The author is vice president of O'Brien-Kreitzberg in New York City and heads its construction and engineering dispute resolution practice. He is a negotiation facilitator, an AAA arbitrator and mediator, and is on the board of directors of the Construction Management Association of America. He wishes to express his appreciation to Sharon Radhuber for her valuable assistance in the preparation of th is article.
Although a negotiation is often described as akin to a war- there is always a winner and a loser- it is more analogous to a game of chess. In chess a draw is possible: this is also the case with a negotiation. But what is most true about negotiating is that the parties aren't always able to communicate their positions effectively. This usually results in the parties becoming adversaries, as each has something to gain and something to lose. Often the parties then resort to using an alternative dispute resolution (ADR) technique in which someone else makes the decisions.