Before looking at mediation in detail, this section draws some comparisons between negotiation, litigation and mediation.
Negotiation
Negotiation is often the best, most economical and satisfactory way of resolving a dispute. Negotiation is an everyday activity; some is not recognised as negotiation at the time, and most of it is effective. It is a skill that is central to human interaction and yet has only relatively recently been studied, analysed and refined. Direct negotiation requires the negotiators to communicate with each other about the dispute and about their willingness to compromise.
Negotiation is usually possible where all or most of the following circumstances exist:
There are two recognised core strategies for negotiating:
Positional negotiation
Positional or competitive negotiation is the traditional strategy in the business environment, as well as in political and even social arenas.
The key characteristics of this strategy are:
Negotiators deploy a range of tactics to improve the results of positional negotiation:
Positional negotiation is often affected by whether or not the parties will meet again. One-off deals are likely to make parties tougher, more willing to risk the possible downsides of positional negotiation, and more extreme. The result is not necessarily any different, but restraint is reduced and regard for the other party is less of an influence. Negotiators familiar with each other can develop ritual behaviours that become almost a game.
There are many other factors that influence a positional approach, including ego, peer pressure, the need to preserve reputations, and concern for job security or financial targets. The result is sometimes mistrust, damaged relationships, inefficient outcomes and even retaliation.
Interests-based negotiation
Interests-based, also known as principled or collaborative negotiation has emerged as an alternative strategy of co-operative negotiation. Probably the most influential event in establishing an alternative to positional bargaining was the publication in 1981 of ‘Getting to Yes’ by Roger Fisher and William Ury of the Harvard Negotiation Project.
The philosophy of interests-based negotiation proposes that, by treating negotiation as a genuine problem-solving opportunity, outcomes more satisfactory for both sides are likely to be achieved and at less cost.
‘Getting to Yes’ first introduced the concept of principled negotiation and describes an evolving strategy, the key characteristics of which are still relevant many years later. Interests-based negotiation seeks to improve the outcome of negotiations by:
Fisher and Ury argue that by adopting this approach, individuals can avoid some of the inefficient gamesmanship of competitive or positional negotiation, without being exploited.
This requires that the parties:
Interests-based negotiation is the basis of the mediator’s ‘neutral negotiator’ strategy.
However, positional negotiation also plays a part in the journey to settlement, and mediators should expect parties to move between these two approaches. It is quite usual for the mediator to work hard to encourage the parties to adopt a principled approach, to see what might be available as part of the settlement, including non-financial elements, and then for the parties to move back to positional bargaining in order to finalise a deal.
Why negotiations fail
Negotiations fail for a range of reasons, including distrust between parties or advisers, poor negotiating skills, lack of realistic risk assessment, heightened emotion and other blocks to communication. Sometimes negotiations stall because of the strategies adopted by the negotiators. Two positional negotiators might push themselves into impasse with brinkmanship, refusing to make an offer in case it indicates weakness, waiting until the steps of the court to make an offer, or testing the other side with a challenging formal offer which threatens costs consequences. Two interests-based negotiators might disagree on the objective standards by which to assess the value of their case.
The mediator has an important role, detailed elsewhere in the training, in helping parties to overcome these and other barriers to effective negotiation.
Mediation
Mediation has established itself as the leading Dispute Resolution process
Why mediation works
Mediation enables the parties to resume, or sometimes to begin, negotiations. The presence of a mediator changes the dynamics of the negotiation. The mediator brings negotiating, problem-solving and communication skills to the process, and deploys them from a position of independence and neutrality, making progress possible.
The mediator, as a neutral, can:
Besides being quick and cost-effective, mediation looks forward, encouraging the parties to turn from the history and focus on the future. Most disputes are resolved without continuing or creating a future relationship, but the prospect of a future without the dispute can itself be a powerful driver towards settlement.
In contrast to litigation and arbitration, mediation provides an opportunity for parties to control the outcome of their dispute, even when direct negotiations have failed.
Overall, the benefits of the mediation process include:
Satisfaction for the parties can be achieved in the resolution of disputes on three levels:
Mediation is probably the only dispute resolution process able to deliver satisfaction on all three counts.
Negotiation
Negotiation is often the best, most economical and satisfactory way of resolving a dispute. Negotiation is an everyday activity; some is not recognised as negotiation at the time, and most of it is effective. It is a skill that is central to human interaction and yet has only relatively recently been studied, analysed and refined. Direct negotiation requires the negotiators to communicate with each other about the dispute and about their willingness to compromise.
Negotiation is usually possible where all or most of the following circumstances exist:
- the parties can identify and agree on what issues are in dispute
- the interests, goals and needs of the parties are not entirely incompatible
- the parties need to co-operate to meet their goals
- external constraints, such as time, reputation, cost, and the uncertainty of an imposed decision, encourage parties to engage in a private, co-operative process
- the parties can influence each other to act in ways that provide mutual benefit or avoidance of harm
- the parties recognise that alternative procedures are not as desirable as negotiation, which, in particular, allows them to determine the outcome.
There are two recognised core strategies for negotiating:
- positional negotiation
- principled (also known as interests-based negotiation).
Positional negotiation
Positional or competitive negotiation is the traditional strategy in the business environment, as well as in political and even social arenas.
The key characteristics of this strategy are:
- each side takes its best (most extreme) position on what it demands or offers
- a period of justification follows, which usually entrenches the position
- parties haggle, and even threaten, bully, cry or lie, in an effort to extract movement or agreement from the other side
- concessions are exchanged, often grudgingly.
Negotiators deploy a range of tactics to improve the results of positional negotiation:
- posturing over positions or interests
- withholding sensitive information, such as any weakness in the case
- engaging in bluff or making threats
- waiting for movement from the other party - digging in or walking out
- never giving without getting
- making small concessions slowly.
Positional negotiation is often affected by whether or not the parties will meet again. One-off deals are likely to make parties tougher, more willing to risk the possible downsides of positional negotiation, and more extreme. The result is not necessarily any different, but restraint is reduced and regard for the other party is less of an influence. Negotiators familiar with each other can develop ritual behaviours that become almost a game.
There are many other factors that influence a positional approach, including ego, peer pressure, the need to preserve reputations, and concern for job security or financial targets. The result is sometimes mistrust, damaged relationships, inefficient outcomes and even retaliation.
Interests-based negotiation
Interests-based, also known as principled or collaborative negotiation has emerged as an alternative strategy of co-operative negotiation. Probably the most influential event in establishing an alternative to positional bargaining was the publication in 1981 of ‘Getting to Yes’ by Roger Fisher and William Ury of the Harvard Negotiation Project.
The philosophy of interests-based negotiation proposes that, by treating negotiation as a genuine problem-solving opportunity, outcomes more satisfactory for both sides are likely to be achieved and at less cost.
‘Getting to Yes’ first introduced the concept of principled negotiation and describes an evolving strategy, the key characteristics of which are still relevant many years later. Interests-based negotiation seeks to improve the outcome of negotiations by:
- negotiating on the basis of principles; focusing on interests not positions, and on needs not wants
- depersonalising a problem, preserving dignity and making possible a co-operative approach to problem solving
- separating the people from the problem; working hard on the problem, and being soft on the people
- establishing objective criteria and standards against which to measure any decision, unencumbered by subjective opinion.
Fisher and Ury argue that by adopting this approach, individuals can avoid some of the inefficient gamesmanship of competitive or positional negotiation, without being exploited.
This requires that the parties:
- identify or review their BATNA (Best Alternative To a Negotiated Agreement), as a firm foundation for negotiation and decision making, providing each party with a guide as to when negotiations should be terminated because a better result probably lies elsewhere
- invent options for mutual gain, such as payment in kind, future business, agreeing steps to protect reputation, or a particular timescale for action, and discovering how an outcome or deal can be established that meets both or all parties’ real interests. This has been developed in later literature into the concept of ‘creating value’ before ‘claiming value’; that is, extending the scope of the negotiations so as to include extra ideas or elements which can form part of the settlement, before agreeing who gets what
- seek to develop good relationships with the people on the other side; if deadlock occurs, they may reconsider their BATNA and reassess their risks, develop agreement on interests, or agree objective standards as a basis for settlement.
Interests-based negotiation is the basis of the mediator’s ‘neutral negotiator’ strategy.
However, positional negotiation also plays a part in the journey to settlement, and mediators should expect parties to move between these two approaches. It is quite usual for the mediator to work hard to encourage the parties to adopt a principled approach, to see what might be available as part of the settlement, including non-financial elements, and then for the parties to move back to positional bargaining in order to finalise a deal.
Why negotiations fail
Negotiations fail for a range of reasons, including distrust between parties or advisers, poor negotiating skills, lack of realistic risk assessment, heightened emotion and other blocks to communication. Sometimes negotiations stall because of the strategies adopted by the negotiators. Two positional negotiators might push themselves into impasse with brinkmanship, refusing to make an offer in case it indicates weakness, waiting until the steps of the court to make an offer, or testing the other side with a challenging formal offer which threatens costs consequences. Two interests-based negotiators might disagree on the objective standards by which to assess the value of their case.
The mediator has an important role, detailed elsewhere in the training, in helping parties to overcome these and other barriers to effective negotiation.
Mediation
Mediation has established itself as the leading Dispute Resolution process
Why mediation works
Mediation enables the parties to resume, or sometimes to begin, negotiations. The presence of a mediator changes the dynamics of the negotiation. The mediator brings negotiating, problem-solving and communication skills to the process, and deploys them from a position of independence and neutrality, making progress possible.
The mediator, as a neutral, can:
- win the trust of all parties
- facilitate communication
- focus the parties on the problem
- overcome emotional blockages
- help each party to understand the other party’s case
- probe each party’s case in private for interests and needs
- help parties assess their own weaknesses realistically and safely
- suggest new avenues to explore, including helping parties to create value l help parties to overcome deadlock
- save face for parties, including when needing to change their stance l explore settlement proposals in depth
- assist parties to frame settlement proposals effectively
- assess realistically the chances of settlement.
Besides being quick and cost-effective, mediation looks forward, encouraging the parties to turn from the history and focus on the future. Most disputes are resolved without continuing or creating a future relationship, but the prospect of a future without the dispute can itself be a powerful driver towards settlement.
In contrast to litigation and arbitration, mediation provides an opportunity for parties to control the outcome of their dispute, even when direct negotiations have failed.
Overall, the benefits of the mediation process include:
- providing a platform for the parties to express how they each see the situation and how they feel about it –
- restoring communication and providing a process for negotiation
- giving the parties a chance to decide for themselves a final and certain outcome.
Satisfaction for the parties can be achieved in the resolution of disputes on three levels:
- procedural
- emotional or psychological
- substantive, in terms of outcome.
Mediation is probably the only dispute resolution process able to deliver satisfaction on all three counts.
