Frequently Asked Questions about Mediation and Negotiation

What is Negotiation?
What is Mediation?
What Are the Benefits of Mediation?
What Are the Roles of the Mediator?
What is Arbitration?
What is Litigation?
What is Collaborative Law?
What if I want to know more about mediation?
What if I want to be a mediator?


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?)

back to 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.



back to top

Q: What Are the Benefits of 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.

back
to top



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.

Back
to top


Q:What is Arbitration?

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.

back
to top

Q:
What is Litigation?

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.

Back
to top

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.

Back
to top

Q:
What if I want to know more about Mediation?

A:
Please be sure to visit the following Sections of Mediate.com:

www.mediate.com/about

www.mediate.com/resolution.cfm

www.mediate.com/articles

back
to top

Q:
What If I want to be a mediator?

A:
Be sure to visit our Careers Section at www.mediate.com/careers


                        author

James Melamed, J.D.

Jim Melamed co-founded Mediate.com in 1996 along with John Helie and served as CEO of Mediate.com through June 2020 (25 years).  Jim is currently Board Chair and General Counsel for Resourceful Internet Solutions, Inc. (RIS), home to Mediate.com, Arbitrate.com, ODR.com and other leading dispute resolution sites. During Jim's tenure, Mediate.com… MORE >

Featured Mediators

ad
View all

Read these next

Category

The Good and bad of Eye Contact

PGP Mediation Blog by Phyllis G. Pollack Is eye contact a good thing or a bad thing? Some will answer by saying it depends upon the person's cultural background as...

By Phyllis Pollack
Category

National Association for Community Mediation (NAFCM) Endorses Caseload Manager

NAFCM Endorses Caseload Manager This article is dedicated to community programs interested in learning more about Caseload Manager. NAFCM programs are eligible for a 10% discount! Caseload Manager is an...

By NAFCM
Category

What Role Does the Environment Have In Negotiation & Mediation?

If you had a choice in how to set up your mediation or negotiation room, how would it look? I asked, as part of my PhD research at Griffith University...

By Jeff Thompson

Find a Mediator

X
X
X