This post continues our exploration of how mediators expertly facilitate party negotiations using the mediation theory and process. In lockdown, if we can enact some of the ways in which mediators practice their art, we can achieve more effective communications and negotiations. This means in turn that we will be better able to prevent, manage and resolve lockdown disputes and conflict.
The focus of this post is on the important distinction between positional and interest-based negotiations, and the techniques mediators use in supporting parties to help them focus on a more positive, interest-based approach. As we discussed briefly in post #9 a party’s position (what a party wants) is just the tip of the dispute resolution iceberg. It’s through identifying, acknowledging and exploring each of the parties’ priorities, needs and interests (why a party wants what they want) that the real magic of mediation comes into play.
Negotiation is a ubiquitous feature of life – we negotiate with ourselves, with friends and colleagues, with personal and business partners, with large corporations and with the state – and each of these entities negotiates with the others. Negotiation is also conceptually an intrinsic part of mediation. Mediation can be seen as an extrapolation of the negotiation process with the additional agency and expertise of a mediator’s interventions.
In mediated negotiations, mediators assist the parties to advance their rights and remedies, discuss their interests and priorities, and adjust their positions and strategies in efforts to achieve settlements and outcomes that are mutually agreeable – or at least something the parties can live with. It is because agreement only ensues once there is a level of consensus among the parties, that each party effectively wields a potential veto over any outcome. As a third-party helping professional, it’s a mediator’s expertise – their practice skills and techniques – that are the critical aspect of their intervention in a dispute that supports the parties in coming to a level of consensus. The ways in which mediators help parties to focus on interests as well as positions (rather than solely on positions) is instructive for how we can communicate and negotiate effectively in lockdown.
Mediation theory meets negotiation theory
In mediation theory, a distinction is usually made between different styles of negotiation. One of the key styles is the positional (or settlement) style. This approach is focused on the parties’ positions – that is, what the parties want. The other is the interest-based (or problem-solving) style – which is about addressing the parties’ priorities, needs and interests – that is, getting to the why question – what needs, emotions, concerns and so on sit behind what they want?
In positional approaches to negotiation, the parties often make extreme opening requests, sometimes called ‘ambit claims’, and attempt to persuade, coerce or deceive the other side into moving closer to this initial demand. They usually end up making incremental concessions towards a settlement figure somewhere between their original claims. Negotiation theorists Howard Raiffa, John Richardson and David Metcalfe in their famous 2002 work Negotiation Analysis: The Science and Art of Collaborative Decision Making have called this the ‘negotiation dance’. This approach is commonly focused on easily quantifiable factors, of which money is a favourite, and in practice it is often encountered in areas such as workers’ compensation or personal injury negotiations – although many other dispute contexts, such as commercial, contractual and matrimonial property disputes, can also be the subject of the use of this style.
Positional negotiation may involve sufficient concessions by the parties to result in a compromise settlement, or the incremental concession-making may falter before agreement and negotiations terminate without settlement. The compromise point, if any, is somewhere adjacent to the mid-point between the parties’ opening claims, the exact end location depends on their relative bargaining strengths, the techniques and strategies they deploy and their respective needs for resolution.
Positional negotiation can be a competitive and adversarial experience which assumes that resources are limited, that the parties’ goals are mutually exclusive and that a gain for one side will entail a loss for the other. It involves each negotiator using influential sources of power at their disposal, as well as tactics of persuasion, bluffing, threats, deception and demanding last-minute ‘add-ons’.
Unfortunately, it is rightly associated with legal cultures in which adversarial negotiation – and a focus on rights, duties and damages – can be a precursor to adversarial litigation. However, while there is evidence of positional negotiating behaviour in legal cultures, the efforts of non-adversarial lawyers, the ADR Research Network and others to include dispute resolution knowledge, skills and attitudes in lawyering and legal education make it dangerous to over-generalise on this point moving forward.
Interest-based negotiation approaches are preferred over positional methods in mediation. Dispute resolution experts advocate that interest-based negotiation is the more positive and holistic approach. Interest-based styles of negotiation look less at the parties’ positional and monetary demands and legal arguments, and more at the parties’ personal, business, reputational and other interests and priorities. This is done in a co-operative and collaborative way.
While acknowledging different, and at times competing party interests, interest-based negotiation attempts to identify goals that are not mutually exclusive and promotes outcomes which go beyond compromise and add value to all involved. This means moving away from zero-sum assumptions and game theories of negotiation, and instead trying to uncover the parties’ real personal and commercial interests, needs and priorities. Focusing on interests tends to move negotiations from a core monetary issue towards multiple subsidiary issues.
Interests in negotiation can be immediate and personal, such as saving face and being treated with dignity, or general and social, such as resisting business competitors or receiving public recognition. For example, in an apparently simple breach of contract claim for late supply of retail goods, the supplier or purchaser, or both, may have multiple interests: preservation of business reputations, avoidance of negative publicity, mutual exoneration from blame, validation for past conduct, preservation of commercial relationships, external approval for settlements, a fair negotiation procedure and mutually-appropriate timing, place and method of settlement payments. The range of diverse interests at the negotiating table increases the resources over which to bargain and trade and ultimately the value that is on the table for distribution among the negotiators.
While parties may indeed compete over certain interests, such as publicity versus privacy, some interests may dove-tail and others may overlap. Where, in the example above, parties might have become deadlocked if focused only on financial compensation, a broader appreciation of personal, commercial, procedural and relational interests could provide a platform for constructing creative solutions which meet as many current and future needs as possible.
Interest-based negotiation does not, however, imply simplistic surrender on substantive issues. Rather, it requires the development of productive working relationships in which the parties share information, disclose their own interests and attempt to accommodate the other side’s, communicate constructively and otherwise negotiate in problem-solving ways. To promote interest-based negotiation in deep-seated conflicts, mediators help parties to shift from a competitive bargaining to a collaborative analytical and problem-solving approach, and to commit themselves to a genuine exploration of a wide range of possibilities.
Learning lockdown communication strategies from the art of interest-based negotiation in mediation practice
As home-based negotiators and communicators in lockdown, what we can learn from the art of mediation is that we need to ask more than one question when we are communicating and negotiating with others. We certainly need to understand what we and the other person wants. But we also need to ask the why question. Why do we/they want that? What are our/their priorities, needs and interests? Is there a creative way to mutually satisfy the needs and interests of each of us?
In addition, we need to engage with our dispute resolution agency. It’s in our power to create productive working relationships with our families and our colleagues (and others outside the home). We need to actively share information, disclose our interests and attempt to accommodate the other side’s. We need to work on communicating as constructively and positively as possible and to adopt problem-solving ways. We need to intentionally shift from a competitive bargaining approach to an analytical, problem-solving approach. And we need to commit ourselves to a wide exploration of a spectrum of potential possible solutions and outcomes. If we need outside help with these things, we need to seek that out. A register of nationally accredited mediators is available via the Mediator Standards Board.
Ultimately the relationship between cooperation and competition in negotiation and dispute resolution processes is complex. If we are collaborative on our own we are likely to be exploited – therefore self-interest requires some level of competitiveness. If, however, we – and the person on the other side of our communications or negotiation – are persistently competitive, we could both suffer loss through high opportunity costs, protracted disputation, bedeviled relationships or the loss of the value of what is being contested. How to move from individual self-interest to mutual trust and collaboration is a strategic challenge in any negotiation. When expert mediators aren’t in the house or virtual office to help us with that process – the responsibility to work it out falls to us.
This is a challenge – but it’s one we can meet!
Endnote: If you are interested in training to be a mediator there are many training options available. I have the privilege of being a co-director with Associate Professor Libby Taylor of the Bond University Dispute Resolution Centre (DRC – started by Laurence Boulle and others in 1989). At the DRC we run short courses in mediation and family dispute resolution. You can see the schedule for courses coming up here. During COVID-19 lockdown all courses will be conducted online.
Tomorrow’s Blog: Learning from the art of mediation – additional mediator functions in negotiation.
The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) 174-180. Laurence is an esteemed member of the ADR Research Network and has long been a leader in the Australian and international dispute resolution communities.
Howard Raiffa, John Richardson and David Metcalfe, Negotiation Analysis: The Science and Art of Collaborative Decision-Making (Harvard University Press, 2002).
Positions and interests image 1: Gary Tremolada
Agreement image: steemit