Chapter 20, page 456
Make a note of the sorts of interests that could be at stake in the following situations for each party. Remember, you need to move beyond an identification of what each party might want in order to discover why they might want it.
1. A husband and wife engaged in negotiations for his access to their children following the breakdown of the marriage.
The wording of this scenario suggests that the children are normally resident with their mother so there are a range of levels of access that the father may have, including telephone contact only, supervised visits, unsupervised access for specified hours/days, or a more open and flexible arrangement.
You may have thought of the following interests that would motivate the parties when deciding on access arrangements:
- Feelings of hostility towards their spouse. Although an ideal situation would be one in which both partners put aside their feelings about each other to decide an access arrangement that was based on the needs and well-being of the children, it is often the case that one or both spouses is overwhelmed with acrimonious feelings following the breakdown of a marriage and allows this to colour their behaviour so that access arrangements are used as means to punish their spouse; for example, the mother may restrict the father’s access as revenge for his infidelity. Even situations in which one partner seems to be offering generous arrangements may be motivated by negative emotions if it is done in the full knowledge that it inconveniences the other party; for example, if the husband works full-time, an offer of custody all day on a Wednesday and Thursday is not one that he can accept.
- Desire not to miss important events. Both parents are likely to want to spend time with the children on birthdays and at Christmas.
- Concerns about the welfare of the children. If the mother has always been responsible for childcare whilst the father has worked to provide for the family, she may be worried that he will not know how to take care of them if he has access that spans several days or the father may have moved to accommodation that is not suitable for overnight stays for the children. Equally, the father may worry that he is being excluded from daily decisions that affect the welfare of the children.
- Fears about being cut out of the children’s lives. The non-resident father may fear that his role is no longer important. Either partner may have concerns about their role in the children’s lives if their former spouse has a new partner.
- Financial considerations. Either parent may conflate the issue of access to the children and the level of financial support.
- Desire for reconciliation. If one of the parties wishes to rebuild the marriage, they may seek access arrangements that maximize contact with their estranged partner. For example, the mother may specify that the father can have unlimited access within the matrimonial home but only limited access outside.
2. Negotiations for the sale of a house between vendor and purchaser.
- Financial considerations. Obviously price is a key issue in commercial negotiations, but it is always important to explore the reasons behind the financial position. If you discover why the vendor is insistent on a higher price or why the purchaser is adamant that they cannot pay more, you may find hidden interests that can actually be fulfilled in non-financial ways or by a more flexible approach to the financial arrangements.
- Timing. This may be an issue for either party. Find out why this is the case. Understanding the reasons why one party needs the deal to be completed quickly or cannot complete until a certain date will give you greater insight into the underlying issues thus enabling you to identify situations in which there is no scope for flexibility with regards to timing or to propose more creative solutions that will help you to gain agreement. For example, if the vendor is immovable on the issue of timing, stating that the sale must be completed within three weeks, and you discover that this is because of his need to purchase another property, it may be that there is no flexibility on timing but that this can be used to negotiate other concessions for the purchaser. However, if his urgency to complete is motivated by a desire to avoid the higher rates of tax that come into force in three weeks’ time, this is something that can be addressed by a proposal to share the costs if this gains other advantages for the purchaser. These strategies cannot be developed without knowledge of why time is of the essence.
- Ownership of household items. There are a whole range of items that the purchaser may want to keep or the vendor may wish to acquire. It would be important to know what items within the house are regarded as part of the fabric of the house that are included within the purchase price and what items are to be considered as a separate issue for negotiation. Again, find out why the other party wants to keep/acquire possession of this item as this gives scope for flexibility in negotiation. For example, if the vendor wants to keep curtains because they were a gift from a recently deceased relative, it is unlikely that the purchaser’s desire to obtain them because they are a nice colour and it is more convenient than having to buy new ones is going to prevail. However, if the vendor wants to keep them because they can be altered to fit his new house, there is scope to offer money in return for the curtains to persuade the vendor that it would be nice to buy new curtains that suit the character and decoration in his new home.
3. Contract negotiations undertaken on behalf of a professional golfer and a new sponsor.
- Control. What level of control will the sponsor want over the golfer and his activities both in sporting and non-sporting terms? Is the sponsor primarily concerned with lucrative opportunities or is he interested in publicity? How does the golfer feel about these decisions being made for him? Does the sponsor want to specify where the golfer lives and what competitions he enters? Does he want the golfer to attract media attention and is the golfer comfortable with this? This is a complex relationship with control at the heart of it so there is much to be discovered about the underlying interests of the parties and their feelings about the relationship.
- Financial issues. Obviously, financial considerations are central to a sponsorship agreement but do not forget that some things cannot be purchased. For example, if the sponsor wants the golfer to endorse products that raise ethical issues for the golfer, this may not be something that can be surrendered in return for money. Why does the golfer object to a particular product? Why is the sponsor so keen on it? Can the objectives of the sponsor be achieved without compromising the ethical beliefs of the golfer?
- Duration. How long does each party want the agreement to last? If there is a discrepancy, ask why the other party has a particular length of agreement in mind. The golfer may want a longer agreement to add security if he is nearing the end of his career or a short agreement if he is hoping for a better offer in the future. A sponsor may be reluctant to commit to a long agreement until he has tested the golfer on a short-term basis to see how well he fulfils his part of the agreement.
4. The owner of a hotel and a carpet fitter concerning the supply and installation of new carpets.
- Cost. What is the hotel owner prepared to spend? Try to find out the parameters of the budget to determine how much scope there is for price to be balanced against other factors.
- Quality. If the price includes the supply and installation of carpets, this implies that the fitter is going to choose the carpets. Given that lower quality will increase the fitter’s profit margins but make the deal less good for the owner, are there any stipulations as to minimum quality of the carpet that need to be taken into account.
- Colour. This could be an important issue for the owner who is likely to want the carpet to match the colour scheme of the hotel. Specific details will be important here as colour can be subjective; one person’s blue is another person’s green. The carpet fitter may have a supply of carpet that he hopes to use to minimize his costs so it will be important to ensure that this is of a colour and quality that fits the owner’s requirements.
- Timing. Either party may have issues with regards to timing. The fitter may have other jobs booked that he needs to work around whereas the owner may have a particular time by which the carpet needs to be fitted—perhaps for a particular function, for the launch of a new service, or during a quiet period.
- Ongoing relations. The carpet fitter may be keen to ensure that there is an ongoing relationship so that he is used for any future work or so that the hotel owner recommends him to others. If this is the case, he may be willing to settle for a less good outcome in terms of cost, for example, in order to ensure that there is goodwill between the parties. However, if the carpet fitter has a full customer list or is not concerned about his reputation, he may be willing to drive a harder bargain and sacrifice the good opinion of the hotel owner.