N D: A R A: Ramanah.V

NEGOTIATION FOR DUMMIES: A REALIST APPROACH
Ramanah.V.
I. Introduction
The article “Saving Mr. Banks and Other Interest-Based Negotiations” by Michael Rogers is
a timely article on the merits of interest-based negotiation and how it is a powerful approach
to create a win-win situation. In the wake of increasing pendency at Courts and the rise of
alternate dispute resolution mechanisms, this article offers hope on how interest-based
negotiations fulfil party interest that hitherto can never be achieved in litigation. It cites
various “transactions” where understanding the interests of the party and providing creative
solutions to accommodate those interests resulted not only in saving time, but also promote
satisfaction as regards the result that was achieved through such negotiation. The author adds
that giving due consideration to the interests add “creative currency” or “non-monetary
currency” that enhances the “appeal of the offer to one or both the parties”. It highlights the
role of such non-monetary currencies such as apologies, safety plans, a letter of introduction,
meeting the needs of self-esteem and respect, love languages etc. in reaching a conclusion to
a dispute. Overall, this article convinces a reader that negotiation is a process worth trying.
II. An Analysis of the Interest-Based Approach
The interest-based approach, as is borrowed from the famous book of “Getting to Yes” by
Fisher and Ury’s four principles of negotiation, aims at identifying the “interests” of the
parties rather than their “position”, in order to identify the motive behind what is the real
reason they have a conflict and what they really want. An interest-based approach is powerful
in one sense; it appeals to the ego of the party to the dispute and satisfaction of such ego can
be valued higher than compensating such party through material interests. It highlights
various real life examples where the satisfaction of the real “want” of the party help save time
that would have otherwise been lost in litigation, as well as save money. The interest-based
approach also highlights another important facet that is hitherto overlooked: the need to be a
realist and take into consideration the legitimate non-monetary demands of the parties. It also
highlights that satisfaction does not always come with money and that one needs to listen to
the other party completely and delve into their needs so that their innate desire is exhibited.
But such an approach also has its pitfalls. Consider the example of a negotiation
between a large MNC and its employee who has been laid off on the grounds of
discrimination and racism, but nevertheless has no sufficient proof to prove the same. In such
scenario, the former party being clearly powerful and at a higher bargaining position, need
not care for the other party’s interests knowing that the other party would never succeed
anyway even if the negotiation failed. Consider the same scenario with the caveat that the
employee has substantial proof to prove that the MNC engages in discriminatory practices. It
is evident to the employee that if the case goes for trial, it would take years for the verdict to
be pronounced and hence her aim would be to get the best out of the negotiation. An interest
based approach would mean that the MNC should not really admit in public that it indulges in
discriminatory practices, at the same time, the employee must obtain due compensation/ give
back the job as well as an assurance that the MNC would not further indulge in such
practices. Thus, the proceedings of negotiations would be held confidentially where the
interests of both the parties could be satisfied. However, after such settlement, what stops the
MNC from indulging in discriminatory practices again? Similarly, in an example given in the
article regarding the creation of an award in the name of a student who had died due to the
negligence of the school, what would be the remedy if the school awards in the name of the
student, say for a period of two to three years, and fails thereafter? Is the solution complete?
III. Conclusion
There are instances where the real interests of the parties are difficult to discern; consider
complex cases such as the Babri Masjid dispute, where the interests could be against one
another and where compromise does not seem to be a solution. In such cases, an independent
adjudication coupled with the faith in that institution could be better. But nevertheless,
interest based negotiations should work in most of the cases. It is not only time and money
saving, but also helps in developing a personal bond with the other party since it is the desire
that is getting fulfilled.

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NEGOTIATION FOR DUMMIES: A REALIST APPROACH

II. An Analysis of the Interest-Based Approach

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