Construction Claims: The Advantage of Negotiating for Interests Over Positions

This article is written by Paul Njonga, MBA MCIOB

Navigating the Terrain of Construction Claims: A Shift in Strategy

The art of negotiation is central in the complex and often contentious world of construction claims. But are we navigating these waters with the right compass? Traditional negotiation often focuses on positions - firm stances or demands that parties bring to the table. However, a shift towards negotiating for interests, the underlying reasons behind these positions, could be the key to more fruitful and less adversarial resolutions.

Positions vs. Interests: Understanding the Difference

Imagine a construction project delay dispute. One party's position might be a strict adherence to the original timeline, while the other's is an extension due to unforeseen circumstances. These are positions - the What of negotiation. Interests, on the other hand, are the why. In this case, interests might include the first party's need to maintain a reputation for timely deliveries and the second's concern for quality work under unforeseen constraints.

The Benefits of Focusing on Interests

1. Fosters Mutual Understanding: By focusing on interests, parties gain a deeper understanding of each other's motivations and constraints. This understanding can transform a confrontational negotiation into a problem-solving dialogue.
2. Encourages Creative Solutions: When negotiations are anchored in interests rather than rigid positions, it opens the door to creative problem-solving. Parties can explore options that may not have been considered when solely focused on their initial demands.
3. Reduces Conflict and Tension: Interest-based negotiation can reduce the adversarial nature of claim disputes. Understanding the 'why' behind the 'what' helps in depersonalizing the conflict, making it easier to reach a compromise.
4. Builds Stronger Relationships: Negotiating with an interest-based approach can lead to solutions that satisfy all parties, fostering goodwill and stronger professional relationships, which are invaluable in the construction industry.
5. Leads to More Sustainable Agreements: Agreements reached through interest-based negotiation are often more sustainable as they address the core needs and concerns of all parties. This reduces the likelihood of future disputes and the need for renegotiation.

How to Shift to Interest-Based Negotiation

• Open Communication: Encourage open dialogue where parties feel comfortable sharing their true interests and concerns.
• Empathy and Active Listening: Practice empathy and active listening to understand the underlying interests of the other party.
• Focus on Problem-Solving: Shift the mindset from winning a dispute to solving a problem together.
• Flexibility and Creativity: Be flexible and willing to explore creative solutions that might satisfy the interests of all parties involved.

Conclusion – A Path to Better Outcomes

In the dynamic landscape of construction claims, shifting from position-based to interest-based negotiation is not just a change in technique; it's a change in mindset. It's about digging deeper, understanding more, and collaborating better. This approach can lead to more effective, lasting solutions that benefit all parties, paving the way for smoother project completion and healthier professional relationships.

Remember in the context of negotiations, positions are egotistic, while interests are altruistic.

So, the next time you find yourself at the negotiation table, ask yourself: "Am I negotiating for a position, or am I negotiating for an interest?" The answer might just change the course of your negotiation.