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Negotiation and Mediation Concepts and Terminology

by John Wade
September 2000

This article has been reproduced with permission of the Bond University Dispute Resolution Newsletter September 1999, Vol 2. Email drc@bond.edu.au to receive future newsletters. For past Bond newsletters, mediators, courses, publications, see website.

John Wade
  1. High/soft; low/soft is a culturally common way to begin negotiations by offering a solution which is considerably outside the range of expected eventual objective solutions. (eg "I want at least $1 million"; "we will pay you $1000 to go away"; "I want an abject written apology").
  2. Reasonable firm is a less common method of beginning negotiations. The speaker gives a long explanation how (s)he used objective criteria from several reliable sources to calculate an offer; ("reasonable") warns that (s)he will not be able to move off this offer ("firm"); then eventually makes the offer.
  3. "Adjustive dissonance" is the phenomena whereby people adjust to loss at different rates. For example, one is in shock/anger/denial at the loss of a farm; child; spouse; health, while the other has accepted the loss and "wants to get on with his/her life". Outwardly, the disputants are negotiating about money; but really, they are miscommunicating about their different rates of emotional adjustment.
  4. "Lumping it"; "giving up" or "yielding" is probably the most common way of handling grievances in all cultures. ("That's life; don't complain; no-one will listen to you; it's not worth the hassle" etc)
  5. Conflict analysis (or conflict diagnosis) is an attempt intuitively or systematically to analyse confidently or speculatively at what are the causes of a dispute; and how far the dispute has changed in nature due to escalation. Analysis is then usually followed by an intuitive or systematic listing of possible methods to respond to the conflict.
  6. Intra-psychic conflict is a conflict which has been mainly caused by a deep hurt carried by an individual (or group) whether (s)he goes. It is sometimes expressed that "we all carry baggage from our past" For example "my mother used to ignore me like you are doing". The conflict may at first present as having entirely different causes than such hidden causes.
  7. Tribal conflict is an analysis of the main cause of conflict is emanating from people who are in the "background". The conflict is being driven mainly by the comments, money and expectations of tribal members including relatives, friends, bosses, next-door-neighbours and lawyers.
  8. Entrapment is a psychological state whereby a disputant is apparently unable to weigh up the costs of a conflict because (s)he has become so committed to the vaguely defined concept of "winning", or at least "not losing". (eg during the Vietnam War, "we have already lost 54,000 casualties, so we can't give up now".)
  9. Dehumanisation is a psychological state and linguistic transition which occurs during conflict which both justifies past behaviour; and encourages future aggressive conflict (eg policemen are "pigs"; Bill is "the manager", Mary is "that bimbo" etc)
  10. Deindividuisation is a psychological transition which occurs during conflict which transforms individual people into groups of "things". Once again this transformation enables rationalisation of past behaviour (eg atrocities); and encouragement of future energetic conflict (eg "greenies"; "typical males/females"; "management"; "multi-nationals"; trailer-park trash").
  11. Good cop - bad cop routine is a very effective and common team negotiation strategy whereby one member (A) is pleasant and the other (B) unpleasant. Thereby the opposition negotiators are constantly encouraged to talk to the pleasant person, as otherwise they will have to deal with the angry, irrational, crazy and out-of-control other team member.
  12. An add-on is a standard negotiation strategy whereby one person just as an agreement is about to be reached, raises another topic for discussion. ("There's just one more thing..."). This is sometimes a sub-conscious strategy used by a person whose life is given meaning by the continuation of the conflict.
  13. Satisfaction triangle is a symbol used to remind negotiators/managers/judges/mediators, that settlements are more likely to be reached and to last if they reflect three elements of satisfaction - procedural (eg "we were listened to") emotional (eg "my sense of despair was acknowledged and legitimated"); substantive ("the outcome was in the range of feasible results if the conflict was not settled")
  14. Negative intimacy is the psychological state of enjoying the conflict (colloquially, a "conflict junkie" or "resentnik"). Someone who is negatively intimate will undermine settlement, and continue the conflict at almost any cost. It gives him/her a meaning to life.
  15. Positional and interest based negotiation These two styles of negotiation are both useful. Both usually co-exist in any one negotiation. Positional (sometimes called "distributive") consists of beginning with a solution (a position), being met by a counter-solution, and each party attempting to create doubt with the other by bluffs, threats and providing misinformation. Interest-based (sometimes called "principled" or "integrative") consists of each party seeking to understand motives and interests behind particular solutions ("increase the chips on the table") and then attempting to package offers (usually prefaced by the ubiquitous phrase "what if….").
  16. Structural conflict is conflict caused by patterns or structures of actual or perceived power which create perceived inequality of bargaining power. (eg "banks always beat customers"; "women always win in Family Court"; "the legal system requires us to draw up inflammatory documents" etc).
  17. Value conflict is conflict caused by different beliefs on what is true or important (eg "lying is wrong"; "trees are more important than logging"; "top down management is better than consultative management"; "a balanced life is more important than high income" etc).
  18. Data conflict is conflict caused by disputants having different information (eg "if we go to court, a judge will do x…."; "I did not say that"; "it is not normal for children to be distressed"; etc).
  19. Duelling experts syndrome is a common pattern of behaviour which usually escalates, rather than resolves, conflict. Each disputant employs a different expert (lawyer, valuer, engineer, psychologist), tells different stories to each expert, expressly or impliedly hints at the advice she wants from the expert, and the expert in order to curry favour tells the client what (s)he wants to hear (without sufficient qualifications). The professional egos of the experts then make it difficult for either expert to change his/her advice. The disputants then pay large amounts of money to resolve an avoidable conflict between the two experts rather than between themselves.
  20. Settlement mediation is a very common form of assisted negotiation. A settlement mediator (often working in a court building) emphasises the costs of continuing the conflict, casts doubt on over-confident negotiators, hints what a judge would do, and quickly suggests splitting the difference. This form of mediation requires little training, is cheap, fast, stress-free and sometimes has impressive settlement rates (often reached in the waiting rooms for complex reasons).
  21. Problem-solving mediation is otherwise known as "facilitative" or "classical" mediation. This process involves a skilled third party assisting disputants to negotiate by listening, uncovering interests (if possible), acknowledging emotions, defining issues and brainstorming possible solutions.
  22. Post-settlement blues are the feelings of regret experienced by many negotiators soon after agreeing to a settlement. They have difficulty remembering events during the negotiation and feel that they may have given away too much.
  23. Cognitive dissonance is a tension experienced by most people when their behaviour, feelings and beliefs are out of harmony. This phenomenon has a profound effect on conflict. For example, young lawyers who are required culturally to act aggressively, soon develop hostile emotions and belief systems about the "opposition". Clients who have acted "badly" in the past tend to develop a belief system and emotions to rationalise (or harmonise) their hostile behaviour.
  24. Tool-box of interventions is a colloquial phrase to describe the range of possible interventions to a particular conflict. Professional dispute resolvers tend to spend a lifetime expanding the number of tools in their toolbox; and enjoy swapping anecdotes and theories about interventions.
  25. Creating doubt is the fundamental umbrella strategy of all negotiators, especially against positional bargainers. Doubts can be raised gently or assertively about alleged facts, evidence, rules, procedures, delays, costs and the range of possible or probable outcomes.

Biography


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.

John now lives in Vancouver, Canada. Contact: jwade@bond.edu.au



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