optimal boundary of my lay client’s settlement range. I work backwards from that, so that I can see the entire terrain and plan a road-map for how to get my opponent to voluntarily move toward, and eventually into, my client’s DMZ.
  • ‘The paradigm of a “store of value” in Mediation’ – In order to help the mediator, you need to prepare your lay client to be open and frank with the mediator about what he values, needs and prioritises, and why. The mediator may then have a ‘light bulb’ moment, when he suddenly realises that either: (i) P.1 only wants the orange peel, whereas P.2 only wants the orange pulp, or (ii) that because the wishes, needs and priorities of P.1 and P.2 are asymmetrical, that counter-intuitively, they can nevertheless be reconciled. The method of reconciliation involves both P.1 and P.2 seeing the prized asset over which they are competing, not as a ‘thing’, but as a ‘store of value’, which can be shared. In which case, it may be possible to design a bespoke solution to the problem of reconciling their competing and potentially conflicting claims and priorities, by restructuring the legal and beneficial ownership, management and control, use, enjoyment and commercial exploitation of the asset, to their mutual advantage.