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<xTITLE>2nd Key-Data: Develop a Negotiation Index</xTITLE>

2nd Key-Data: Develop a Negotiation Index

by Michael Mcilwrath
June 2020

Editorial Note:
Mediate.com is here publishing a series of peer reviewed articles under the collective title Seven Keys to Unlock Mediation’s Golden Age. The objective of the Seven Keys is to encourage discussion among all stakeholders on navigating mediation’s best future. See The Table of Contents is at the bottom of this page.

The seven keys are: Leadership, Data, Education, Profession, Technology, Government and Usage. Each key has between two and four articles, each no more than 1,200 words in length, contributed by some 40 leading authors around the world.

The Seven Keys articles portray a variety of images and understandings of mediation. All recognize mediation’s extraordinary versatility. Some focus on resolving disputes; some on deal making; some on managing interpersonal disputes in families, communities, schools and the workplace with more of a relational focus; others are about peace-making between groups and nations and public policy decision-making. Some of these articles apply to all sectors of mediation practice while others focus on particular fields with a view to inspiring new adaptations and approaches in other areas. Each key is a jigsaw piece. Connected together, they form a vibrant, exciting vision of how the field can dramatically improve and prosper.

Mediate.com believes in so convening the field’s stakeholders to figure out collaboratively how to best grow mediation over the next decade. This is the goal of our upcoming online conference Mediation 20/20: Navigating Mediation’s Best Future on September 30-October 2, 2020.


image

Editorial Note:
Mediate.com is publishing a series of peer reviewed articles under the collective title Seven Keys to Unlock Mediation’s Golden Age. The objective of the Seven Keys is to encourage discussion among all stakeholders on navigating mediation’s best future. Table of Contents here.

The seven keys are: Leadership, Data, Education, Profession, Technology, Government and Usage, each with supportive articles, contributed by some 40 leading authors around the world.

The Seven Keys articles recognize mediation’s extraordinary versatility: a) resolving disputes, b) deal making, c) managing interpersonal disputes in families and communities, e) designing systems for schools and the workplace, f) peace-making between groups, g) and national public policy decision-making. Each key is a jigsaw piece that forms a vibrant, exciting vision of how the field can dramatically improve and prosper.

Mediate.com supports convening the field’s stakeholders to collaboratively grow mediation over the next decade. This is the goal of our upcoming online conference Mediation 20/20: Navigating Mediation’s Best Future on September 30-October 2, 2020.

2nd Key-Data: Develop a Negotiation Index

Folklore was the class at university that fundamentally altered how I view the world. It was taught by a certain Professor Alan Dundes[2] who was internationally known – and notorious – for a number of his essays and books about various human traditions. For those in the USA in those years, perhaps the most controversial of his academic work (which also earned him a number of death threats) was a homoerotic interpretation of American football.[3]

Prof. Dundes introduced his students to different systems for classifying and analyzing human traditions. Among these was the Aarne-Thompson Tale-Type index[4].  This index, “catalogues some 2,500 basic plots from which, for countless generations, European and Near Eastern storytellers have built their tales.”[5] The index classifies tales according to the elements they contain, and numbers them for reference with the “AT - number” designation.  The AT tale types apply to much more than so-called “folktales.” For those who grew up in Western culture, they classify every story you have been told, every film you have seen, every theatrical play you have attended (including all of Shakespeare), and even many urban legends.

Negotiation needs an AT Tale Type Index, and so does Mediation

As an in-house litigation counsel for more than 20 years, I have been involved in countless negotiations (and mediations) around the world. We often struggle to find the right strategy to fit a negotiation and are befuddled by negotiations that fizzle or lead nowhere despite clear advantages (that we perceive) to the other party.  When we try to stretch beyond the familiar, it feels like reinventing the wheel. I may not have been in this situation before, but certainly others have. I have looked for a negotiation resource similar to the AT Tale Type Index. To date, I have found nothing close.

Without such an “index” of data capturing all the different things that occur in negotiation, mediators are handicapped when they try to apply their theories. They lack the reference points other than their own experiences in assisting parties. We all learn on the job, but we also learn much from others.

An index of how people actually negotiated, and what they believe works and what does not, is easily something that could be created with the right level of collaboration among practitioners and academics. Such an index should not adopt or have a preference for any particular negotiation theory or style. With Prof. Dundes, for example, one did not have to accept his Freudian psychoanalysis, and I mostly did not, to appreciate his message that all human traditions can be captured as data, and that data can be collected and organized so as to be easily accessible as a reference for those interested in the field. In fact, he enlisted his students in the task of assembling data, requiring each of us to collect, identify, and analyze 40 items of folklore. Our collective contributions (about 500,000) are today catalogued and archived in the Folklore Archives at UC Berkeley. But Prof. Dundes believed that collecting data was just the foundation of the real endeavor. As he said in one speech, “the presentation of data, no matter how thorough, is useless without the development and application of theory to that data. It is not enough to simply collect, one must do something with what one has collected.”

Certainly, the negotiation field is so vast and varied that an index, catalogue, or canon (call it what you will) could be both rich and useful. Like folklore, negotiation is a human tradition generally passed from one negotiator to another. And negotiation techniques vary as much among practitioners as the situations that negotiators face.

Without any universally accessible reference of negotiation techniques and situations that classifies empirical evidence that may be more effective in given situations, negotiators tend to adopt techniques drawn from their early training, what they once found to have been effective, or their own personal styles.

Who would benefit?

Mediators and negotiators would be primary beneficiaries of such an index. The mediation field is awash with often contradictory theories on how to best use different negotiation techniques. Yet it is it impossible to assess them with reference to available data (where it is available), to add to the data (as with the A-T Index) or compare different techniques and negotiation situations.

With an organized classification of negotiation techniques and situations, parties and mediators could more easily make use of approaches with which they lack familiarity or comfort, but that may be more effective for their situation. Both mediators and parties could more confidently navigate the mediation process. And it could also spur the negotiation field to develop and test new techniques.  

How would a negotiation index work, and what would it include?

Like any good reference, a negotiation index would need to be organic so it could grow over time. It would be able to add new links to available literature or authoritative commentary as it became available, information on whether there is consensus on certain techniques, or minority views inconsistent with current consensus but not necessarily wrong or ineffective.

For example, suppose a party is reluctant to make an opening offer, but has been encouraged by a mediator to do so anyway.  The index could have a section devoted to opening offers, with multiple subsections, such as making the first offer, counter-offers, seeking additional information before making an offer, amounts of opening offers, and concessions following an opening offer. Under each sub-heading would be information about different approaches, a possible consensus opinion, and reference materials. 

For parties - like me - who often struggle to get the other side to agree to mediation, this index might also include a section on proposing methods of reaching agreement, with references on timing and characteristics of the parties, and relevant cultural distinctions. 

A Negotiation Index would help negotiation and mediation to be regarded as serious professional disciplines. Other professions rely on such reference tools. Medicine, for example, has a vast range of well-documented reference tools for diagnosis and treatment available at the touch of a keyboard.

Making it happen

Creating a Negotiation Index - whether as a hard-copy catalogue, an online wiki, a downloadable app, or whatever form could be most suitable - will require collaboration among negotiation and mediation scholars and other thought leaders, their publishers, researchers, skills trainers, and dispute resolution institutions. Just as Prof. Dundes enlisted his own students to create a catalogue, business and law school students around the world could provide a powerful contribution to an effort co-ordinated internationally by a group of scholars. It would take a little time, but with a collective will, such an exciting project could improve the quality of the work that negotiators and mediators do every single day.

ENDNOTES

1 is author bio, below.

[2] For more on Professor Dundes, click here.

[3] Into the Endzone for a Touchdown: A Psychoanalytic Consideration of American Football (1978).

[4] Since then it has been updated and is now called the Aarne-Thompson-Utter Tale Type Index

[5] Id.

 

Biography


Michael Mcilwrath is Global Chief Litigation Counsel, Litigation, for the GE Oil & Gas division in Florence, Italy. His experience in international arbitration includes representing the company in disputes under the rules of various international and regional arbitration institutions and under ad hoc procedures around the world, and in coordinating the activities of outside counsel in domestic court and arbitral proceedings. He has published numerous articles in the fields of international arbitration, mediation, and negotiation. He also hosts International Dispute Negotiation, a podcast made available by CPR (http://www.cpradr.org) with interviews from leading professionals around the world about ways of accepting, mitigating, and managing risks in international contracts. He is a graduate of the University of California, Berkeley (AB) and Cornell Law School (JD). He was Chair of the International Mediation Institute (IMI), in 2009 and continues to serve on its Board of Directors. In addition, he was the co-vice chair with mediator Judith Meyer (and chair, Singapore ambassador at large Tommy Koh) of the IMI independent Standards Committee. He is also a member of the board of directors of the National Center for Science Education, in Oakland, California. Michael is a member of the European Advisory Committee of CPR, and acted as an industry representative to the European Commission (Justice) in the creation of a European ADR Code of Conduct.



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