Q:
What is Negotiation?
A: There are two principle negotiation theories and strategic approaches
to negotiation:
- competitive or
positional negotiation;
- integrative or
problem-solving or interest-based negotiation.
Distinguish
Strategic Approach from Personality
While
there may be some correlation between negotiation approaches and personality
style, the two do not necessarily go together. For example, a competitive
negotiator may be very "pleasant" to work with in terms of demeanor,
but utilize extremely competitive tactics. In fact, a negotiator's pleasantries
may themselves be part of an overall manipulative approach! A problem-solving
negotiator may, on the other hand, be rather ornery in terms of their
personality, yet effectively utilize interest-based, problem-solving strategies
in negotiation.
The Best Negotiators Will Have Both Sets of Skills
It
is also important to appreciate that the most effective negotiators will have a
wide array of negotiation skills, both competitive and problem-solving, and
will effectively mix and match these approaches depending upon what the
negotiator believes will work best with a particular "negotiating
partner" depending on the specific issue being negotiated and depending on
the nature of the overall negotiating relationship (one-time transaction or
continuing relations).
Strategies
to Create Value and Claim Value
Another
view of negotiation is that certain strategies and behaviors are intended to
"create value" (integrative approaches) whereas other strategies and
behaviors are intended to "claim value" (be that by competition or
principle).
Dispute
Negotiation and Transactional Negotiation
Also
notice that negotiations may be divided into two types:
- dispute
negotiation, focused on resolving past facts; and
- Transaction
negotiation, focused on reaching agreement for the future.
While
it is often helpful to appreciate this difference between dispute negotiation
and transaction negotiation, it is also beneficial to appreciate that many
negotiation situations involve the resolution of both past issues as well as
planning future relations.
The
Competitive Approach
Competitive
negotiation strategy is, essentially, a manipulative approach designed to
intimidate the other party to lose confidence in their own case and to accept
the competitor's demands. This approach is characterized by the following:
- High opening
demands;
- Threats, Tension
and Pressure;
- Stretching the
facts;
- Sticking to
positions;
- Being tight
lipped;
- Want to outdo,
outmaneuver the other side; and
- Want clear victory.
When
a competitive negotiator is asked how they will know that they have reached a
good agreement, they may reply that the agreement is "better than
fair."
Assumptions
of the Competitive Approach
- There are
certain assumptions, a world view really, that lie behind the competitive
approach to negotiation. This "distributive" world view includes
the following assumptions: Negotiation is the division of limited
resources;
- One side's gain
is the other's side's loss; and
- A deal today
will not materially affect choices available tomorrow.
Risks
of the Competitive Approach
While
competitive negotiation tactics are often effective in "claiming"
already defined value, there are also certain risks to competitive negotiation.
Foremost among these risks are damage to the negotiating relationship and a
lessened overall likelihood of reaching agreement. Here is a list of the
disadvantages of the competitive style:
- Confrontation
leads to rigidity;
- There is limited
analysis of merits of dispute and relevant criteria for resolving
issues;There is limited development of solution alternatives;
- It is hard to
predict the outcome of the competitive approach or control the process;
- Competitors are
generally blind to joint gains;
- Competitors
threaten their future relations; and
- Competitors are
more likely to have impasse and increased costs.
The
Integrative Approach
The
integrative, collaborative or problem-solving approach to negotiation has been
described as "enlightened self-interest," rather than the
"egocentric variety." This approach consists of joint
problem-solving, where gains are not necessarily viewed as at the expense of
the other party.
Assumptions
of the Integrative Approach
As
one might expect, there is a different world view behind the integrative
approach to negotiation. The primary assumptions of the integrative approach
are the following:
- Some common
interests exist between parties;
- Negotiation is
benefited by a full discussion of each participant's perspective and
interests; and
- We live in an
integrated and complex world and our problems can be best resolved through
application of our best intelligence and creativity.
Risks
of the Integrative Approach
Risks
of the integrative approach are based upon the common sense observation that
"it takes two to collaborate." If one party is unwilling to
participate in integrative, problem solving negotiation, the more collaborative
negotiator may be at risk in the following ways:
- The negotiator
will be forced to either "give in" or adopt a competitive
stance;
- The negotiator
may experience a failure if they do not reach agreement; and
- The negotiator
is somewhat at risk in honestly disclosing information if that is not
reciprocated.
Principled
Negotiation
In
their book, Getting to Yes, Fisher and Ury set forth their concept of
"Principled Negotiation." Here is a brief summary of the main points
of principled negotiation:
Separate
the People from the Problem
Fisher
and Ury suggest that we are all people first -- that there are always
substantive and relational issues in negotiation and mediation. The authors
describe means of dealing with relational issues, including considering each
party's perception (for example by reversing roles); seeking to make
negotiation proposals consistent with the other party's interests; making
emotions explicit and legitimate; and through active listening.
Focus
on Interests, Not Positions
Positions
may be thought of as one dimensional points in a space of infinite possible
solutions. Positions are symbolic representations of a participant's underlying
interests. To find out interests, you may ask questions like: "What is
motivating you here?" "What are you trying to satisfy" or
"What would you like to accomplish?" You may also ask: "If you
had what you are asking for (your position), what would that experientially get
you - what interests would that satisfy?"
In
negotiation, there are multiple, shared, compatible, and conflicting interests.
Identifying shared and compatible interests as "common ground" or
"points of agreement" is helpful in establishing a foundation for
additional negotiation discussions. Principles can often be extrapolated from
"points of agreement" to resolve other issues. Also note that
focusing on interests tends to direct the discussion to the present and future,
and away from the difficulties of the past. If we have learned anything about
the past, it is that "we can not change it." The past may help us to
identify problems needing solution, but, other than that, it does not tend to
yield the best solutions for the future.
Invent
Options for Mutual Gain
Before
seeking to reach agreement on solutions for the future, Fisher and Ury suggest
that multiple solution options be developed prior to evaluation of those
options. The typical way of doing this is called brainstorming. In
brainstorming, the parties, with or without the mediator's participation,
generate many possible solution before deciding which of those best fulfill the
parties' joint interests. In developing options, parties look for mutual gains.
Select
from Among Options by Using Objective Criteria
Using
objective criteria (standards independent of the will of any party) is where
the label "principled negotiation" comes from. Fisher and Ury suggest
that solution selection be done according to concepts, standards or principles
that the parties believe in and are not under the control of any single party.
Fisher and Ury recommend that selections be based upon such objective criteria
as precedent, tradition, a course of dealing, outside recommendations, or the
flip of a coin.
What
if They are More Powerful? - Developing a BATNA
In
the event that the other party has some negotiating advantage, Fisher and Ury
suggest that the answer is to improve the quality of your "best
alternative to a negotiated agreement" (your BATNA). For example, if you
are negotiating for a job and want to make a case for a higher wage, you
improve your negotiating power by having another job offer available, or at
least as a possibility.
What
if They Won't Play or Use Dirty Tricks?
Fisher
and Ury's answer to the resistant competitive negotiator is to
"insist" on principled negotiation in a way that is most acceptable
to the competitor. The principled negotiator might ask about the competitor's
concerns, show he or she understands these concerns, and, in return, ask the
competitor to recognize all concerns. Following the exploration of all
interests, Fisher and Ury suggest inducing the competitive negotiator to
brainstorm options and to think in terms of objective criteria for
decision-making. Another way of thinking about encouraging principled or
integrative bargaining is to think in terms of matching, pacing, leading and
modeling. To get a negotiator to shift orientations, it is critical that they
first experience themselves as fully heard in terms of content, intensity and
emotion. By so matching and pacing with a negotiator (asking a few clarifying
questions), the negotiator will become more open to your lead and modeling of
productive means of negotiating. Negotiation Power
Negotiation
power
can
be defined as "the ability of the negotiator to influence the behavior of
another. Commentators have observed a variety of aspects and qualities of
negotiation power. It is important for the mediator to take note of these
various aspects and qualities of negotiating power as a means of assisting each
negotiating party to be at his or her best in representing his or her interests
in mediation. Here are a number of aspects and qualities of negotiating power
that have been identified:
- Negotiating
power is relative between the parties;
- Negotiating
power changes over time;
- Negotiating
power is always limited;
- Negotiating
power can be either real or apparent;
- The exercise of
negotiation power has both benefits and costs;
- Negotiating
power relates to the ability to punish or benefit;
- Negotiating
power is enhanced by legal support, personal knowledge, skill, resources
and hard work;
- Negotiating
power is increased by the ability to endure uncertainty and by commitment;
- Negotiating
power is enhanced by a good negotiating relationship;
- Negotiating
power depends on the perceived BATNA; and
- Negotiating
power exists to the extent that it is accepted
Overall
Problem-Solving Negotiation Structure
As
an overall model for effective problem-solving negotiation, please consider the
following:
- Informed Consent
as to Process
(the process is always negotiable)
- Sharing
Perspectives
(separate relational issues from substantive issues. Discuss both, just
separately.)
- Remember the
Common Ground (common
interests, interdependence and easy points of agreement)
- Establish a
Problem-Solving Agenda (questions seeking solutions:
"How can we best . . .?" or "What is the best way for us to
. . .?")
- Identify Desired
Information and Documentation Clarify Desired Outcomes, Interests and
Positive Intentions Develop Options (develop options based upon
outcomes, interests and positive intentions)
- Select from
Options (Easy
agreements and package deals)
- Integration and
Finalization
(Any possible improvement? What else needs to be done?)
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top
Q: What is mediation?
A: Facilitated Communications for Agreement or Facilitated Negotiation
Central to mediation is the concept
of "informed consent." So long as participants understand the nature
of a contemplated mediation process and effectively consent to participate in
the described process, virtually any mediation process is possible and
appropriate. In terms of generally describing the mediation process, the
following concepts may be helpful.
Qualities:
Voluntary
You
can end the process at any time for any reason, or no reason. If you are
thinking of leaving, you are encouraged you to speak up and let the mediator
know why. The reasons that you are thinking of leaving can become conditions
for your continued participation. For example, if you are thinking of leaving
because you do not feel heard, presumably you would continue in mediation if
you felt heard.
Collaborative
You are encouraged to work together to solve your problem(s) and to reach what
you perceive to be your fairest and most constructive agreement.
Controlled
You have complete decision-making power. Each of you has a veto over each and
every provision of any mediated agreement. Nothing can be imposed on you.
Confidential
Mediation is confidential, to the extent you desire, be that by statute,
contract, rules of evidence or privilege. Mediation discussions and all
materials developed for a mediation are not admissible in any subsequent court
or contested proceedings, except for a finalized and signed mediated agreement
for enforcement purposes.
Informed
The mediation process offers a full opportunity to obtain and incorporate legal
and other expert information and advice. Individual or mutual experts can be
retained. Obtained expert information can be designated as either confidential
to the mediation or, if you desire, as admissible in any subsequent contested
proceeding. Expert advice is never determinative in mediation. You, as parties,
always retain decision-making power. Mediators are bound to encourage parties
to obtain legal counsel and to have any mediated agreement involving legal
issues reviewed by independent legal counsel prior to signing. Whether legal
advice is sought is, ultimately, a decision of each participant.
Impartial,
Neutral, Balanced and Safe
The mediator has an equal and balanced responsibility to assist each mediating
party and cannot favor the interests of any one party over another, nor should
the mediator favor a particular result in the mediation. The mediator's role is
to ensure that parties reach agreements in a voluntarily and informed manner,
and not as a result of coercion or intimidation. If you ever feel that the
mediator is favoring one party over another, or any particular result over
another, or if you should ever feel intimidated or otherwise unsafe in
mediation, speak up. The mediation should not continue unless you come to be
satisfied in all of these regards.
Self-Responsible
and Satisfying
Based upon having actively resolved your own conflict, participant
satisfaction, likelihood of compliance and self-esteem are found by research to
be elevated through mediation.
A: People in disputes
who are considering using mediation as a way to resolve their differences often
want to know what the process offers. While mediation can not guarantee
specific results, there are trends that are characteristic of mediation. Below
is a list of some of the benefits of mediation, broadly considered. Mediation generally
produces or promotes:
Economical
Decisions
Mediation
is generally less expensive when contrasted to the expense of litigation or
other forms of fighting.
Rapid
Settlements
In
an era when it may take as long as a year to get a court date, and multiple
years if a case is appealed, the mediation alternative often provides a more
timely way of resolving disputes. When parties want to get on with business or
their lives, mediation may be desirable as a means of producing rapid results.
Mutually
Satisfactory Outcomes
Parties are generally more satisfied with solutions that have been mutually
agreed upon, as opposed to solutions that are imposed by a third party
decision-maker.
High
Rate of Compliance
Parties who have reached their own agreement in mediation are also generally
more likely to follow through and comply with its terms than those whose
resolution has been imposed by a third party decision-maker.
Comprehensive
and Customized Agreements
Mediated
settlements are able to address both legal and extralegal issues. Mediated
agreements often cover procedural and psychological issues that are not
necessarily susceptible to legal determination. The parties can tailor their
settlement to their particular situation.
Greater
Degree of Control and Predictability of Outcome
Parties who negotiate their own settlements have more control over the outcome
of their dispute. Gains and losses are more predictable in a mediated
settlement than they would be if a case is arbitrated or adjudicated.
Personal
Empowerment
People who negotiate their own settlements often feel more powerful than those
who use surrogate advocates, such as lawyers, to represent them. Mediation
negotiations can provide a forum for learning about and exercising personal
power or influence.
Preservation
of an Ongoing Relationship or Termination of a Relationship in a More Amicable
Way
Many disputes occur in the context of relationships that will continue over
future years. A mediated settlement that addresses all parties' interests can
often preserve a working relationship in ways that would not be possible in a
win/lose decision-making procedure. Mediation can also make the termination of
a relationship more amicable.
Workable
and Implementable Decisions
Parties
who mediate their differences are able to attend to the fine details of
implementation. Negotiated or mediated agreements can include specially
tailored procedures for how the decisions will be carried out. This fact often
enhances the likelihood that parties will actually comply with the terms of the
settlement.
Agreements
that are Better than Simple Compromises or Win/Lose Outcomes
Interest-based mediated negotiations can result in settlements that are more satisfactory
to all parties than simple compromise decisions.
Decisions
that Hold Up Over Time
Mediated settlements tend to hold up over time, and if a later dispute results,
the parties are more likely to utilize a cooperative forum of problem-solving
to resolve their differences than to pursue an adversarial approach.
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Q: What is the role of the mediator?
A: The mediator's ultimate role is to do anything and everything
necessary to assist parties to reach agreement. In serving this ultimate end,
the mediator may take on any or all of the following roles:
Convener
The mediator may assist in contacting the other party(ies) to arrange for an
introductory meeting.
Educator
The mediator educates the parties about the mediation process, other conflict
resolution alternatives, issues that are typically addressed, options and
principles that may be considered, research, court standards, etc.
Communication
Facilitator
The mediator seeks to ensure that each party is fully heard in the mediation
process.
Translator
When necessary, the mediator can help by rephrasing or reframing communications
so that they are better understood and received.
Questioner
and Clarifier
The mediator probes issues and confirms understandings to ensure that the
participants and the mediator have a full understanding.
Process
Advisor
The mediator comes to be trusted to suggest procedures for making progress in
mediation discussions, which may include caucus meetings, consultation with
outside legal counsel and consultation with substantive experts.
Angel
of Realities
The mediator may exercise his or her discretion to play devil's advocate with
one or both parties as to the practicality of solutions they are considering or
the extent to which certain options are consistent with participants' stated
goals, interests and positive intentions.
Catalyst
By
offering options for considerations, stimulating new perspectives and offering
reference points for consideration, mediator serves as a stimulant for the
parties reaching agreement.
Responsible
Detail Person
The mediator manages and keeps track of all necessary information, writes up
the parties' agreement, and may assist the parties to implement their
agreement.
A: Arbitration is an
adversarial system of justice designed to present a disputed case to a neutral
and impartial third party for decision. It is very much like the adjudicatory
(court) process, but a bit less formal. Arbitration is, however, even more
binding than a court decision in that, in arbitration, you give up our rights
to appeal in favor of getting the matter resolved.
Standard
Arbitration Clauses
Parties
can provide for arbitration of future disputes by inserting the following
clause into their contracts:
Any
controversy or claim arising out of or relating to this contract, or the breach
thereof, shall be settled by arbitration administered by a mutually acceptable
arbitrator, under the rules of the American Arbitration Association. The award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof.
Arbitration
of existing disputes may be accomplished by use of the following:
We,
the undersigned parties, hereby agree to submit to arbitration administered by
a mutually acceptable arbitrator, under the rules of the American Arbitration
Association. We further agree that the above controversy be submitted to
an(one) (three) arbitrator(s). We further agree that we will faithfully observe
this agreement and the rules, that we will abide by and perform any award
rendered by the arbitrator(s), and that a judgment of any court having
jurisdiction may be entered on the award.
The
arbitration, unless the matter otherwise first settles, will be concluded with
the transmittal of the award. Although there is voluntary compliance with the majority
of awards, judgment on the award can be entered in a court having appropriate
jurisdiction if necessary.
A: Litigation involves
either hiring an attorney or prosecuting a legal case yourself in court.
Litigation begins with the filing of a complaint or petition and involves
discovery, motions, a possible trail and, if desired, at least two rounds of
appeal.
Litigation
may be a preferred alternative when nothing else seems like it will work. The
problems with litigation include that it is time consuming, costly and very
high stress. If one side "wins" big, then that decision may well be
appealed or there may be problems with enforcement.
All
of this being said, if you can afford a good attorney and if you need the clout
of the court to catch the other side's attention and/or give you a meaningful
chance of true relief, then litigation and the courts may be for you.
Q: What is Collaborative Law?
A:
The
essence of "Collaborative Law" is the shared belief of the
participants that it is in the best interests of parties to commit themselves
to resolving their differences with minimal conflict and no litigation. They
seek to adopt a conflict resolution process that does not rely on a Court
imposed resolution. The process does rely, however, on an atmosphere of
honesty, cooperation, integrity and professionalism geared toward the future
well being of the parties.
The
Adversary System
Law school training and the real world attorney work experience combine in a
well established and powerful institutionalization of the
adversarial-representative model of conflict resolution. While it is not the
only model for negotiating and resolving issues, it is the one which becomes
ingrained in anyone who works in a litigation system. Most attorneys who
regularly handle litigation work, fantasized, in the days before being admitted
to practice, about standing at the bar of justice making an impassioned and
eloquent argument which wins the case or surgically dissecting a hostile
witness with a brilliant cross-examination. The daily grist of the litigator's
mill, however, is the stress and frustration of trying to achieve the client's
objectives against the impediments and opposition of the parties on the other
side of the case.
The
costs of this process are usually observed as being both outrageously high and
inevitable. Both are true statements about the adversarial model. What is also
true is that this model is ill-suited for the purposes of resolving family law
conflicts. Rather than assuming the conflict must adapt to the traditional
adversarial litigation model, the collaborative approach is based on the idea
that the process should adapt to the actual needs of the parties in conflict in
reaching agreement. In the traditional competitive approach, where the parties
objectives or strategies collide, it is assumed that the only way to move past,
through, around or over the opposition, is to employ the power of the law-based
procedures to make something happen. In the face of opposition from the other
side, a lawyer looks to the power of the process and often overlooks the
reverberating impact that process will have on the daily lives of the clients
and their children. Furthermore, this power-based, competitive approach
nurtures continued resistance as the participants have little or no reason to
view the other side as anything but a threat and something to fear.
Collaborative
Negotiating
The collaborative approach is both pragmatic and grounded in its focus on the
needs of the parties. Initially, those needs fall into two categories: process
needs and outcome needs. The process needs are determined by accepting the
party in the emotional state in which they enter the process. That person may
be experiencing a wide range of emotions such as, anger, hurt, distrust,
bitterness, guilt and grief. These emotions may come with a wide range of
personality characteristics such as, intelligent, unsophisticated, analytical,
visual, needy or codependent. A good process begins by accepting the
participant as who he or she is at the outset. The outcome needs describe the
desired goals and objectives of the party which will allow that person to feel
the issues are resolved. As we will see, these outcome needs are developed by
analyzing the interests of the party and moving beyond the stated positions
which have sustained the conflict.
The
core of the collaborative process is to facilitate the making of agreements. To
be effective in this role, it is necessary to make a mental shift in the
mindset that one brings to viewing both the nature of the conflict and the
elements inherent in the personalities, characteristics and resources of the
parties.
Q: What if I want to know more about
Mediation?
A: Please be sure to
visit the following Sections of Mediate.com:
Q: What If I want to be a mediator?
Before
Mediate.com, Jim founded The Mediation Center in Eugene, Oregon in 1983 and
served as Executive Director of the Academy of Family Mediators (AFM) from 1987
to 1993. Jim was also the first President and Executive Director of the
Oregon Mediation Association (1985-86). Jim's undergraduate degree is in
in psychology from Stanford University and his law degree is from the
University of Oregon.Jim has received the following awards: The Oregon
Mediation Association's 2003 Award for Excellence; The Oregon State Bar's
2006 Sidney Lezak Award of Excellence; The Association for Conflict
Resolution (ACR) 2007 John Haynes Distinguished Mediator Award;
and The 2012 Academy of Professional Family Mediators
(APFM) "Getting To Yes" Award.
