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.
What Students are Saying
I really liked the fact that I could take this course on my own schedule, and Ben's feedback was pretty great and super fast. I felt like he really cared about my progress through the course and gave me really good constructive feedback.
If you're thinking about doing an online mediation training, don't look any further...this course checks all the boxes and I got my certification in less than 2 weeks from start to finish.
What I appreciated most was the depth of practice scenarios. They weren’t just theory—I got to test out mediation skills in realistic settings. Ben’s personalized critiques were always spot-on, and I felt he really invested in my success every step of the way.
I was skeptical about online courses, but this one completely changed my mind. It was easy to follow, packed with real-world applications, and surprisingly interactive. Before I knew it, I was certified and already applying my new skills at work!
The self-paced nature of Dr. Earwicker’s 40-hour basic mediation training was perfect for my busy lifestyle. I could dive into lessons after my kids went to bed and still get timely feedback. If you’re juggling multiple responsibilities, this course is definitely for you.
I needed a solid certification fast, but I also wanted real substance. This program delivered both. In just two weeks, I felt confident mediating conflicts at my law firm, and the feedback from Ben was invaluable for refining my technique.
Dr. Earwicker's 40-hour basic mediation training has been a game-changer for me, and it kick-started my mid-life career change. The role-play scenarios were interesting and useful, and I learned a lot of great skills that I use everyday in my private mediation services.
Complete Dr. Earwicker’s Online Mediation Course at your own speed.
Get direct support from Dr. Earwicker, multiple times in each module, throughout the course.
Stay current with the latest in Conflict Resolution Training and negotiation techniques. Utilize Dr. Earwicker’s innovative AI-assisted role-play scenarios for hands-on experience mediating.
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:
Yes! This course provides the foundational skills needed to start a mediation practice, including conflict resolution techniques, negotiation strategies, and ethical considerations. Many mediators begin by offering services independently or contracting with courts, businesses, or law firms. We also provide guidance on business development.
Yes! Dr. Earwicker's self-paced online training allows you to complete the course on your schedule from anywhere. The course includes video lectures, interactive exercises, and real-world case studies to ensure an engaging learning experience.
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.
Mediators work in court systems, private practice, corporations, HR departments, family law, and community dispute resolution. With this training, you can launch your own mediation business or contract with established mediation programs. Demand for mediation is growing as courts and businesses seek cost-effective conflict resolution methods.
While this is a self-paced course, you’ll receive direct, personal feedback from Dr. Earwicker in two or three assignments for each of the course's 10 modules. This allows you to engage with Dr. Earwicker at every stage of your course.
The course covers essential mediation skills, including: active listening, negotiation techniques, handling difficult conversations, neutrality and ethics, cultural competency, and mediation process stages (from opening statements to agreement drafting).
Dr. Earwicker's course stands out because it is designed for professionals looking to build a private practice, from government mediators to counselors and attorneys, and more. The course goes beyond basic mediation skills and includes real-world role-play scenarios to prepare you for success in private practice.
Call or Text Ben directly at (208) 440-5973
Dr. Earwicker’s Mediator Certification Online format allows you to study at your convenience. Get your mediation certificate in as few as 5 days, on your schedule:
