Lawyers Journal

Book Review: 'Beyond Winning'
Finding solutions where everyone takes home a trophy

Strife happens. But what are we going to do about it?

Since the beginning of time, humans have disagreed with one another. People are not always rational. We are often driven by emotions causing us to behave irrationally and make decisions that lead to our own detriment.

However, when individuals set aside their differences and join forces to find common ground, sometimes everyone can wind up better off. "Beyond Winning: Negotiating to Create Value in Deals and Disputes" by Robert H. Mnookin and co-authors Scott R. Peppet and Andrew S. Tulumello takes the reader on a journey on how to look beyond the norm of who is the winner in a dispute to visualize how each party can find value in a creative solution.

From the first page to the last, this book clearly imparts a heartfelt belief that disputes need not result in someone losing at the expense of someone else's gain. Instead, we discover opposing parties can each carve out big slices of pie even if they didn't initially know there was dessert.

In "Beyond Winning," author Mnookin, who is director of the Harvard Negotiation Research Project, and former project research fellows, Peppet and Tulumello, display the depth of their knowledge in the areas of negotiation, dispute resolution, deal making and problem solving.

The book gives the reader many real-life examples of disputes. The subject matter is interesting and isn't only for lawyers. Business people, students and others can identify with at least one of the many examples.

The excerpt below gives a flavor of the types of situations that are discussed:

Frank Bello, the owner of Frank's Deli was furious when he arrived at his lawyer's office. His landlord had just sued him. … His deli was located in a small strip shopping mall consisting of four stores. … Frank's competitor across the street, Nelson's Deli, now wanted to open a diner in the same mall - in a vacant storefront just two doors down from Frank's! … The lease clearly stated: "Landlord shall not rent space in the mall to any restaurant selling substantially similar food products." … The lawyer, Jamie Shapiro, took the lease from Frank's hand and examined it closely. … Instead of commenting on the lease, however, Jamie spent the next hour learning more about Frank and his business. Frank readily explained why he was afraid of more competition. He sold only cold foods…. His lease prohibited him from installing a stove or any other cooking equipment. … With a sigh, Frank also indicated that he was tiring of the deli business and really wanted to go to graduate school in a few years - if he could afford it. He would love to sell the deli, he explained, but the lease ran only 27 more months; therefore, its going concern value was minimal and Frank had nothing of substantial value to sell.

Because of diligence and creativity, a surprising resolution to the dispute is found that could have been overlooked.

"Beyond Winning" not only raises several issues to be aware of, it also provides guidance on how to proceed. The dynamics of negotiation and what causes different tensions are thoroughly examined.

One of the core ideas conveyed is that legal negotiations evolve based on different relationships, with the easiest example being that of four people: two clients and two attorneys. There is a relationship between the two clients, between the two attorneys and between the attorney-client sets. Each individual brings different agendas, beliefs, perspectives, expectations and corporate or legal cultures to the negotiation.

Healthy relationships can help in the problem-solving process. When poor dynamics exist between any of the individuals, the negative interpersonal relationships further complicate the process. In real-world situations, the relationships are often far more complex than just four individuals, such as a large organization represented by multiple attorneys or an in-house counsel working with attorneys in a firm. Layers of relationships are added, requiring more coordination to maintain the parties' abilities to negotiate and balance tensions that will inevitably arise.

There is no doubt that when parties seek and find value, not everyone is equipped with the same morals. The authors foresee possible dilemmas. And they discuss ethics in negotiations, specifically when it comes to how attorneys maintain professional integrity and obey the Rules of Professional Conduct while dealing with conflicts, issues of fraud and nondisclosure.

"Beyond Winning" covers it all, showing readers how to start with a problem, negotiate a solution and create value for all parties involved - from the simplest of dynamics to the most complicated situations.

©2014 Massachusetts Bar Association