5.7 Listening Is A Key
Listening, then, is a key to understanding, and understanding is key to solving problems within the moral orientation that takes feelings into account, but does not provide them with unfair, or bias infect.
Listening should be done first because it will help break the lawyer out of the position bargaining role playing. It establishes the lawyer in the learning mode first, as opposed to the doing mode. It subverts what the lawyer knows to what the opponent knows and feels. In addition, to the extent that information is power, the listener has the advantage of knowing both sides (the lawyer’s and the opponent’s) before speaking. In addition, listening earns the listener the leverage of fairness. The more the opponent is listened to and understood, the more the opponent will likely listen and seek understanding in return. Finally, these seven steps cultivate in the listener’s patience and openness, which are behaviors that evidence respect.24Again, Rusk has some concrete practical advice for the negotiator during the third step where the lawyer may express his position in the matter. Rusk’s concrete steps better ensure that the advocate is acting out of the perspective of respect. Rusk describes these as follows:25
1. Ask for a fair hearing in return.
2. Begin with an explanation of how the other person’s thoughts and feelings affect you. Avoid blaming and self-defense as much as possible.
3. Carefully explain your thoughts, desires, and feelings as your truth, not the truth.
4. Ask for restatements of your position—and corrections of any factual inaccuracies—as necessary.
5. Review your respective positions.
The result is that the win/lose, “I’m right and you’re wrong,” dichotomy may immediately be broken. The possible solutions that arise multiply greatly when the focus turns to what will create, maintain or maximize the healthy relationships already present in the situation.
Within a relationship of trust and respect, each negotiator will look for ways for each side to win.Ask yourself what difference it makes if, instead of asking, “Can we win an injunction?” the lawyer asks himself, “Are there any alternatives where everyone can win? You might ask the client different types of questions with a problem solving strategy in mind. For example, you might ask,
What is the market conflict?
Do people who can afford Homestead Housing, qualify for financing for Best Homes?
Are you really competitors?
Could you agree to refer customers to each other?
Can Homestead help Best Homes build better cheaper stand alone homes by using the mass manufacturing process?
Within a relationship of trust and respect between bargainers, it is more likely that bargainers may think in these terms. It is also more likely that the lawyers will prepare by asking their client’s the tough questions.
What was said about the quality of Homestead’s homes?
What is the quality control procedures Homestead uses to insure product design and installation quality?
What information did Best Homes have about the quality of Homestead’s homes?
What is fair for each to contribute for the fair resolution of what was said?
Depending on the answers to these questions the problem solving negotiators and their clients can cut through the adversarial rights based analysis and frame a quicker and better solution.
To get into this problem-solving mind set is not easy. Problem solvers advise that their model works best when both negotiators have agreed to such a strategy. They suggest opening statements carefully designed to try to get buy in from the opposing negotiator for taking a more open and problem solving approach. If, however, the other side has taken a hard bargaining approach—extreme positions, followed by small concessions, with little analytical support for the positions taken—it does not mean that by careful planning and taking a problem solving lead, by example, that problem solving can not occur.
1. Plan for setting the right tone
2. Make your process explicit and include your view of the benefits of a problem solving approach
3. Describe underlying needs and goals of each side, and seek information about the needs and goals of the other side
4. Use active listening and ethical persuasion techniques to build trust
5. Use analytical structures to try and give rise to a valuation that will be able to with stand a fairness critique