Most
children have at one time or another played with a woven straw cylinder
that is a few inches long known as a "Chinese finger puzzle". There is
an opening at each end just large enough for a finger to be inserted -
and trapped. Trying to escape, you tug in the opposite direction, but
the harder you pull the tighter the fabric stretches around each
finger. Only by pushing inward, thus moving counter to the direction in
which escape appeared to lie, can you get free.
This is a wonderful metaphor for how non-adversarial negotiating works. Instead of pulling toward our own self interests and protecting ourselves, we instead push toward the other people and the issues involved. We seek to really listen and understand , so that then, together, we can co-create a good solution to our problem. The more overlapping your interests are, the more ability you will have to co-create a solution that gives everyone what it is they need.
The problem with an adversarial approach is that we pull away from each other, like in the finger puzzle, and we get trapped. Now, it is very difficult to really talk to each other, to explore possible solutions, and to co-create durable solutions. Talking to each other, and not at each other, is the key to being able to agree on the core problem.
I often listen to both sides tell me their story. It seems to me that they have never really talked to each other. One side tells me that the problem is X and the other tells me that the problem is Y. But is my head I'm thinking of course they don't agree. Because, they don't agree on the problem. If they don't agree on the problem, of course they don't agree on the solution (which is what they have been arguing over for months and years).
For lawyers, an adversarial approach defuses a client's power and does a disservice to their ability to create solutions to today's problems. I envision that the lawyers of tomorrow will be facilitators who bring people together and help them resolve complex issues - and escalate along the adversarial continuum only as needed.