A few weeks ago, I attended MCLE’s 8th Annual ADR and the Law Conference. Daniel Shapiro of Harvard’s Program on Negotiation delivered the keynote address, and shared with us some of the research and concepts underlying his new book, Negotiating the Nonnegotiable. After walking us through several theories of dispute resolution, he moved on to describe his latest theory regarding what prohibits people from reaching agreement.
In sum, and with apologies to Dr. Shapiro for oversimplifying his work, he theorizes that any time a dispute threatens one’s identity, the situation becomes highly charged and almost impossible to resolve without taking several steps back to unpack the emotions and identity issues surrounding the dispute. While I have yet to finish his book, the concepts he discussed with us made a great deal of sense and reflect my own experiences in negotiations both as an attorney and as a neutral.
One of the very first cases I handled as an attorney involved an employee who had been asked to leave a job because the employer thought s/he was no longer capable of performing its essential functions. This employee had a serious, chronically debilitating medical condition and the employer had provided many accommodations to over the duration of the employee’s illness. Ultimately, the employer determined that it would be unsafe for the employee and for others to allow the employee to continue to work. S/he disagreed, and litigation ensued.
What became clear very quickly is that the employee’s identity and self-worth depended upon the ability to remain in the workforce. Moreover, the stress of the litigation impacted both the employee and the employee’s former co-workers, with whom s/he had been quite close. Both sides preferred a creative solution over protracted litigation. With the help of an extremely skilled mediator, the parties reached an agreement sensitive to the identity needs of the employee that also address the employer’s legitimate safety concerns. Negotiating the actual deal took only a few hours; addressing the employee’s perception that s/he would no longer be of value to society if s/he could no longer work took far more time. Once the employee let go of this perception, in part aided by some very creative future employment suggestions from the employer, the employee and employer reached terms quickly.
The moral of the story? Whenever possible, take the time to find out who really is on each side of the table. That knowledge may be far more important than the amount of money available to settle the matter.