|ALL SECTIONS | ABOUT MEDIATION | Civil | Commercial | Community | Elder | Family | ODR | Public Policy | Workplace|
Subscribe to the Mediate.com NewsletterSign Up Now
A mediator or negotiator can attempt routinely to discover who are key tribal members, by asking standard questions during preparation documentation, telephone calls and private meetings with each of the “parties”. For example, these questions include:
Obviously, some disputants do not disclose to a mediator that they will need to convince influential outsiders about any outcome. They lie, or are embarrassed, or over-estimate their own influence over their constituents. At a later stage of preparation, or at the joint mediation meetings, when the mediator has earned further respect, (s)he may be able to locate the outsiders in the shadows, ever-present in spirit, though absent in the flesh, by more direct questions such as:
Despite all this tactful investigation, a mediator may not be told until the fateful request by one party to make a phone call at the “end” of the mediation. The mediator may meanwhile live with ignorance or suspicions. This mediator has been ambushed several times after a settlement has been reached, when one party blithely announces, “Of course, I will not be able to sign today. I have to talk to X first.”
Likewise, many parties who have assured everyone that they “have full authority to settle” have taken the mediated agreement back to their constituent organizations and been torn to shreds by bitterly disappointed hawks. The second case example illustrates this dynamic.
‘Facts’ of Dispute:
One pioneering group built a large church/temple (the ‘liberals’). More recent members of the temple (‘traditionalists’) disagreed over absence of headgear and use of chairs in the temple. Disagreements escalated to harsh words, punches, calling the police to the temple. Assault and defamation writs were issued. Subsidiary disputes arose over who was a ‘member’ eligible to vote; the validity of an hurried election; the use of temple funds by ‘liberals’ to pay lawyers; the history of which faction’s members had given more money to the temple; and plans to spend money on a church car park and extensions.
The two factions applied to the Supreme Court for declaratory orders on the validity of elections, appointment of a temporary administrator, and if necessary, sale of the temple. The judge gratefully referred the bulging court file to mandatory mediation.
Causes and stage of conflict:
Initially values (tradition versus modernity); then relationship and name-calling; then loss of trust, suspicion and stereotyping; deep intra-psychic hurts from the past; family tribes in background; data conflicts about “justice”, predicted judicial behaviour and the history of conversations and money; “matters of principle”; few listening skills.
With help of lawyers the mediator identified the four most influential ‘representatives’ from each faction; met four times for four hours; drafted problem solving questions; reported in writing after each session; used vigorous reframing; strong interruptions to keep the parties on track and constant mini-lectures on past-future and non-denigration.
The eight agreed: to six months ‘space’ with each faction supervising alternative Sunday services; to money being collected and kept in separate accounts; on an interim management committee on which none of the most conflicted persons would sit; to return and review in six months when people were calmer. However, this detailed written agreement was allegedly then vehemently opposed by both sets of constituents (the ‘absent tribes’).
The mediator then set up a meeting with the whole temple to explain process; and to praise the eight dispirited representatives publicly. The meeting was cancelled after rumours of bombing the meeting by hawks in each group were telephoned to the mediator by the concerned eight. (The case is still languishing in court lists).
If the outsider or tribal member is a professional adviser, such as a lawyer or accountant, it is especially problematic if they remain “outside” the negotiation meeting. Lawyers are often excluded due to expense, and sometimes due to busyness or poor diplomacy skills. (The writer regularly meets lawyers who suggest that they should “stay away” from the mediation until drafting time arrives, as they “have become part of the problem”.) However, their personal interests in clarity of drafting, closing legal loopholes, avoiding dissatisfied clients, preserving professional reputation, and avoiding professional negligence allegations, mean that they inevitably (and appropriately) will want consultation, time and modifications once the insiders reach agreement.
No doubt there are sometimes darker sides to the interests of a minority of outside professionals, including fee generation, “churning” the conflict or egotistical need for control. Whether legitimate or dark, these interests of professional advisers need to be identified, and tend to encourage adjournment of negotiations and mediations until they can be “present” in body or by telephone.
How to Manage Any Influential Outsiders?
If key tribal members are identified (or suspected) during the routine preparation, or at any subsequent time during a mediation, how many ways are there for a negotiator or mediator to respond to this information? Set out below are standard responses to add to the mediator’s toolbox.
All have advantages and disadvantages.
The first response to knowledge or suspicion about influential outsiders is to refuse to negotiate or mediate.
This refusal to negotiate may lead to further conflicts or litigation, subsequent lying about authority to settle, or the emergence of the influencers from the shadows.(2) Adjourn Until Authority Figures are “Present”
The second response follows normally from the first. That is, one or more disputants may refuse to negotiate or mediate on major questions, unless and until key authority figures are “present” in person or are available on the phone or teleconferencing facility during the mediation or negotiation.
In many conflicts, such brinkmanship is futile as those with persuasive or legal power are too many, too distant, too expensive or too busy to appear.
Nevertheless, many mediations and negotiations are organised creatively to enable:
The presence of numerous influential people creates constant logistical challenges of expense and co-ordinating calendars. However, once these logistical difficulties are overcome, they provide helpful pressures to “find a solution now that all of us are here”. One possible method to manage time is to encourage many people to attend, on the express condition that the number of speakers will be limited to those who are nominated representatives, or to those given the microphone or some other “talking symbol” by the mediator. This method has been used effectively in large town hall meetings between angry residents and local councils.
Nevertheless, this solution of “adjourn until …” will be opposed strongly by middle managers and family members who fear the presence of their own bosses or family during the mediation. These outside authorities may be resentful for the inconvenience of attending; critical of the disputant for “being unable to sort this out by yourself”; and dangerously judgmental of their own tribal representative if too many skeletons come out of the closet during the mediation.
The writer has been involved in several mediations where the presence of CEOs or patriarchal grandparents has eventually pressured the outcome, but such presence has been resisted strongly by their own tribal members, (middle managers, lawyers and adult offspring), who feared loss of face during frank discussions and accusations. Some successful business people are ashamed that their ageing wealthy parents continue to have such critical power over their own life decisions. One of the mediator’s tasks in those cases was to find strategies to save face for the squirming representative or offspring.
Additional opposition to this “adjourn until X can be present” option, will sometimes come from the other disputants. That is, one set of disputants objects to “interference” and “delays” due to the proposed presence of the other disputant’s “officious boss”, “nosey brother”, “pushy husband”, “aggressive union member” or “opinionated accountant”. These legitimate objections and perceptions can usually be reframed (“so you would like X to work alone/independently?” “So you are worried about the dynamics if X is present?”). The objector can then be challenged by questions such as “If Y does not attend, will X ever settle?” “How will you feel if X wants Y to check any deal you reach?” “How can you ensure that the brother/boss/accountant/wife gives an informed opinion, rather than an ignorant reaction?”
The writer as mediator standardly uses similar questions to persuade one disputant that (s)he should consent to and welcome the presence of an “appropriate” influential spouse, accountant, or wise friend to “help” another disputant. Despite sometimes initial resistance, the persuasion has always succeeded on the basis that it is “better to have a visible influence, than someone whiteanting in the background”. This exercise always involves a further task of trying to find “extra helpers” to equalize numbers present for each faction at the mediation/negotiation.
With a few notable exceptions, the presence of the outside influence has been essential, or at least helpful in order to find a resolution.
In some highly escalated family and church conflicts, the influential outsiders (eg new spouse; angry elder) have been made “present” only by the mediator having access to them by phone.Children as Powerful “Outside Influencers”
One common group of powerful influencers who are often not “present” at negotiations and mediations, are children. Parents have legal power to make decisions about their children but sometimes have limited persuasive power, particularly over teenagers in industrialized societies.
Some mediation procedures have been devised to “include” children by the symbolism of empty chairs; by the mediator acting as advocate for the children’s generalised interests; by the mediator interviewing the children alone before the joint sessions with the parents; by an advocate appearing on behalf of the children ; by an expert psychologist submitting a written report on behalf of the children.
(3) Carry on Regardless
The third response to the mediator’s suspicions or knowledge of key influencers, or absence of “complete authority to settle”, is to say nothing and continue the process.
Some mediators may decide that even opening the questions of “Do you both have authority to settle?” or “How to identify and manage influential outsiders?” is so inflammatory, complex and time-consuming that it is better not discussed. Arguably, the topic will remain safely buried, either because no substantive resolution is reached or recommended (so no telephone calls need to be made); or the settlement is within the “agent’s” range (again, so no telephone calls need to be made); or it is so routine for certain disputants (eg middle managers, some insurers) to make phone calls, that it is not necessary to discuss what is normal. Moreover, if a settlement is reached and approval is then sought from an outsider, and this procedural ambush causes offence to the other party, then in those (statistically few?) cases, the conflict can be “managed” at that stage. Why clumsily anticipate what may not turn into a problem?
Other mediators have seen many negotiations stumble and fail due to the influence of tribal members. These mediators may be reluctant to “carry on regardless” or “wait and see what happens” in relation to these hovering armchair critics.(4) Normalise
The fourth response to the perceived pressure from outsiders, is for the mediator to give one or more “normalising” speeches. The aim of these speeches is to attempt to convince one of the disputants that the need for outside ratification is “normal”; is not devious; is not normally part of a good cop-bad cop negotiation tactic (though it could be that!); that competent negotiators do not fuss over this procedural step; and that progress can be made despite the need for outside approval. For example:
“Jill, in my experience it is normal for middle managers in large businesses or government to seek approval for the agreement you hope to reach today. They cannot risk their jobs by settling without higher level approval. If you insist on them having full authority to settle, their easiest escape is to leave the decision to a judge; then they will avoid being blamed for the outcome.”
These kinds of speeches by the mediator may assist a disputant to persist with the negotiation/mediation, rather than prematurely choose option one – namely, refuse to negotiate.(5) Ask Ritualistic “Authority” Question
The fifth possible response to the mediator’s knowledge or suspicion that one or more of the disputants will need to consult an outsider before signing any settlement, is for the mediator to ask ritualistically, “do you have authority to settle this dispute?” This question can be asked in writing in the preparation documents required to be completed by each disputant. Alternatively, this question can be asked or re-asked at both private and joint meetings. Presumably, some mediators are hoping for a confident or mumbled “yes” as an answer.
The mumble or the body language may suggest a lie or more complex motives. A more precise and tactical answer could be, “Yes, I have complete authority to settle this dispute so long as the outcome is fair/reasonable/in the range. If it is an unusual settlement, or one out of the normal range, then obviously I will have to consult my superiors/constituents/family. I assume that you would have to do likewise if you were in my position.”
Whatever answer is given, it leaves the mediator with some unresolved tensions. A confident affirmative answer may well be a lie or a mask to complexity; a mumbled affirmative answer will raise suspicions; and a “correct” tactical and qualified affirmative may open a detailed discussion of the meaning of “reasonable”; and a negative answer may lead to option one – a refusal to negotiate.
The practice of a mediator or negotiator to ask this “authority” question ritualistically, may encourage attendance by “powerful”, or authorized people. However, affirmative answers definitely will not preclude telephone calls and adjournments in order to consult others as settlement approaches. This may lead to standard cries of “deception”; “liar”; “I told you they are not to be trusted”, which situation the mediator can attempt to manage via reframing and one of the twelve other responses in this article!
Nevertheless, the ritualistic authority question anecdotally is used commonly (and apparently effectively) in production-line evaluative mediations involving monetary claims against insurers. Repeat players know that the answer “yes” conceals normal and manageable complexity.
Conversely, in certain cultural groups the influence of community opinion is very strong. These cultures have sometimes been categorized as “high power distance” and “collective”. For example, extensive consultation is normally necessary when negotiating with most Malaysian, Arab, Aboriginal and Japanese organisations.
In such cultures, the question, “Do you have authority to settle?” is itself an absurdity and an embarrassing sign of ignorance on the part of the questioner. An affirmative answer may save face for the questioner, but will not reduce normal extensive consultation outside the negotiation room. It requires cultural expertise and careful planning to identify who the key influencers in the deciding community are and by what process are the “outsiders” to be consulted.(6) Insist on Written Authority to Settle Within Subjective Range or Objective Range of “Fairness”
The sixth possible response is for a mediator or negotiator to insist that some or all of the disputant(s) produce a written (and irrevocable) authority to settle. This written step may appear to provide more certainty than the ritualistic oral assurances set out in the previous response.
However, in reality, those who draft such written authorities know that they provide little certainty that the alleged agent will act upon the apparent authority. Why?
This is because an authority can be drafted in one of two ways – subjectively or objectively. A subjective written authority gives the agent the power to enter into such agreement as the agent believes is “reasonable”, “fair”, “appropriate” or “reflecting common commercial practices”. All these words leave the agent with such a broad discretion that if (s)he believes that the outcome is anything other than “advantageous”, (s)he may want to consult with the influential constituents anyhow (to protect his/her job or reputation or safety). That is, the representative’s broad “legal” authority is qualified by his/her certain knowledge that (s)he has limited “persuasive” authority.
An objective written authority supposedly gives the agent more certainty and less discretion. For example, “my sister is hereby given irrevocable authority by me to settle this dispute with X on my behalf for an amount not less than $400,000.”
However, asking for a written objective authority to be created and shown to a mediator has at least two problems which anecdotally makes such documents rare. First, by defining outcomes in dollar amounts, this restricts creativity in packaging solutions. Secondly, and more seriously, a written objective amount or range is a dangerous document to show to a mediator. This creates the potential for a key piece of information, namely the “reservation” or “walk-out” figure, to be leaked to the other side.
A wise negotiator, understanding the risk of information leaks in negotiation and mediation, would probably set out a false reservation figure (eg “not less than $600,000”) in the written authority (or refuse to write a specific authority). This falsely “authorised” figure still leaves confidential negotiation margins (advised orally) for the wise agent to work with. Similarly, it is common practice for insurers of defendants in tort cases (eg personal injury, medical negligence and contractual defects disputes), to assure plaintiffs that they “have authority to settle up to the limit of the claimed amount”. This ritualistic liturgy about “legal” authority, is of course silent about the representative’s “reasonable outcome” and “persuasive” authority.
Thus if a mediator ever receives a confidential written objective authority from one party, (s)he cannot confidently assure the other disputants that the document is of any relevance, or that telephone calls to influential outsiders will not be made.
Ironically, an experienced negotiator may develop the following practice even if pressured into giving a (false) written objective authority from his/her constituents. Upon settlement being imminent, (s)he will still insist on making a real or fictional lengthy phone call to his/her outside constituents. This lengthy charade aims to give the impression that the settlement was outside his/her permitted range, and that the opposition has a good outcome, so that their post-settlement regrets might be minimized.
Accordingly, it is not clear if and when subjective or objective written forms of authority will be helpful to modify the influence of outsiders on the stability of negotiations or mediations. Minimally, they may help some constituents to be more reluctant to renege if their representative recommends a particular outcome.(7) Agree to Use Best Endeavours
The seventh possible response to the mediator’s (or negotiator’s) knowledge or suspicion that one or more of the disputants will need to consult with influential outsiders before settling is to negotiate for the agent to use his/her “best endeavours” to sell the outcome to the constituents.
This option may seem weak. However, the writer and other colleagues have used it successfully on a variety of occasions.
This response anticipates a standard type of conversation between the negotiator (N) and his/her constituents (C) after a mediation or negotiation.
C : “How did the mediation go last night?
N : “Well, we reached agreement. It is not all that you hoped for.”
C : “What did you agree to??”
N : “Well, there are four basic provisions as follows ……”
C : “That doesn’t seem very fair. Why did we get so little? Are you happy with that outcome?
N : “Well, I am not happy, but in the circumstances ……”
C : “If you are not happy, why did you agree to it?”
N : “Well, it was the best I(we) could do. The mediator put us under some pressure to be realistic”
C : “We will need some time to reconsider this. It is very disappointing. I certainly will not sign/ratify. They must be laughing about ……”
This standard disclose, disappoint, defend and blame language is clearly foreseeable between some agents and tribes. Many representatives at mediations are in an unenviable position of martyrdom by the awaiting tribal hawks.
This predictable pattern may encourage a wary mediator to go through the following steps. First, ask each negotiator (privately and perhaps publicly) “What if you reach an agreement which you believe is satisfactory but which disappoints your constituents/members/family?” Secondly, the mediator asks “What if the post-settlement conversation with your constituents is as follows…” (mimics the disclose, disappoint, defend and blame language)? In the writer’s experience, the representatives tend to nod glumly.
Thirdly, the mediator asks, “Would you (each) be prepared to return to your club/constituents and highly recommend the outcome you reach (tomorrow, next week, next month etc)? There is no point working hard for an agreement if you then allow that routine and undermining conversation to occur. You might as well abandon the mediation now.”
The negotiators can usually be persuaded to agree orally or in writing as follows:
“If we reach an agreement after working hard at the mediation through a range of possibilities, we will not report back to X in a half-hearted fashion. We will unanimously report back to X about the issues, the options and will unanimously and enthusiastically recommend the outcome we reach as satisfactory, workable, and the best option available. We will endeavour to ‘sell’ the outcome to our constituents.”
The early discussion of this option may normalise the forthcoming dynamics, and give the representatives time to prepare for, and courage to confront, the inevitable group of armchair critics.
Of course, this response, like all the responses, is far from infallible. The writer has used it very successfully with groups of representatives. Conversely, in a dispute involving division of an inheritance between two family factions, the writer as mediator isolated one key representative from each faction in a room and worked with them until a recommended outcome was reached. Both agreed to sell that outcome strongly to the waiting camps. One did, while the other immediately recanted when faced with his angry relatives: better to conform than to confront.(8) Opinion From an Evaluative Mediator or Expert
Following the previous response, there is an eighth method to help the representative save face, job, and safety; and to create doubt for any angry hawks lurking among the constituents.
This involves hiring an evaluative mediator who is respected in the field in which the disputants are disputing; and/or bringing to the mediation or negotiation an expert in the field as an observer and commentator.
At the end of the mediation or negotiation, the expert and/or evaluative mediator then writes a note on his/her letterhead for the middle managers or agents to take back to head office or to their constituents. The note states shortly that not only have the representatives communicated skillfully, but also they have reached an outcome which is “within the range”; or the “best of the range of outcomes available”. These letters or clauses may assist the middle manager representatives to “sell” the deal back at home, and to minimise danger to their own jobs, safety and reputations.
Even without an opinion in writing, the use of a respected expert in the field of dispute enables the parties to fend off their bush lawyer tribes and relatives by saying that “the mediator has been working in this field for over 30 years and (s)he said that this is the kind of split-the-difference mid-range order that a court usually makes”.
The writer often includes in settlement documents a preamble, introduction or notation, which briefly sets out what happened at the mediation, indirectly praises the representatives for their persistence and skills, and for avoiding certain risks of ongoing conflict. One aim of this written version of history is to assist the weary representatives against hostile hovering hawks.(9) Consult with the Outside Authority/Influence Before Negotiation
The ninth possible response of a negotiator or mediator to the real or suspected existence of an influential outsider is to consult with that outsider before the joint mediation sessions begin.
The writer has used this approach for over a decade in the majority of disputes where he acts as a mediator.
The process now has a routine and is as follows:
In the writer’s experience this routine process, though sometimes expensive and exhausting, has provided the following benefits:
This standard preparation process is one where a mediator can clearly “add-value” to an unassisted negotiation. It is sometimes considered to be subversive and inflammatory (though may be tactically effective) for a negotiator alone to try to have confidential conversations with the tribal members of the “opposing” negotiator.
(10) Consult with Outside Influences Before the Negotiation and Arrange Decision-Making Process
There is a tenth important response which every mediator and negotiator needs to have in his/her conceptual and linguistic repertoire when outside tribal members are obvious or unearthed. This response is to insist upon and organize a “decision rule” within each group of constituents.
There is a variety of methods by which groups can decide to make decisions.
In decision-making groups, the dominant view is to assume that majority rules and at some point take a vote of all members, assuming that any settlement option that receives more than 50 percent of the votes will be the one adopted. Obviously, this is not the only option. Groups can make decisions by dictatorship (one person decides), oligarchy (a small but dominant minority coalition decides), simple majority (one more person than half the group), two-thirds majority, broad consensus (most of the group agrees, and those who dissent agree not to protest or raise objections, and true unanimity (everyone agrees). Understanding what decision rule a group will use before deliberations begin will also significantly affect the group process. For example, if a simple majority will make the decision in a five-person group, then only three people need to agree. Thus, any three people can get together and form a coalition – during the meeting or even prior to the meeting. In contrast, if the rule will be consensus and unanimity, then the group must meet and work hard enough to assure that all parties’ interests are raised, discussed, and incorporated into the group decision.
That is, during preparation for mediation between parties, the mediator facilitates discussions within each of the parties’ tribes on the key question – “By what process will the group make a decision?”
For example, a mediator can typically go through the following steps:
“No group can agree unanimously on what day of the week it is; so don’t come back to me with a unanimity rule.”
“I am also not willing to accept a ‘wait and see’ or ‘we will work it out later’ voting process. That is a recipe for failure. We all know that some of you will be disappointed with the outcome, and some will be able to live with that same outcome.”
“If you wish, I can meet with each group to develop an answer to this key question ‘How will we make a decision as a group at the end of the mediation?’”
“If you wish, I can tell you a range of ways other groups like you have made decisions. You can add those to your list of possibilities before deciding.”
Case Study -- Face Saving Decision Rule
A mediation occurred between two factions of a church. Both wanted to acquire the church property and exclude the other for a host of alleged miscommunications, misdemeanours and personality defects. Vitriolic litigation had commenced to appoint a trustee for sale of the church.
The two factions were represented at the mediation by 7 and 8 elders respectively. One lawyer took the mediator aside and said that his group of seven could never agree to any outcome as two (“hawks”) of the seven had paid all his legal fees; were deeply hurt; and wanted victory as a “matter of principle”.
The grateful mediator sent each faction away to determine “How to make a decision at the end of the mediation?” The seven decided upon 5 to 2 majority decision; the 8 upon a 5 to 3 majority decision. This was publicly announced.
Eight hours later, a group of two from each faction reached a recommended outcome which they agreed to “sell” hard to their colleagues. They succeeded. The faction of 7 predictably voted 5 to 2 in favour of the recommended package with the two hawks dissenting.
The pre-existing decision rule then enabled both hawks to make speeches that they did not like the outcome, but they were men of honour, and would comply with the agreed majority vote by their friends.
JH Wade, Representing Clients at Mediation and Negotiation, Bond University DRC, 2000, pp.118-124. See J.R. Johnston and L.E.G. Campbell, Impasses of Divorce (New York: Free Press, 1988) ch 2, “Unholy Alliances and Tribal Warfare” suggests that pressure from relatives is one of the three primary causes for sustaining conflict between highly-conflicted couples.
See R.J. Lewicki, D.M. Saunders, and J.W. Minton, Negotiation (New York: Mc Graw-Hill, 2003) ch 11 for a summary of G. Hofstede, Culture and Organisations: Software of the Mind (London: McGraw-Hill, 1991).
See J.Z. Rubin & S.H. Kim, Social Conflict-Escalation, Stalemate and Settlement (New York: McGraw-Hill, 2003) for an analysis of changes to social structures and psychology which tend to perpetuate conflict.
The writer has labeled these “The Five Humble Hypotheses” and suggests that every mediator and negotiator should consciously develop these hypotheses in writing before commencing any mediation or negotiation.
In one industrial dispute mediated by the writer, there were 29 constituent groups “in the shadows” behind the actual seventeen “representatives” at the ultimate negotiation table. In hindsight, even though the dispute settled, the intake process with so many factions was too exhausting for the aging mediator.
John Wade is an Emeritus Professor of Law at Bond University and a practicing lawyer. John is a nationally and internationally acclaimed expert in dispute resolution, legal education and family law. For the last 40 years he has taught at two Australian, three Canadian, one French and four US law schools. He has led over 250 courses in mediation and negotiation for law firms, government and industry in UK, Hong Kong, NZ, USA, Indonesia and Australia. John was one of the founding editors of the Legal Education Review and pioneered the postgraduate teaching of educational methods and theory to new law teachers. He has published over 100 books and refereed journal articles.
Mediation practice. Since 1987, John has mediated hundreds of disputes in areas of family property, organisational, succession, insurance, and child disputes. He has developed a specialty in family property conflicts. In 2011, John was named by the International Bar Association as one of the top nine commercial mediators in Australia. In 2013, John moved to Vancouver, Canada with his family, and continues his mediation practice and teaching there.
|Free subscription to comments on this article||Add Brief Comment|