In this edition of the Mediation Network of North America blog, learn Why Positional Bargaining Fails and how you can improve your mediation skills with Dr. Ben Earwicker, M.Int.St., J.D., Ph.D.
Negotiation is an integral part of life—whether we are closing a business deal, resolving a family dispute, or advocating for a cause. Yet, as Fisher, Ury, and Patton explain in Getting to Yes, most people instinctively approach negotiation with positional bargaining: staking out a fixed position and making concessions until a compromise is reached. In Chapters 1 and 2 of their seminal work, the authors break down the inefficiencies and pitfalls of this common approach, advocating instead for a method based on interests rather than positions.
Fisher and Ury outline two predominant styles of positional bargaining, each with its own drawbacks:
A “soft” negotiator prioritizes maintaining relationships over securing the best possible outcome. This approach is characterized by:
A tendency to avoid conflict at all costs.
Willingness to make concessions easily.
An emphasis on being fair and cooperative, often to the negotiator’s own detriment.
While this style fosters goodwill, it frequently leads to unbalanced agreements where one party gains disproportionately at the expense of the other. Moreover, it sets a precedent that can encourage exploitation—when one side is perceived as too willing to concede, the other may continue pushing for more.
At the other extreme, “hard” negotiators focus on winning at all costs. Their approach typically involves:
Setting high, rigid demands.
Using aggressive tactics to pressure the other party.
Making minimal or no concessions.
This method often results in deadlock or strained relationships. When both sides adopt a hard stance, the negotiation becomes a test of wills rather than a problem-solving exercise. Even if an agreement is reached, it may come at the cost of long-term collaboration and trust. The damage to relationships can be especially harmful in contexts where ongoing cooperation is necessary, such as workplace or diplomatic negotiations.
The authors argue that positional bargaining—whether soft or hard—tends to be inefficient, produces unwise outcomes, and jeopardizes relationships. Here’s why:
It Encourages Stubbornness Over Flexibility
When negotiators anchor themselves to fixed positions, they become less willing to consider alternative solutions. This rigidity stifles creativity and prevents both sides from exploring mutually beneficial options.
It Focuses on Positions Rather Than Interests
The essence of effective negotiation is understanding why each party wants what they want. Positions are often surface-level statements (e.g., “I need a 10% raise”), whereas interests reveal underlying motivations (e.g., “I need higher pay to afford childcare”). When parties focus solely on their stated positions, they miss opportunities to satisfy their true needs through alternative solutions.
It Wastes Time and Energy
When both sides dig in, negotiations can become protracted battles of attrition. Instead of working toward a resolution, the focus shifts to defending one’s stance and undermining the opponent’s. The longer a negotiation drags on, the more costly it becomes in terms of time, resources, and emotional strain.
It Harms Relationships
Hard bargaining creates adversarial dynamics, while soft bargaining fosters resentment from unfair compromises. Neither method builds the foundation for healthy, long-term partnerships. When negotiations end with one party feeling exploited or unsatisfied, future interactions are likely to be strained.
Rather than fixating on rigid positions, Fisher and Ury propose principled negotiation, which focuses on identifying and addressing underlying interests. The key principles include:
Separating the people from the problem – Avoid personal attacks and keep discussions focused on issues rather than personalities.
Focusing on interests, not positions – Dig deeper to understand why a party holds a certain stance and look for ways to meet those underlying needs.
Generating options for mutual gain – Brainstorm multiple possibilities before deciding on a final agreement.
Using objective criteria – Base decisions on fair standards (such as market value, legal precedent, or expert opinions) rather than power plays or subjective opinions.
By shifting from positional bargaining to an interest-based approach, negotiators can craft solutions that satisfy all parties, preserve relationships, and yield more durable agreements.
Fisher and Ury’s critique of positional bargaining serves as a compelling argument for a more thoughtful, interest-based approach to negotiation. Whether dealing with workplace conflicts, business deals, or personal disputes, moving beyond fixed positions and focusing on underlying interests allows for more effective, collaborative, and sustainable agreements. By applying these principles, negotiators can avoid unnecessary conflict, foster trust, and ultimately achieve better outcomes for all involved.
Are you ready to take your conflict resolution skills to the next level? Dr. Earwicker’s Professional Development Mediation Training offers a comprehensive, ADR Training Course designed to prepare you for the demands of contemporary mediation, in-person or online. Building on the expertise of Dr. Ben Earwicker, M.Int.St., Ph.D., J.D., this Online Mediation Course equips you with the practical tools you need to resolve disputes effectively and ethically—whether in business, family, or community settings.
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Dr. Earwicker’s curriculum is designed to build a strong foundation in Mediation Skills Training. By integrating theory with hands-on practice, you’ll develop critical competencies essential to a successful career in dispute resolution:
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Absolutely! Once you successfully complete the training and assessments, you will receive a certificate of completion that verifies you have met the Professional Development 40-Hour mediation training standard. This can be used to apply for mediator rosters and private practice opportunities.
Dr. Earwicker's course meets the widely accepted Professional Development 40-Hour training requirement for mediation certification in most states and jurisdictions. Send us a request using the form below to check your specific state or local jurisdiction.
No prior legal or counseling background is required! Our course is designed for professionals from all industries who want to develop mediation skills. Many successful mediators come from business, human resources, education, social work, and law.
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Custom Rock Hill HR Solutions with Dr. Benjamin J. Earwicker, J.D., Ph.D.
National expertise. A customized approach to your HR systems. A thoughtful, insightful approach to your personnel issues.
Ben has overseen the adjudication and determination of thousands of claims of employment discrimination, retaliation, and workplace harassment as director of a state administrative law agency. He has mediated countless employment disputes and trained thousands of employees, managers, and C-Suite executives.
Consulting that works.
Talk with me today about how my consulting services can help you move quickly to strengthen your Human Resources at any stage. Custom HR solutions should be personalized, just like your personnel and operations. Let me help assess your needs and create a custom HR solution for your organization, whatever situations you are dealing with.
Dr. Ben Earwicker, J.D., Ph.D., offers fresh and innovative approaches to Human Resources management, drawing on his nearly two decades of experience with conflict resolution, employment law, and personnel management. He has successfully mediated hundreds of disputes through his national private practice and administration of a state-wide mediation program through the Idaho Human Rights Commission.
I’ve helped businesses, agencies, and organizations across the country transform their HR operations. Whether you are a startup company without the resources for a full-time HR department or an established corporation in need of a third-party investigation, I can help. Whether remote and online or on-site, I have the experience you need to build your HR systems, provide ongoing training to HR and other staff, and get you the tools you need to address difficult workplace personnel issues.
When it comes to People and Talent, one size doesn’t fit all.
Maybe mediation could help turn a situation around. Maybe it’s time to have a difficult conversation with an employee who is fostering a toxic work environment. Perhaps you need support building out policies and best practices for personnel management. Talk with me today about your needs and what we can create to meet those needs.
Use this form to send Dr. Earwicker a message, and we’ll set up an initial, free, no-obligation consultation to discuss your situation in greater detail. Dr. Earwicker can provide you with answers to your questions and a specific estimate, based on your custom HR solutions request & needs.
Dr. Earwicker provides a range of Human Resources and employment law trainings based on his extensive experience as director of an administrative law enforcement agency, mediator, attorney, academic administrator, and professor. Trainings are tailored to your institution and employee needs, and topics can be expanded or combined, depending on your preferences.
The following list includes the most commonly requested trainings; others are available on request:
Harassment and Sexual Harassment Prevention
State and Federal Anti-Discrimination Laws
Respectful Workplace: Preventing and Addressing Harassment, Discrimination, and Incivility
Workplace Reporting and Resolution Procedures
Diversity, Equity, Inclusion, and Belonging: Something for Everyone
Disability Accommodations and the Interactive Process
Service Animals in the Workplace and Public Places
Hiring and Firing Best Practices for Managers and Supervisors
How and When do the ADA and FMLA overlap?
Terms and Conditions of Employment: Best Practices for Supervisors to Maintain Fairness and Equity in the Workplace
Updates on Specific Statutes (ADA, Title VII, PWFA, etc.)
Sex, gender, Sexual Orientation, and Gender Identity: State and Federal Protections in the Workplace
Age and Age Discrimination in the Workplace: Preventing Discrimination Against Older Workers
EEOC and State Agency Investigative Processes: What You Can Expect When You are a Party to a Case Before an Fair Employment Practice Agency or Commission
Custom South Dakota HR Solutions with Dr. Benjamin J. Earwicker, J.D., Ph.D.
National expertise. A customized approach to your HR systems. A thoughtful, insightful approach to your personnel issues.
Ben has overseen the adjudication and determination of thousands of claims of employment discrimination, retaliation, and workplace harassment as director of a state administrative law agency. He has mediated countless employment disputes and trained thousands of employees, managers, and C-Suite executives.
Consulting that works.
Talk with me today about how my consulting services can help you move quickly to strengthen your Human Resources at any stage. Custom HR solutions should be personalized, just like your personnel and operations. Let me help assess your needs and create a custom HR solution for your organization, whatever situations you are dealing with.
Dr. Ben Earwicker, J.D., Ph.D., offers fresh and innovative approaches to Human Resources management, drawing on his nearly two decades of experience with conflict resolution, employment law, and personnel management. He has successfully mediated hundreds of disputes through his national private practice and administration of a state-wide mediation program through the Idaho Human Rights Commission.
I’ve helped businesses, agencies, and organizations across the country transform their HR operations. Whether you are a startup company without the resources for a full-time HR department or an established corporation in need of a third-party investigation, I can help. Whether remote and online or on-site, I have the experience you need to build your HR systems, provide ongoing training to HR and other staff, and get you the tools you need to address difficult workplace personnel issues.
When it comes to People and Talent, one size doesn’t fit all.
Maybe mediation could help turn a situation around. Maybe it’s time to have a difficult conversation with an employee who is fostering a toxic work environment. Perhaps you need support building out policies and best practices for personnel management. Talk with me today about your needs and what we can create to meet those needs.
Use this form to send Dr. Earwicker a message, and we’ll set up an initial, free, no-obligation consultation to discuss your situation in greater detail. Dr. Earwicker can provide you with answers to your questions and a specific estimate, based on your custom HR solutions request & needs.
Dr. Earwicker provides a range of Human Resources and employment law trainings based on his extensive experience as director of an administrative law enforcement agency, mediator, attorney, academic administrator, and professor. Trainings are tailored to your institution and employee needs, and topics can be expanded or combined, depending on your preferences.
The following list includes the most commonly requested trainings; others are available on request:
Harassment and Sexual Harassment Prevention
State and Federal Anti-Discrimination Laws
Respectful Workplace: Preventing and Addressing Harassment, Discrimination, and Incivility
Workplace Reporting and Resolution Procedures
Diversity, Equity, Inclusion, and Belonging: Something for Everyone
Disability Accommodations and the Interactive Process
Service Animals in the Workplace and Public Places
Hiring and Firing Best Practices for Managers and Supervisors
How and When do the ADA and FMLA overlap?
Terms and Conditions of Employment: Best Practices for Supervisors to Maintain Fairness and Equity in the Workplace
Updates on Specific Statutes (ADA, Title VII, PWFA, etc.)
Sex, gender, Sexual Orientation, and Gender Identity: State and Federal Protections in the Workplace
Age and Age Discrimination in the Workplace: Preventing Discrimination Against Older Workers
EEOC and State Agency Investigative Processes: What You Can Expect When You are a Party to a Case Before an Fair Employment Practice Agency or Commission
Custom Aberdeen HR Solutions with Dr. Benjamin J. Earwicker, J.D., Ph.D.
National expertise. A customized approach to your HR systems. A thoughtful, insightful approach to your personnel issues.
Ben has overseen the adjudication and determination of thousands of claims of employment discrimination, retaliation, and workplace harassment as director of a state administrative law agency. He has mediated countless employment disputes and trained thousands of employees, managers, and C-Suite executives.
Consulting that works.
Talk with me today about how my consulting services can help you move quickly to strengthen your Human Resources at any stage. Custom HR solutions should be personalized, just like your personnel and operations. Let me help assess your needs and create a custom HR solution for your organization, whatever situations you are dealing with.
Dr. Ben Earwicker, J.D., Ph.D., offers fresh and innovative approaches to Human Resources management, drawing on his nearly two decades of experience with conflict resolution, employment law, and personnel management. He has successfully mediated hundreds of disputes through his national private practice and administration of a state-wide mediation program through the Idaho Human Rights Commission.
I’ve helped businesses, agencies, and organizations across the country transform their HR operations. Whether you are a startup company without the resources for a full-time HR department or an established corporation in need of a third-party investigation, I can help. Whether remote and online or on-site, I have the experience you need to build your HR systems, provide ongoing training to HR and other staff, and get you the tools you need to address difficult workplace personnel issues.
When it comes to People and Talent, one size doesn’t fit all.
Maybe mediation could help turn a situation around. Maybe it’s time to have a difficult conversation with an employee who is fostering a toxic work environment. Perhaps you need support building out policies and best practices for personnel management. Talk with me today about your needs and what we can create to meet those needs.
Use this form to send Dr. Earwicker a message, and we’ll set up an initial, free, no-obligation consultation to discuss your situation in greater detail. Dr. Earwicker can provide you with answers to your questions and a specific estimate, based on your custom HR solutions request & needs.
Dr. Earwicker provides a range of Human Resources and employment law trainings based on his extensive experience as director of an administrative law enforcement agency, mediator, attorney, academic administrator, and professor. Trainings are tailored to your institution and employee needs, and topics can be expanded or combined, depending on your preferences.
The following list includes the most commonly requested trainings; others are available on request:
Harassment and Sexual Harassment Prevention
State and Federal Anti-Discrimination Laws
Respectful Workplace: Preventing and Addressing Harassment, Discrimination, and Incivility
Workplace Reporting and Resolution Procedures
Diversity, Equity, Inclusion, and Belonging: Something for Everyone
Disability Accommodations and the Interactive Process
Service Animals in the Workplace and Public Places
Hiring and Firing Best Practices for Managers and Supervisors
How and When do the ADA and FMLA overlap?
Terms and Conditions of Employment: Best Practices for Supervisors to Maintain Fairness and Equity in the Workplace
Updates on Specific Statutes (ADA, Title VII, PWFA, etc.)
Sex, gender, Sexual Orientation, and Gender Identity: State and Federal Protections in the Workplace
Age and Age Discrimination in the Workplace: Preventing Discrimination Against Older Workers
EEOC and State Agency Investigative Processes: What You Can Expect When You are a Party to a Case Before an Fair Employment Practice Agency or Commission
