Written by My Collaborative Team President Edward S. Sachs
One of the most common reasons for negotiations to stall is that the parties begin bargaining before they have fully explored their options. The result is predictable: positions harden, creativity disappears, and participants become focused on winning rather than solving the problem.
Interest-based negotiation teaches us a different approach. Before discussing who gets what, the parties should first engage in option building, the process of generating as many possible solutions as possible before evaluating any of them.
Imagine a couple discussing the marital home. One spouse says, "I want to keep the house." The other responds, "I want it sold."
At that moment, the negotiation can quickly become a contest of competing positions. Each side begins gathering arguments to support their preferred outcome. The conversation narrows instead of expanding.
Premature bargaining doesn’t allow for interests to be flushed out. What is often lost is the exploration of alternatives that meet the client’s needs, interests and concerns. Could one spouse remain in the home for a limited period? Could ownership be shared temporarily? Could the home be refinanced? Could other assets be exchanged to offset the home's value? Could the home be rented before a future sale?
None of these possibilities emerge if the parties rush directly into bargaining.
A fundamental principle of effective negotiation is to separate the process of generating options from the process of evaluating them. Think of it as a brainstorming session. During option building, participants are encouraged to propose ideas without immediately criticizing or rejecting them. The goal is quantity before quality.
Many solutions that initially seem impractical can spark new ideas that ultimately lead to an agreement neither party had previously considered. When parties evaluate every idea the moment it is suggested, creativity is shut down and discussions become defensive.
Option building becomes easier when parties focus on underlying interests. A spouse who insists on keeping the house may actually be interested in stability for the children, remaining in a preferred school district, preserving emotional connections or avoiding the task of moving. Once these interests are identified, many more options become available. The same is true in any dispute. Interests create opportunities. Positions create roadblocks.
During option building, parties should temporarily suspend judgment and explore possibilities by asking "What else might work?" "How could we modify that idea?" "What would make this option more attractive?" "What are we missing?" These questions encourage collaboration rather than competition.
