Opening statements are often the first time that parties interact in any depth with each other in the presence of the mediator, beyond their participation in the beginning of the dispute resolution process. During the disputants' opening statements, mediators begin to observe how the parties interact and their orientations toward their relationships, substantive issues in dispute, and the procedures they use or will be likely to use in their negotiations.

Opening statements are generally the first indicator of what parties' relationships have been in the past or currently are in the present. They may have been or are entirely negative, nonexistent or neutral other than in the context of the current dispute, mixed with both negative and positive aspects, or principally positive with the exception of issues over which they are now in conflict. Opening statements are also a good indicator of whether the focus of talks from each disputant's perspective will be on the parties' relationships themselves, or whether the quality and dynamics of their interactions are more of a contributing factor to the dispute. If the former, mediators will start to identify the relationship issues that will be the focus of the parties' discussions. If the latter, intermediaries will begin to think about how to minimize the impacts of negative dynamics as the disputants discuss other issues, and how to enhance the positive ones.

Opening statements also commonly communicate significant amounts of information about the substantive issues in dispute. More will be said later in this chapter about what can be communicated in this area. For the moment, the mediator should be on the lookout for issues, needs, interests, and concerns that the parties will want to discuss in more detail at a later time. It should be noted that parties often use opening statements focused on substantive issues to try to establish their preferred parameters for a negotiations and the outer limits of an acceptable settlement range. Mediators should also look for these parameters as they will shape the focus and dynamics of talks in later stages of the mediation process.

In addition to relationship and substantive information provided by parties in their opening statements, the ways in which they are presented are often good indicators of the negotiation procedures that the parties plan, at least initially, to use to conduct future talks. They commonly signal whether a party is going to use relationship, positional, or interest-based negotiation processes to address their issues, needs, and interests.

The Problem of Limited Information

Negotiators commonly enter talks with different amounts of information about their own and other parties' issues, needs, interests, concerns, and preferred solutions. In some disputes, they may be very informed and clear, will not need to spend much time educating each other, and can focus rapidly on detailed discussions of the issues and what will be needed to reach understandings or agreements. In other disputes, parties may lack basic information on a number of dimensions and may need to spend more time exchanging data that will be relevant for informed and productive discussions, negotiations, and agreement making.

At the beginning of negotiations, a negotiator may be unclear about

“The basic issue(s) at stake”
The “range of alternative choices or strategies” available
The solutions that will best meet his or her party's interests or needs
The number and identity of people who should be involved in the negotiations (or whom they will affect)
The way that other negotiators will make decisions


Parties often use opening statements to present and test their views and assumptions on some or all of the preceding topics. Mediators should be familiar with the variety of ways in which parties make opening statements to explore these topics so that they are ready to respond creatively to them.

As noted above, parties may make opening statements with diverse focuses and degrees of specificity about their relationships, substantive issues in dispute, or the procedures they want to use in talks. Described in the following sections are a variety of ways parties may focus their opening statements. They are important for mediators to know so that they can (1) develop strategies to prepare parties to make effective and positive opening statements, and condition recipients on how they can best receive and respond to them, (2) develop strategies for the intermediary him- or herself to respond to them as they occur, or (3) recognize that parties may need help before the joint meeting to prepare an opening that will be both effective and well received by their counterpart(s).

Openings Focused on Substance

The most common way many parties begin either negotiations or mediated talks is to focus immediately and almost exclusively on presenting their views on the substantive issues in dispute. In this approach, the negotiator usually selects several variables related to the dispute on which to make a presentation:

The history of the problem
Issues that need to be addressed and resolved
Reasons why a change is needed or desirable
The merits of their claim
Their needs and interests
One or more options or a position that will address and satisfy their needs and interests
Why the options or position he or she is proposing is the best course of action
The negotiator making the opening statement generally tries to order his or her points in a manner that he or she believes will be compelling and have the maximum positive impact on and be best received by the other party or parties and the mediator. The party's approach frequently focuses on persuading the other party and mediator to recognize the merit of his or her arguments and accept the topics to be discussed and, ideally, the proposed outline and sequence to be used to address them.

information that can be presented in opening statements:

Focus on history, need for change, position, and the merit thereof. This combination is quite common in many situations and cultures. The negotiator reviews the background of the dispute, outlines how the status quo has caused damage, tells why change is needed, and then proceeds to detail an opening position, which is often a maximal or minimal position depending on the goals of the party, which he or she feels has merit and will solve the problem. This type of opening frequently forces parties into hard positional bargaining, as the respondent to the opening statement is likely to reciprocate with an equally strong opening.

Focus exclusively on issues to be discussed.

Some negotiators may dispense with the history of the problem and proceed directly to a presentation and discussion of the issues that he or she wants to discuss. These may be presented in several ways:
Very generally, leaving other parties to determine potential details and importance of each to the presenter.
Outlined in the form of a list that presents the most important issues first, indicating which items the negotiator believes should deserve the most attention.
Outlined with simple, smaller and more easily resolved issues first, and ending with those that are likely to be harder to address and resolve.
In a random order so as to not to reveal which are the most important, or to allow the parties to jointly organize them at a later time.
In an exhaustive manner that includes both the issues of the presenting party and issues that he or she presumes may be important to the other party or parties. (If done well and sincerely, this method can demonstrate an interest in the other party's viewpoint or issues. However, if done poorly, it may be seen by the counterpart as an attempt to preempt their own presentation and unilaterally define the scope of issues to be discussed.)


Focus on issues to be addressed and merits for change.

In this approach, the negotiator tries to educate the other party about the issues he or she wants to be addressed and the need for change without disclosing or proposing a position or other potential options for settlement. The major assumption behind this strategy is that if a party can make a convincing case that his or her situation is intolerable and that change is needed, it will be easier to develop and reach an agreement later on a solution.


Focus on issues, needs, interests, and concerns. In this strategy, the negotiator identifies the issues he or she wants to talk about and provides additional information on the needs, interests, or concerns he or she seeks to have addressed and satisfied through negotiation. This strategy does not present specific ways to accomplish this goal.
By focusing on interests instead of positions, the negotiator hopes to prepare the groundwork for further interest-based discussions. This strategy can be initiated by a negotiator on his or her own or may also be encouraged by a mediator who wants to move parties toward using interest-based negotiations.
Focus on issues, needs, and interests and provide an illustrative potential solution. This strategy is the same as the preceding one, except that the negotiator presents an example of a potential solution that would be acceptable to him or her as a way to further educate the other negotiator about his or her needs and interests and what might satisfy them. After making this kind of opening, a negotiator may add the following for the counterpart, “If you can suggest other options that will meet my interests, and yours too, I would certainly be open to considering them.”


Focus on issues and present positions. This strategy involves identification of issues to be discussed, and the preferred solution to address and resolve it. As an “opening position,” it may be assumed that the party will have more to offer later in negotiations.


Focus on issues, present positions, and argue for their merits. This strategy adds to the preceding an additional argument on why the position is important to consider.


Focus on an apparent nonnegotiable position. In cases in which parties are extremely polarized and feel that they have little room for bargaining, a party may want to make a strong statement that indicates how much the other party will have to move in order to reach an agreement. Such a statement may also indicate that the party is planning to use a leap-to-agreement strategy, in which a negotiator presents an extreme position and adheres to it until the end of the negotiations when a compromise package agreement is proposed.
While this strategy often illustrates how strongly a party feels about an issue or preferred solution, it is risky. The strategy can backfire if, upon hearing it, the other party or parties walk away from talks and pursue other means of dispute resolution, such as litigation or direct action.

Openings Focused on Procedure
Another way parties make opening statements is to begin with a discussion of procedures that should or will be used for negotiations. This strategy is not as common as openings focused on substance but is often a very productive one.

In this strategy, the time in which the disputants focus on behavioral guidelines is expanded by a proposal for an extended discussion of procedural steps the parties will use to resolve their dispute.

Advantages to opening negotiations with this focus include

-Enabling parties to jointly develop the sequence for the negotiation to which all parties are committed
-Allowing parties to practice making decisions as a team
-Providing information about the behavior, attitudes, and trustworthiness of other parties
-Allowing parties to practice making agreements on issues that are neither as substantively important nor as emotionally charged as some other potential issues in dispute
-Creating an opportunity to build “habits” of agreement
-Demonstrating that agreement is possible and that the situation is not hopeless


Some procedural issues about which parties may make agreements include

How the agenda will be developed, and who will be involved in doing so
Negotiation procedures to be followed (relationship, positional, or interest-based)
The time frame and schedule for sessions, including beginning and ending times
How information will be shared among disputants and collected if it is not readily available
Information sharing procedures with constituents or nonparticipating parties
How legal rights and administrative mandates will be recognized and protected
Parties' relationships with lawyers
Parties' relationships with media
Acceptable and unacceptable behavior (for example, respect for values, avoiding personal attacks, nonattribution of motives, emotional displays, and attitudes toward win-lose solutions)
How commitment to the procedures and to potential agreements will be maintained
Roles of experts
Roles of substitutes and observers
Roles of smaller mixed-interest work groups
Who will represent a party, and if a multiparty dispute, the size of negotiating teams
Location of meetings and venues
Maintenance of meeting records
How procedural and substantive agreements will be enforced
Parties occasionally initiate this type of opening on their own, but more frequently mediators may encourage negotiators, implicitly or explicitly, to focus on procedural issues and related agreements before delving into substance. This is often initiated if the intermediary believes parties need to build trust or experience working with one another or will benefit from a more extensive set of agreements on procedures.

A caveat should be considered before proposing this strategy. Often parties want to get down to discussing substantive issues, and may have limited tolerance for discussions of procedures. If a procedural opening takes too long, they may feel that either the proposing party or the mediator is delaying what they consider to be the “real” talks. If the negotiator or mediator uses or encourages this opening, they should pay close attention to how the other party is responding to it, and try to ensure that it is positively received. If there is significant resistance, the negotiator or mediator may want to move the talks either toward substance or the parties' relationships, depending on what the parties want or need to focus on.

Openings Focused on the Relationships

In many formal negotiations or mediations, an opening focused directly on the parties' relationships and psychological conditions is not as common as substantive or procedural openings. It is more frequently observed in transformative mediation , a form of third-party consultation practiced by organization development specialists

This strategy and related procedures for making an opening statement is oriented toward increasing disputants' understanding and tolerance of each other and diverse views, and addressing problems in and improving parties' relationships, perceptions, attitudes, interactions, and related issues. A relationship-focused opening statement may have one or more areas of emphasis and content:

A general statement that indicates the party's intent to be cooperative; engage in collaborative negotiations; respect and act in a respectful manner to each of the involved parties; remain open to hearing and considering the needs and interests of all concerned; find or jointly develop solutions that will be mutually acceptable; and preserve, enhance, or redefine the relationships of the disputants in a mutually appropriate form.
An acknowledgment that there have been past problems or conflicts in the parties' relationship or interactions, potential recognition that harm has been done and negative impacts it may or has had on the recipient, and a statement of the presenter's desire to correct what has happened and to make it right (such as in restorative justice or victim offender mediation).
A general description of the parties' past relationship, general statements about its positive and negative aspects, and the presenter's desire to discuss and explore how the relationship can be changed without much of a description of causes of problems, specific issues to be discussed, or proposals for solutions.
A more specific description of a number of relationship problems—perceptions, attitudes, behaviors, interactions, and dynamics—with a proposal to discuss them in more detail in in later talks.
The first and second focus presented above may be used as a preliminary opening prior to making a more detailed opening statement focused on substance or procedure. If this strategy is pursued, the party making it is generally trying to establish a positive tone for talks and indicates their intent to listen to, consider, and address the concerns of others. They often hope that by making such statements, they are encouraging the receiving party to reciprocate in a similar open and collaborative manner.

The other above focuses of relationship-oriented opening statements emphasize that the target of talks should be on relationships and the issues themselves, and define to various degrees what they should be.

If during data collection, conflict analysis, and the design of the mediation plan a mediator thinks that a relationship-focused opening statement will be the best way for a party to open talks with their counterpart, and the disputant agrees, he or she may encourage the party to do so and discuss with him or her prior to the joint session how it may best be done. Generally this will involve exploring with the disputant his or her feelings and thoughts about the dispute using reflecting or active listening and summarizing, and then working with the disputant to prepare an appropriate relationship-oriented opening statement.

Alternatively, if the mediator believes that he or she should help to create a climate or conditions in which the parties recognize or establish positive aspects of their relationship before they make their opening statements, he or she can make a “conditioning” or “priming” statement, and ask a related question. Conditioning or priming statements are comments by a mediator that either suggest or encourage disputants to think or act in a particular way. A conditioning statement may try to prevent negative attitudes, actions, or dynamics from occurring by recognizing and labeling them before the fact, and suggesting that it is desirable that they not happen, or it may encourage positive attitudes or actions.

Before you talk about your past interactions and the topics you want to discuss about the clinic and the future, it might be helpful for both of you to talk briefly about and recognize some of the positive aspects of your working relationships and the good work each of you has done—individually, together, or with other staff members during the time that Dr. Whittamore has been at the clinic—to further your own and the clinic's goals?

Mediators in marital disputes occasionally spend time before formal divorce negotiations asking couples to discuss their courtship and the beginning of their relationship, why they got together, and what they appreciated about each other. This is done before the parties' discussion of their relationship issues and the decline of the marriage. It is argued that this procedure helps the couple adjust to the fact that they are divorcing. This approach can help disputants recognize that what they perceived as a totally negative relationship and past set of interactions may be more mixed with both positive and negative elements, dynamics, and outcomes.

If the mediator determines (often before formal talks or parties' opening statements are made) that the opening of a relationship-oriented negotiation process needs to be conducted in a much more structured manner, he or she may propose and plan with disputants a more choreographed process where parties have an opportunity to meet informally in a social context to begin to establish and build potentially positive personal connections.

The Choice of Opening
The disputants' choice regarding whether to focus on substance, process, or their psychological conditions or relationships commonly depends on the

Type of dispute

Abilities of the disputants to focus on substantive issues
Level of emotional intensity of parties
Internal and external pressures on the negotiators to settle substantive issues promptly
Degree of authority disputants have given to the mediator to design, influence, and manage the meeting process and opening statements
If the mediator believes that the parties have the capacity and should make their own choices about the focus, process, and related content of their opening statements, he or she should allow them to move forward as they choose. However, if the intermediary has questions about the potential focus or process that is likely to be used by one or more parties, and whether it will be productive and positively received by others, he or she should consider working with the disputants before the start of the first joint session to help them determine the best focus and process to be implemented. The mediator may work with one or all parties on how they will make their opening statements, and may also work with future recipients to prepare them to listen to and, ideally, consider and accept the approach of the other party. Although parties may occasionally resist a mediator's suggestion for how to make or receive an opening statement, they can often be persuaded to try or accept a proposed strategy if they can be convinced that it will improve their communications and relationships with the other party or parties and help further achievement of their goals.

The Transition to Parties' Opening Statements


So far, we have discussed a range of possibilities for the focus and content of the parties' opening statements. We now turn to the decision about which party starts and how the mediator makes the transition from his opening statement to those of the disputants.


At this time, I propose that we move into a discussion of what brought you to mediation. [The mediator turns to the party that she has previously decided should begin presenting first.] Dr. Whittamore, will you please begin by describing the situation as you see it? Please include some of the historical background of the issues that you are concerned about, the specific topics you would like to discuss later in our talks, and some of the needs or interests that you would like to be satisfied if our discussions have been successful. At this point, it will be helpful not to identify specific solutions to the issues that you are concerned about, but merely focus on what you feel is really important to talk about and consider. [The mediator now turns the session over to the first party, who begins his opening statement.]

Facilitation of Communication and Information Exchange in Opening Statements
The most critical task for disputants making opening statements is to maximize accurate information exchange (unless, of course, it is part of their strategy or in their perceived interest to leave the information they will provide vague). They may be hindered in doing so by a number of factors:

The expression of strong emotions (such as anger, hurt, frustration, and feelings about being treated unfairly, and so forth)
Misperceptions or inaccurate content of their presentation
Lack of clarity or conciseness in the presentation of their views
Strong and easily perceived to be nonnegotiable positions
As parties make their opening statements, they may also be faced with problematic responses from another negotiator. Some of these may include

Negative and nonreceptive nonverbal communications (such as scowling, frowning, not providing any eye contact, looking up and away from the presenter, down at a table or their hands, rapid and emotion-laden writing, and so on)
Verbal objections
Interruptions and jumping in to present counterarguments
Extreme disinterest
When faced with these dynamics, the mediator should try to prevent interruptions by reminding all parties about any meeting guidelines they have agreed on that allow each of them to speak in an uninterrupted manner, or request that the respondent not interrupt the speaker, listen to what is being said and write down any points (ideally in a nonaggressive manner) about the content of the other party's statement that he or she may want to discuss later in the mediation.

If an opening statement cannot be conducted without interruption, the mediator may need to call a private meeting with each party, and with the “offending” party first, to discuss how to proceed and whether openings can be made without comment from each of the parties. If necessary, this may need to be presented and approved as a new meeting guideline.

Either during or at the end of each party's opening statement, as appropriate, the mediator may ask the presenter clarifying questions; probe to identify and better define the disputant's concerns, needs, and interests; and, as necessary, “translate” and reframe them in words that will be better understood and received by the other party. However, care should be taken not to intervene too much and break the presenter's thought or presentation pattern.

At the conclusion of a presenter's comments on specific issues or at the end of the opening statement, the mediator may also want or need to reflect back, restate, or summarize what has been said and heard. This tests out and verifies the accuracy of his or her understanding, helps reiterate the speaker's points and can help “translate” the contents of the opening statement through reframing so that is better understood and received by the other party. Generally, restatements or summarization should be accurate, made in more impartial language than may have been used by the presenter, and may order the content and suggest a potential sequence that will facilitate future discussions.

Creation of a Positive Emotional Climate
In addition to facilitating effective communications between the parties during their opening statements, the mediator often must help to create an emotional climate conducive to clear communication and joint problem solving. This may involve implementing some of the potential interventions identified in earlier mediation planning. Interventions related to promoting a positive emotional climate include

Making prevention statements or intervening to prevent or minimize interruptions or verbal attacks
Encouraging parties to focus on the problem and not on negative personal traits or each other
Translating parties' value-laden or judgmental language into less emotionally charged language
Affirming positive statements, procedural suggestions, or gestures of good faith while not taking sides on substantive issues
Accepting the expression of feelings and being empathic, but not doing so in a way that it looks like taking sides
Requesting that parties adhere to the behavioral guidelines that have been established
Defusing threats by restating them in terms of how important a desired change is to a party
Intervening to prevent the escalation of strong negative emotions, words, or actions
Cultural Variations in Parties' Opening Statements
The cultural context—professional, educational, ethnic, gender, and national—of the parties and mediators may significantly influence parties' opening statements and the role of the mediator in facilitating them. It is important for an intermediary to start the process in a manner that will be both culturally appropriate and acceptable to the parties. Although it is impossible to describe the range of cultural variations that may be used in this stage, there are some that appear more frequently.

In situations and cultures in which social network mediators play a predominant role, more time may be allocated at the beginning of the mediation session—before the formal presentation or opening statement—for informal conversation, which is often focused on recognizing and building connections between the mediator and the parties and between the parties themselves. This time helps to establish or reestablish the relationships between the parties and may also identify mutual bonds or obligations that will encourage settlement. In some cultures, such as many in Latin America and the Middle East, the opening of mediation or negotiations is also accompanied by the consumption of a beverage (and in other cultures, food), which may be provided by the mediator. For example, drinking tea is common in the Middle East, Iran, Pakistan, India, Sri Lanka, and in many societies in Africa (Senger, 2002). In a number of cultures, such as China, Japan, and Indonesia, this opening or social phase of the mediation may actually be separated in time and place from later talks focused on substantive issue identification and problem solving (Graham and Sano, 1984).

In situations where the mediator is in a hierarchical relationship to the parties, or the parties are in a vertical relationship with each other, the opening statements may be more formal and recognize the authority of the mediator, the superior-subordinate relationship of the parties to the intermediary, and differences between the parties themselves. This formality may be both culturally appropriate and necessary to demonstrate respect for the positions of the parties and the mediator. Although this may go against norms of more egalitarian societies, it is both acceptable and expected in more hierarchically organized cultures.

The level of detail and specificity of parties' opening statements may also vary across cultures. In high-context and fairly homogeneous cultures, where members have many common and unspoken assumptions about how the negotiation process will be conducted, the degree of explicitness is generally less than might be the case in low-context cultures composed of members from diverse backgrounds and where parties expect and require detailed explanations to ensure that there are not misunderstandings (Hall and Hall, 1987). For example, parties in Japan, a high-context society, are often less explicit and commonly present opening statements with much more general content than is the case with parties in the United States, Canada, or Australia whose members come from multiple cultures and where more explicitness is required to assure understanding.

Patterns of communication may also differ concerning whether parties present their opening statements one at a time with few interruptions or in overlapping ways. Some cultures, such as the majority culture of the United States, are monochronic, in that events, activities, and many communications occur one at time (Hall, 1983). One person talks and the other listens. However, a number of other cultures, such as many around the Mediterranean region and Africa are polychronic, in which multiple activities, presentations, and conversations may overlap or occur at once. These communication patterns can significantly affect the type of dialogue that occurs between the mediator and the parties during their opening statements, as well as discussion or argumentation between the parties. What in one culture appears to be rudeness, interruption, and poor listening may be highly acceptable in another.

Mediators may need to adjust their communication patterns when working with disputants from monochronic and polychronic cultures by adopting or adapting their communication styles, and helping other parties to do so too, to better coordinate cultural norms. They may do this indirectly, as appropriate, by openly discussing and reaching an agreement on communication norms that will be used in meetings.

Framing Issues and Setting an Agenda
Once parties have completed their opening statements and points made have been summarized by the mediator, they are ready to make the transition to further define issues to be discussed and develop an agenda with discrete topics and a sequence for talking about them. As with any transition, coordination and agreement between or among the parties and the intermediary will often be required.

Shifts between different stages and tasks in mediation may often be difficult for parties and mediators to accomplish smoothly (Wildau, 1987). The transition from parties' opening statements to framing the issues to be discussed and developing a mutually satisfactory agenda is no exception. As we move on to the next tasks in mediation, we will explore strategies that mediators and parties can use to facilitate this transition.

Negotiation and mediation are problem-solving processes, and potentially, opportunities for disputants to establish, define, build, redefine, or terminate relationships. Both the problem-solving and relationship-defining aspects of mediation occur in the context of defining and discussing parties' issues. It is generally helpful for the parties and the mediator if, early on in negotiations, some if not all of the key issues or topics to be discussed are identified, jointly defined, and ordered in a productive sequence for discussion. This will help form a productive agenda for future negotiations.

There are three critical tasks that negotiators and mediators must accomplish to develop a useful agenda for negotiations: (1) identification of the broad issues or topics of concern that parties want or need to discuss, and at least some level of agreement on their definitions, (2) identification and concurrence on at least some of the subissues that are or may be component parts of the broader topics, and (3) agreement on the sequence that will be used for discussions.

A number of variables and potential problems may influence how rapidly and easily this task in negotiations can be accomplished:

The clarity of the parties' opening statements
The capacity of negotiators to listen to and recognize a distinct issue or topic area as it is presented
How broadly or narrowly negotiators define the issues to be addressed
The number and complexity of issues
The level of detail provided about issues
The negotiators' understanding of the issues in general and each other's views on the issues
The negotiators' understanding of other party's needs, interests, and concerns
The effectiveness of parties' power and influence to persuade other negotiators to accept an issue for inclusion on the agenda
The degree of psychological or other resistance to collaboration exhibited by one or more parties
Disagreements over the sequencing of when issues will be discussed
Ideally, mediators will have started to help parties overcome some of these problems during and at the conclusion of their opening statements, by using restatements, active listening, framing, reframing, and questioning. They will now continue their assistance by providing other procedures to help overcome some of the preceding difficulties and create a viable agenda.

Identifying and Framing Issues
Before examining ways to develop agendas to discuss issues identified in parties' opening statements, we will take a brief detour and return to a more detailed examination of two communication procedures and skills described earlier in Chapter 8. These have variously been referred to as framing or reframing (Watzlawick, 1978; Mayer, 2012), characterizing (Stulberg, 1981a), reconceptualizing, or redefining (Boulding, 1962; Sawyer and Guetzkow, 1965). These procedures involve how various aspects of conflicts are described, defined, or redescribed either by parties or the mediator. These procedures are commonly used by parties and mediators to help clarify and develop an initial description of issues to be negotiated and needs, interests, and concerns to be addressed and met.

In the process of describing both the broad parameters of a dispute and specific issues to be resolved, the parties and the mediator commonly engage in an interactive dialogue on how they will be defined. These definitions very much depend on how parties “see” the conflict or dispute.

In conflicts, each party comes to negotiations with his or her own individual and subjective picture of what issues are in dispute and what the basis of conflict is (Berger and Luckmann, 1967). Watzlawick (1978, p. 119) describes the individual's condition and how he or she frames the situation at hand as follows: “Let us remember: We never deal with reality per se, but rather with images of reality—that is, with interpretations. Although the number of potentially possible interpretations is very large, our world image usually permits us to see only one—and this one therefore appears to be the only possible, reasonable, permitted view. Furthermore, this one interpretation also suggests only one possible, reasonable, and permitted solution.”

Framing is summed up in the familiar saying about the difference between an optimist and a pessimist: “The optimist says of a bottle that it is half full; the pessimist sees it as half empty. The same bottle and the same quantity of wine—in other words, the same first-order reality—but two very different world images, creating two very different (second-order) realities” (Watzlawick, 1978, p. 119).

Applying this concept to a specific dispute may make it clearer. Two soon-to-be ex-spouses are in a dispute over child custody and which parent will have legal custody of a child. Both parents want to ensure that they will have a high level of involvement in their child's life. They, and in many cases the judicial system, often define the resolution procedure as a court decision determining who is the best qualified and most appropriate parent who can best care for and ultimately legally possess the child. There are, however, alternative ways that these parent-parent and parent-child conflicts and relationships can be framed. If, for example, the struggle over legal custody is redefined or reframed in terms of maximizing the opportunity for each parent to have a high-quality relationship with the child and adequate time to do so, and the concept of legal custody or ownership of the child is reframed in terms of parental rights and responsibilities toward their offspring, the bipolar struggle with only a win-lose outcome may be transformed into a more complex issue with multiple variables that may be traded off one against another (Haynes, 1981; Ricci, 1980). By reframing how a dispute is seen and defined by the parties, the parties and the mediator can open the door to more collaborative and mutually satisfactory solutions.

Variables in Framing and Reframing Issues
When either a party or a mediator frame or reframe various aspects of conflicts, including topics to be addressed in an agenda, their activities should consider five variables: (1) the meaning or essence of truth that is contained in the framing of a viewpoint, problem, or issue in the eyes of the party presenting it (which must be recognized and preserved if the statement is later reframed); (2) the level of reframing; (3) the potential need for reframing issues, positions, needs and interests; (4) the explicitness and timing of reframing; and (5) appropriate language to redefine the topic to make it more acceptable for discussion.

Reframing and Meaning
Every framing of a conflict situation, problem, issue, position, or interest has some kernel of meaning or truth for the party who advocates it. “Even in the most hostile, negative presentation of an issue, there is information about a person's concerns and attitudes that can be useful in moving communication forward. Likewise, even in the most collaborative-sounding presentations, there are challenges and obstacles to effective communication” (Mayer, 2012, pp. 202–203). The essence of reframing, whether by a party or a mediator, is to clarify and uncover the essence of the meaning, needs, interests, or concerns from an unproductive framing, and present it in a new way so that it can be more easily accepted and addressed by the parties.

Levels of Framing
Mayer (2012) notes that there are three levels of reframing: detoxification, definitional, and metaphorical reframing. Detoxification framing refers to changing the verbal presentation of a comment, idea, or proposal to remove judgmental, derogatory, and negative attributions, negative emotions, or extreme positions. This often requires changing wording or syntax. Reframing toxic language to make a topic more amenable for discussion while still maintaining the essence of feelings or underlying interests or needs can help both the presenter of the initial framing and its recipient get past the strong emotions or negative language that may inhibit further discussions. Let's look at a reframe of toxic emotional language. The first party says of another, “You must be a moron to consider that kind of solution. It would have been acceptable twenty years ago, but times have changed. We have been damaged and ground down by your foolishness for years!” The reframe might be, “You would like to consider a wider range of solutions than the one that has been proposed because the circumstances are different than in the past, and the impact on you may also need to be factored in.”

Definitional reframing refers to changing the conceptualization of a conflict or situation to make it easier to communicate more effectively in a less polarized way and conduct collaborative problem solving. This may involve defining the problem in a way that all parties can subscribe to. For example, in a debtor-creditor dispute, a bank, represented by Ms. Ross, may define the problem as “getting paid back the full amount due now, or foreclosure will follow.” A farmer, Mr. Brubaker, who owes the creditor, may define the problem as “how to get the creditor off my back, and keep on farming on the land that has been in my family for three generations.” Probably neither of these frames will be acceptable to the other. The mediator, after carefully examining the underlying interests of the parties, might reframe the problem in this way: “What we are looking for is a way that the bank can be paid back the money it has loaned and not have to get into land ownership, which is not its primary business; and at the same time try to find ways to schedule the repayment of the loan in a way that repayment is possible, and make the farm a viable operation so that Mr. Brubaker can continue the family tradition and preserve his lifestyle.” The reframe, which is also a joint problem-solving statement, redefines the problem that the parties are working on in a mutually acceptable way.

Metaphoric reframing “Occurs when we try to find a new or altered metaphor for describing the situation or concept, thus changing the way in which it is viewed. Sometimes this means finding a metaphor that all parties can use or translating one party's metaphor into a metaphor recognized by the other party” (Mayer, 2012, p. 206). For example, negotiation is described by one party as a competitive “game” in which participants are either jerks or suckers, and no negotiator wants to be “a sucker.” The other party described negotiations as being dropped into an ocean without a life jacket, with the potential for going down and drowning. Looking at these two apparently contradictory metaphors, the mediator might reframe the problem in this way: “Survival is important to you both. Neither of you want to be taken advantage of by the other and lose. Perhaps we need to imagine this situation as both of you being in a boat that is leaking and in order to survive, you will need both of your strengths to bail. This not an game or issue of who is a jerk or a sucker, but how you will both be survivors and come out of this conflict in the best shape possible.” The reframing takes elements of both of the parties' metaphors and transforms them into a new joint definition of the problem.

Reframing Issues, Positions, and Interests
The act of reframing in itself may raise some important questions regarding the mediator's neutrality. The general assumption of mediators when reframing an issue is that they are making such a move “based on some conception (implicit or explicit) of a more constructive or desirable relationship for the original players than the one that they see themselves engaging in at the outset of the interaction. And in this context, the terms ‘constructive’ and ‘desirable’ inevitably carry normative content. Be this as it may, mediators constantly redefine the context of disputes in ways that disputants find to be extremely helpful to avoid or overcome impasse” (Young, 1972, p. 59).

Reframing may focus on a redefinition of parties' individual or common situations, issues, positions, and interests. In reframing, mediators often use a technique to either expand or narrow topics of discussion to provide parties with more room to bargain or make desirable trades. An example of expansion is a labor-management dispute in which the union and management teams have bargained to a deadlock over a wage increase. The union demands more money and management is adamant that they will make no concessions in this area. The mediator can help both parties by broadening the scope or number of issues to be addressed, and interests that can be traded. He or she may do this by reframing the problem for the union in terms of how its team can bring its constituents some tangible results and benefits from negotiations that they will value, which could be in the area of wages but could also be in other areas such as benefits or working conditions. The mediator may also introduce the broadened reframe of the issue to management, to see if it might have more flexibility to negotiate on issues other than wages. If the reframe of the broad issues to be discussed is mutually acceptable, the parties will have made a step toward overcoming their impasse and can proceed to explore in more detail the range of other issues that may lead to an agreement.

Reframing can also be used to narrow the framing of an issue under discussion, or to create a number of smaller topics for discussion. An example is a dispute mentioned earlier that I mediated between sport fishermen and the staff of a national seashore, which was part of the US National Park system. The initial issue involved lowering the speed limit in the park during the nesting season of an endangered species of turtle. The park had made a unilateral decision to lower the speed limit, which was adamantly opposed by the fishermen who argued that a lower limit would increase the time required to get to some of their favorite fishing spots and thus limit their access. The parties were deadlocked.

By looking at the problem differently, the parties and I were able to break the big issue, a higher or lower speed limit, into several narrower ones that the parties agreed to discuss. These included issues such as where on the beach and when might a lower speed limit be put in place; whether the annual timeframe for lower speeds could be narrowed by allowing faster speeds on the “shoulders” of the nesting period; or, rather than having specific dates for lower speeds, the timing could be based on observations of when the turtles were or were not nesting.

Implicit and Explicit Framing and Reframing and Timing
Initial presentations of topics for discussion in parties' opening statements—be they issues, positions, needs, or interests—may vary considerably regarding their degree of explicitness or clarity. On occasion, they may be stated in a very vague manner, with the party proposing them assuming that the other disputant will implicitly understand what is being presented and proposed. Conversely, one or more topics may be presented in explicit and detail. The degree of implicitness, explicitness, and clarity of proposed topics for discussion may be either useful or problematic for furthering negotiations. More general presentations, with not too much detail, may encourage the receiving party to accept it for future discussion, if for no other reason but to learn more about what the proposer has in mind. Conversely, a vague presentation of a topic may leave the negotiator receiving it confused and unclear about what the person proposing it really wants to discuss, and may delay progress.

On the other hand, more detailed proposals for topics for discussion may be helpful and enable disputants to focus in more rapidly on what they need to talk about. But they can also be problematic. If proposals are very detailed, and especially if hard-line positions are advocated, they may not allow much room for future bargaining, and may be rejected outright.

The degree of implicitness, explicitness, or clarity of descriptions of topics for discussion in negotiations also commonly varies over time. This may be due to cultural norms regarding how implicit or explicit descriptions of topics for discussion should be in opening statements; conscious strategies of negotiators concerning what they choose to reveal, emphasize, or de-emphasize and when this should occur; the extent to which parties at the beginning of negotiations are informed about issues in question; and the fact that disputants may expect to both provide and receive more details later in talks as part of a mutual education process. In most cases, it is commonly expected that through the ongoing process of discussion, parties will begin to educate and better understand each other, and move toward either accepting frames put forward by each of them, or jointly define, reframe, and, make more explicit the issues that they are willing to talk about.

Parties and the mediator should consider how framing proposals of topics for discussion either more or less explicit can be used to make them mutually acceptable to explore in the future. We will now look at two additional variables that may influence explicitness and acceptability.

On occasion, one party may precisely name and frame an issue for negotiation, only to have it repeatedly rejected by another negotiator. Only after multiple rounds of advocacy of the topic and its rejection may parties finally be able to tentatively accept a proposed framing and agree to talk about it. Ironically, the final framing of the issue by the parties, or potentially by the mediator, may be virtually the same or almost identical to its earlier characterizations. The variable for its ultimate acceptance is timing. Extended discussion often provides an opportunity for greater understanding and a change in the psychological readiness of parties to accept the proposed definition of an issue and its inclusion in the negotiation agenda.

An additional dynamic related to the explicitness of topics for discussion, relates to who makes a framing or reframing explicit. In some situations, if either the presenting party or the one receiving it tries to describe and make a topic for discussion more explicit, it may be rejected by the other party. If, however, after listening to the parties talk, the mediator proposes a framing or reframing, it may be accepted by the parties, even if it is virtually the same framing one that had been previously rejected. Social science research has demonstrated that parties are often willing and able to hear and accept statements worded by the mediator when they are not able to hear or accept identical ones from each other (Rubin and Brown, 1975). Mediators should carefully consider how and when they may need to intervene to make issues either more or less explicit.

Appropriate Language

One remaining point needs to be covered regarding the framing of issues: the mediator's language. Disputants often use language that is judgmental, positional, and biased toward their subjective point of view. In joint session, mediators usually try to translate the language of the disputants into more impartial terms that remove bias, positions, and judgment. Thus, when one party says, “That fat slob hasn't paid his rent money for the past two months,” the mediator may translate this as “You are upset that you have not received money you feel is due to you according to the terms of your rental agreement with Mr. Brown.” In this case, the judgmental statement that Brown is a slob is dropped, and the implicit demand on Brown is turned into a statement about the landlord's feelings of deprivation and need for reimbursement. This, after all, is what concerns the landlord. Reframing the problem in this way also may help Brown feel more comfortable with the issue. The focus is no longer on his character but on the landlord's need to be paid.

Stulberg (1981a) notes that mediators should take great care to avoid “trigger” words or statements that parties may interpret as mediator bias or preconceived judgments as to who is right or wrong. Additionally, many mediators avoid adversarial language, referring to conflicts as “situations,” “issues,” or “problems;” positions as “view;” disputants as “participants;” and negotiations as “discussions,” “deliberations,” or “talks,” to depolarize and neutralize value-laden and conflict-oriented terminology.

There are times, however, when entirely impartial terminology cannot be developed in joint session. If parties cannot reach an agreement on issues and their framing together, the mediator may need to call a caucus to discuss the problem of issue definition. Mediators, on occasion, may use language that is more biased toward the interests or values of the party they are talking with in a in the caucus to influence that disputant's decision making. He or she may use the same terminology, syntax, and emotion as the party to promote identification between party and mediator, thereby easing the way to agreement on reaching an agreement on the framing or reframing of disputed issues. Mediators should take care, however, that the way they speak in a caucus is not drastically different from the way they speak in joint session. Otherwise, parties may be confused or feel double-crossed by the shift to more impartial language when they return to joint session.

Mediators, Framing and Reframing
When negotiators frame issues in a way that facilitates productive problem solving, the mediator may be merely an interested observer. However, some disputes become deadlocked because disputants have not discovered mutually acceptable definitions or framing of the issues that will allow them to cooperate in finding viable solutions for them. At this point, the mediator's intervention can be invaluable.

Mediators can either preempt problematic framing of topics for discussion by suggesting general frameworks within which parties propose issues for discussion, such as requesting that parties first suggest topics they believe that all parties are likely to want and agree to talk about, or assist parties in reframing topics when their definition is not mutually acceptable.

It should be noted that framing and reframing, by either the parties or intermediary, happens throughout the negotiation and mediation process.

Framing and Reframing Broad Topic Areas for Discussion
The initial focus of negotiations may vary considerably in terms of the way parties define what is to be discussed and resolved. This may be related either to the broadest framing of topics or the framing of more specific issues or subissues.

A broad frame is the most general description of a topic or problem to be discussed and resolved. For example, in the Whittamore-Singson dispute, in his opening statement Whittamore may frame the problems to be addressed as how to redefine his terms of employment in the contract, enable him to remain in town so that he can be close to his children and allow him to open a new medical practice. Singson may see the broad frame and define problems to be addressed as enforcing the existing terms of the contract, preventing losses of revenue to the clinic due to the departure of the doctor and the costs of recruiting a new one, and defining the penalty that Whittamore will pay. These two framings, while not totally mutually exclusive, will have to be reconciled to create a mutually acceptable definition of the topics and issues to be addressed and a negotiation agenda. The parties may accomplish this goal on their own after some discussion of the content of their opening statements and their general goals, or may at this time need some assistance from the mediator to develop a mutually acceptable broad frame that also includes the issues, needs, and interests they want and need to address.

In the Whittamore-Singson situation just described, the mediator might suggest that there appear to be a number of ways to tackle the issues and concerns raised by the parties, and that they might need to look at several different options for framing or reframing the broadest definition of their issues and how they might resolve what each entails. One possibility might be for the doctor to leave town, and consider the implications and impacts that option would have on all concerned. Another possibility that might be explored would be for the doctor to leave the clinic, remain in town, practice medicine, and work on a mutually acceptable agreement on termination of the contract and any penalty that might be paid. A third option would be to explore whether there are any ways for the doctor to remain at the clinic until the end of his contract and avoid some of the interpersonal contacts and problems that he and his wife are having, and minimize any discomfort felt by staff members. Each of these possibilities is a broad and different framing with implied issues that Whittamore and Singson might choose to address. Upon hearing these framings, Singson and Whittamore may agree to look into each of them and see if one might be viable to pursue. They might agree to discuss the doctor leaving the clinic and area last, as this is likely to be the least acceptable to all concerned, and would be selected only if they could not develop satisfactory options to respond to the other two alternative framings of their problems.

This example illustrates how a mediator can help think about, discuss, and propose one or more broad framings of issues to be addressed, and then work with the parties to develop an agenda and sequence for discussion.

Developing the Agenda
Once parties have reached a general level of agreement on the framing of the broadest focus for their discussions, they will need to identify and agree on specific issues to be addressed. The potential agenda developed by the mediator prior to negotiations is merely a draft that will likely need be revised based on information provided in the parties' opening statements. The agenda that disputants ultimately follow should be developed and approved by either the parties alone, the parties in conjunction with the mediator, or by the mediator alone (with the consent of the parties).

At the end of or shortly after the parties' opening statements, the disputants, on their own or with the mediator's help, will have discussed and reached an agreement on the general broad frame of the problem or problems to be addressed. In addition, either one or more parties or the mediator will have made a summary of issues or subissues to be explored. The next step is to put them in an order that will result in productive talks. (As in reaching agreements on the broadest framing of topics for discussion, the parties and mediator may also have to reframe specific issues to make them more acceptable for inclusion in future talks; however, in this section we will be looking at strategies for sequencing issues.)

There are at least eight approaches for sequencing agenda items for negotiations: (1) ad hoc, (2) a simple agenda, (3) alternation of issues, (4) ranking by importance, (5) a principled agenda, (6) “easier items first,” (7) building-block or contingent agenda, and (8) trade-offs or packaging.

Ad Hoc Development
With ad hoc sequencing, one party proposes discussion of a specific topic and the other party or parties concur. The item is discussed in its entirety until a conclusion has been reached. The parties then mutually agree to talk about another topic, and the process is repeated. The parties move through all items in this manner. This model allows flexibility but also permits and opens the possibility of manipulation by parties for placement of agenda items at particularly opportune moments that are in one or another's favor.

Simple Agenda
In the simple-agenda method, multiple topics or issues for negotiation are taken one at a time, in an order proposed by one or more parties. Typically, each issue is addressed and settled separately from others. (Often, the party proposing the agenda will have sequenced items for discussion in a manner that will be advantageous to achieving benefits for him- or herself.) Gulliver (1979) notes that although this process may be used successfully for decision making in committees and conferences, it rarely works very well in negotiations. The chief reason is that the method attempts to ignore that issues are often connected, and that one issue may not be resolved in a satisfactory manner without considering the resolution of others. In short, it may inhibit links or trades between how different issues and interests are satisfied. Parties are often aware of this dynamic and are unwilling to forfeit advantages that might be gained by getting better terms on one issue by trading something on another. They commonly wish to explore interconnections without the rigidity of a fixed agenda order.

In addition, the simple-agenda approach may encourage stalling and manipulative tactics in order to gain leverage on items that will come up later on the agenda. Gulliver notes that this procedure tends to subvert the ordering almost immediately.

Alternation of Issues
A third model for agenda construction is the alternating-issue approach. In this method, the parties alternate in choosing the topic of discussion. This structural solution allows the parties to proceed and often inhibits development of deadlocks. However, Gulliver (1979) notes that this process rarely works for long, because one or more parties invariably insist on breaking the order to focus on a second one of their issues after a previous one has been discussed.

Ranking by Importance
A fourth model of agenda design is for parties to pick the one or two items that both consider of greatest importance and place them at the head of the agenda (Gulliver, 1979). The assumption is that if they can agree on these items, agreement on the less important ones will follow suit. This procedure depends, of course, on the ability of the parties to agree on the most important issues and the order in which they will be addressed. There is evidence that this approach is best used when no claims or counterclaims are made or no offense has been alleged, as when parties are attempting to establish a new relationship where only a limited one has existed before.

Principled Agenda
A fifth approach is to define issues in terms of principles or general levels of agreement that will guide the decisions on specific items. The parties jointly establish the principles and then work out the details of how the principles will be applied on specific agenda items (Fisher and Ury, 1991). For example, in mediated negotiations by the author and a colleague between multiple telecommunications companies, a public utilities commission, and consumer groups over access charges on interstate phone lines, all parties agreed that universal telephone service—the provision of access to telephone service to all subscribers regardless of their income—should be maintained. This agreement in principle became the basis for identification of subsequent agenda items in which the negotiators discussed how universal service could be financed.

In general, this procedure only works when parties are willing and able to negotiate at a high level of generalization or abstraction, and when they are willing to defer decision making on minor issues until later.

“Easier Items First”
A sixth method of agenda formation is to identify issues about which the parties will most likely reach agreement and that will probably not take long to discuss and settle. These issues are often small, self-contained, less emotion-laden, and not symbolic in comparison with other potential topics that might be discussed. Some of these simple items may be placed at the beginning of the agenda and others alternated with more difficult items to (1) ensure agreement on some issues early in negotiations; (2) promote a habit of agreement; (3) create a number of agreements that parties may be reluctant to lose as the result of an impasse later on; and (4) identify topics that may be deferred, traded, or dropped, after they have been discussed, as a demonstration of good faith.

This strategy is contingent on the ability of the parties to mutually identify simple issues, which is usually accomplished by trial and error. Alternatively, the mediator may ask parties to identify issues on which they feel agreement may be achieved with little effort.

Building-Block or Contingent Agenda
A seventh method of agenda construction is the building-block approach. In this process, a party or parties identify which issues must be addressed and agreed on first, to lay the groundwork or foundation for later discussions and decisions. Agenda item sequencing depends on which agreements are contingent on previous ones. Contingency may be based on principles, time, payment schedules, and so on. This approach, although fairly complicated and dependent on a high degree of party coordination, can prevent deadlocks that may result from a more random sequencing of issues.

Trade-Offs or Packaging
The final approach to agenda formation is issue trading or packaging. Parties in dispute are sometimes reluctant to sequentially reach final agreement on issues one at a time, for fear that they may need one or more of them for leverage later in negotiations or to link and trade with others to form a settlement package. To avoid this problem, parties may want to discuss multiple issues simultaneously and explore a range of potential settlement options, but not make any final decisions until all have been fully considered. As discussions proceed, parties may identify potential links and trades involving different issues, needs, or interests, and make proposals to each other for possible agreements.

A more elaborate linkage approach to agenda development and discussions involves developing packages that combine solutions to all issues together in a comprehensive settlement. The basic process is the same as in linking and addressing several issues together, except that the outcome is a single all-inclusive proposal or settlement.

Packaging a proposal containing solutions to multiple issues has advantages as an agenda-forming tool: it demonstrates a willingness to trade satisfaction of issues and interests and meet the other party's needs; it may induce another disputant to generate alternative packages; it demonstrates that some concessions are possible if they are linked with specific gains; and it can eliminate some of the difficulty, at least for one party, of producing settlement options for individual issues or a combination of issues. However, a package does have drawbacks. It may be seen as a way of forcing an unfavorable settlement or denying a party the chance to participate in consensus or settlement building if the package is developed by only one party. A way to circumvent these drawbacks is to present a series of small packages for consideration that are not as comprehensive and are less likely to produce resistance. More will be said about developing packages in Chapter 15.

All of these agenda development procedures can be initiated by the parties or the mediator. However, because reaching an agreement on an agenda often requires significant coordination between parties, which they may not be able to achieve on their own, they may need the assistance of the intermediary to develop an acceptable sequencing of items for discussion.

The mediator may need to suggest one or more procedures that in his or her judgment will best facilitate future discussions of relevant topics and issues. He or she should suggest them, outline some of their merits (and potential drawbacks), and then facilitate a discussion by the parties to reach an agreement on the approach. However, in making proposals on potential sequencing, the mediator should avoid being perceived as forcing a specific process or sequence on the parties (Fisch, Weakland, and Segal, 1982). This situation can only result in loss of credibility, decreased acceptability, more disputant resistance, and less effective later interventions.

If there is resistance on the part of one or more parties to the mediator's suggestion regarding an approach for agenda formation and sequencing, he or she may decide to accede to their wishes and encourage them to negotiate using their preferred method. However, selecting this latter strategy must be carefully weighed against potential damage to the parties' relationship from failure to reach a procedural agreement on an agenda, or future difficulties in discussing issues of importance to them.

Handling Difficult Framing and Agenda Develolpment Issues
Earlier in this chapter, we discussed the need for parties, in their opening statements and subsequent development of a mutually acceptable agenda, to reach agreements on the broad framing of issues. If disputants generally agree on the parameters of what is to be negotiated, accomplishing this task may not be too difficult. If they don't, it may be highly problematic. One major cause of potential problems is the difference between consensual (interest-based) conflicts and dissensual (potentially value-based) conflicts (Aubert, 1963).

Consensual or Interest-Based Conflicts
Conflicts of interest commonly exist in conditions of perceived or actual scarcity, where disputants are negotiating over the same or similar resources and are striving to acquire as many or as much of the desired assets as possible. Such disputes are often characterized by beliefs that a gain for one party requires a loss for another, but at the least, a compromise may be possible. Conflicts of interest are often referred to as “competitive cooperation,” in that the disputants are collaborating to compete for potentially the same set of benefits. Because there are numerous types of interests that any given party may have in a dispute, there is often great latitude in trading satisfaction of one set of interests for another so that all parties can reach and accept a settlement.

Dissensual or Potentially Value-Based Conflicts
In contrast to conflicts of interest, in which a consensus generally exists between parties about competition for a desired end result or where there are enough different interests to facilitate trading to achieve some satisfaction and minimize losses for all concerned, are dissensual conflicts. These disputes are generally characterized by parties arguing over very different goals that are potentially mutually exclusive. They are often rooted in potential, if not actual, differences in values or major end goals.

Many dissensual or value-based disputes focus on such issues as guilt and innocence, what norms should prevail in a social relationship, what facts should be considered valid, what beliefs are correct, who merits what, and what principles should guide decision makers. Parties who frame their differences in these terms often can only see outcomes in complete wins or defeats, or in terms of yes-or-no decisions.

Examples of framing dispute as dissensual conflicts have occurred over a pending decision by a local government and its social service agency to build a shelter for the homeless in a middle-class neighborhood, whether to cut down an irreplaceable old-growth forest, whether divorcing parents should invite new lovers over when their young children are living in their residence, or whether a party should be punished for committing a theft (as opposed to being compelled to make restitution). These are all disputes that are commonly framed by involved parties in terms of actual or potentially conflicting values.

Dissensual conflicts rooted in different values are usually extremely difficult to frame, reframe, and resolve. Parties rapidly become intransigent and deadlocks may quickly emerge. When this happens, disputants may need the assistance of a mediator to help them reframe their dispute and to develop an acceptable framing and procedure to try and resolve their differences. Let's take the example of the siting of a homeless shelter to further explore potential mediator strategies.

In this example, a dispute developed between the members of a homeowners association and a city government's social service agency that is planning to site a homeless shelter in the group's middle-class neighborhood. As the dispute evolves, the involved parties have very different conceptual views of how the broader conflict and related issues should be framed, and of potential procedures and options for resolution.

The neighbors, who oppose siting the shelter in their neighborhood, define the boundaries for topics under discussion, or potential nondiscussion, as whether the shelter should be located in their neighborhood (and for a few the group's more extreme members, whether the service is needed at all, should be provided by local government, and paid for by their taxes—“After all, the homeless don't pay taxes”).

In contrast, the clinic staff is probably not interested in whether the facility should be sited in the neighborhood, but how a building can be leased, how services can begin to be provided to its clientele, and how to make community members see and respect this need.

These diverse views, definition, and framing of the broad problem to be addressed, and its framing in terms of whether something should or should not be done (which is potentially based in conflicting values) or how (potentially based on conflicting interests), makes possible resolution very difficult. Left to their own devices, the parties may have to resort to a vote by the city council, a referendum, potential lawsuit, or direct action (on the part of the neighbors) to try to achieve their goals.

So what might be done? Reframing dissensual or value-based conflicts into consensual or interest-based ones is not easy, as parties holding strong values may see this shift as a sacrifice of principles. Nevertheless, this reframing is not impossible. Described here is one approach to our example situation. Others will be presented in Chapter 17. If a mediator was called in to assist the city and community to address and find solutions to potentially resolve the conflict over the homeless shelter, he or she might begin by looking at how it might be reframed and explore whether a reframe was possible. The mediator would begin by identifying and discussing all parties' issues, interests, and concerns in private meetings with the neighborhood association, the social service agency, and the city government. He or she might also explore each of the parties' Best Alternative(s) to a Negotiated Agreement, some of the options identified earlier, and the parties' likelihood of prevailing and getting the outcome that they most want. Especially if the outcome is highly unpredictable, the mediator may try to move the framing of the conflict and related issues to be discussed from a dissensual definition to a consensual and interest-based one.

In a separate meeting, the mediator might say to the neighbors opposed to the siting:

I know that your group really believes in your cause and goals, and that it is highly important to you. We also know that the outcome of this dispute is highly unpredictable, and that a loss for either party would be hard to accept. The dilemma that both you and the social service agency face is whether there is a way to achieve your goals and at the same time satisfy those of the other party. The issue of whether the facility should be sited in this particular neighborhood is an important one to address, and at the same time, we need to acknowledge that the economic situation here clearly has likely created a need for the proposed services. I'm wondering whether each of you would be willing to put a hold on the question of “whether” the facility should be sited in this neighborhood; examine the worries, concerns, and fears about what might happen if it was sited there and why the agency thinks that this is the best location for it; and explore what might be done to address these different needs and interests. After this discussion, we can return to the question of whether the facility should be sited at its proposed location, or another one that might be mutually acceptable. If some of the solutions we develop make the siting at the current location acceptable, we can propose to the city that it adopt and implement them. If not, ideally, both parties will make a common recommendation on an alternative that everyone can accept.

A similar discussion and proposal would be made by the mediator to the city and social service agency in another separate meeting, where he or she would ask them to hold in abeyance the “whether” question on the siting, explore the “how” question, and then decide what to do.

Although this reframing of the broad parameters of the conflict may help at least some members of the neighborhood group, city, and social service agency discuss and reach an agreement on contested issues, it may not be acceptable to all concerned. In this event, those who can talk about potential consensual and interest-based solutions should develop the best integrative agreement possible and submit it to the city council for a final decision. Ideally, if many of the parties' interests are addressed and met, the outcome may be better than if the dispute remained dissensual and one or the other of them totally won or lost.

Cultural Approaches to Agenda Formation
The culture or cultures of the parties or mediator may significantly influence the process of opening statements, defining or framing issues, setting an agenda, and sequencing the discussion of individual topics. It is important for an intermediary to help develop or propose procedures to accomplish these tasks that will be both culturally appropriate and acceptable to the parties. In one case I mediated, a rapid shift in the agenda development and implementation process was necessary to adapt to the specific professional culture of the parties.

I was asked to intervene in a university graduate department of psychology that was experiencing significant turmoil. The chair of the department had been removed after a conflict between faculty members, and now factions within the department were sabotaging each other and rendering departmental decision making impossible. Tasks and assignments would be delegated to a faculty member, and when he or she did what was assigned the results would be rejected, passively resisted, or publicly criticized by other department members.

The acting chair and a number of his colleagues asked me to conduct interviews with all key parties, assess their willingness to talk about departmental problems, develop a proposed agenda, and convene a meeting to address identified problems. After conducting numerous individual sessions with faculty members, I convened a meeting where I reported back on the results and suggested an agenda for future dis­cussions that incorporated the topics that the parties had specifically identified as being important. The group immediately balked at the proposal and announced that they were not ready to talk about these issues, even though they themselves had suggested the topics and had individually approved the agenda. I thought I recognized a pattern that many people identified in the interviews, but I decided not to oppose their resistance. I chose instead to ride the horse in the direction that it was going and asked them what they wanted to do.

Finally, one person said that she would like to spend the next hour just “talking about our feelings.” Although this approach could have represented avoidance of issues, I recognized that many of the department's members were clinical psychologists, and what they wanted, at least initially, was an approach to agenda development that was probably more akin to a group therapy session than a problem-solving mediation—that is, they wanted to be “in their culture” with their dispute, working on feelings first and insights or issues later. I agreed to facilitate the meeting but suggested that they might follow some ground rules, such as talking only about their own feelings and not attributing motives or attacking others. They agreed, and we proceeded.

During the hour that they talked, I recorded some of their feelings and related issues and interests on a flipchart, and at the conclusion of this phase of the meeting they asked me to summarize. I related the history of the conflict as a group story and outlined how it made different people feel, the issues that it raised, and some of the interests that would have to be addressed to resolve past hurts and move ahead to resolve issues of importance and build and better relationships. The group affirmed the summary and agreed to move ahead to problem solving on the issues.

By settling into the group's culture and using its familiar norms and procedures, we were able to develop a more acceptable agenda, define issues out of a discussion of past pain, and jointly move forward to both problem solving and clearing the air for potentially more positive relationships.

There are a number of cultural variations in issue identification, framing, reframing, and agenda development. Some cultures—such as those of a number of traditional Native Americans, First Nations, New Zealand Maori, and other aboriginal tribes or bands—often identify issues through storytelling: a respected party tells the history of the problem and the people involved almost in the manner of relating a legend or odyssey. The issues and interests are encapsulated in the tale being told. The parties then use a fairly circular process to discuss and resolve them, often utilizing the link and trade or package approach described earlier.

Members of indirect-dealing cultures, or those that often try to avoid overt disagreement or conflict, identify issues and set agendas in a variety of ways. Some Asian cultures that are not direct-dealing do not want to identify conflict issues at all, and will talk about them, at least initially, in very oblique terms and in a circuitous manner. Members will often say that there are “difficulties” or “inconveniences” that need to be considered. Only after long and often circular discussions and what may appear to nonmembers to be a fairly nonlinear agenda will issues be more fully described, or understood indirectly, and potential solutions developed.

Lederach (1988) also noted this indirectness in Costa Rican disputants. Parties used the framing and words “nails” and “entanglements” to describe issues, problems, or conflicts (the term “conflict” being reserved for violent physical confrontations), and again discussed them in a more circular rather than linear agenda. Members of other indirect-dealing cultures talk about conflict in metaphors or may attempt to distance themselves from the problem by talking about the people involved in the third person. Yet other indirect-dealing parties, who highly value the preservation of relationships and face, prefer agendas in which they talk first about a variety of issues that are not conflict-related, especially those that may affirm the parties' past and future relationships, and only gradually approach areas of disagreement. Easy and less con­tentious issues are dealt with initially; and only later, after some good feelings have been created and progress made on simpler problems, are harder issues tackled.

Direct-dealing cultures may identify issues and set agendas in a variety of ways, among them linear and explicit presentations, brainstorming (identifying and listing issues without immediately discussing or evaluating them), enumerating all topics for discussion on a handout distributed to all parties, listing issues on a wallchart, making specific proposals or advocating specific solutions rather than identifying issues, and proposing principles before identifying specific topics for discussion.

Mediators working with parties from a single culture need to develop issue-identification and agenda-setting procedures that are culturally acceptable, and when working across cultures should help coordinate different and often somewhat incompatible approaches. There are a number of ways to accomplish this:

Being familiar with the approaches commonly used in the parties' cultures
Interpreting and explaining to other parties the rationale for the diverse approaches to agenda development that are being used
Listening carefully to the parties and articulating issues and concerns in ways that respect sensitivity to overt disagreement and norms regarding explicitness
Drawing out issues from stories, making them more explicit, and then suggesting ways to discuss them
Facilitating discussions on how issues will be identified and agendas developed