FAQs about Negotiation, Mediation, Arbatration and Litigation

by James Melamed

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

Q: What is Negotiation?

A: There are two principle negotiation theories and strategic approaches to negotiation:

competitive or positional negotiation;
integrative or problem-solving or interest-based negotiation.

Distinguish Strategic Approach from Personality

While there may be some correlation between negotiation approaches and personality style, the two do not necessarily go together. For example, a competitive negotiator may be very "pleasant" to work with in terms of demeanor, but utilize extremely competitive tactics. In fact, a negotiator's pleasantries may themselves be part of an overall manipulative approach! A problem-solving negotiator may, on the other hand, be rather ornery in terms of their personality, yet effectively utilize interest-based, problem-solving strategies in negotiation.

The Best Negotiators Will Have Both Sets of Skills

It is also important to appreciate that the most effective negotiators will have a wide array of negotiation skills, both competitive and problem-solving, and will effectively mix and match these approaches depending upon what the negotiator believes will work best with a particular "negotiating partner" depending on the specific issue being negotiated and depending on the nature of the overall negotiating relationship (one-time transaction or continuing relations).

Strategies to Create Value and Claim Value

Another view of negotiation is that certain strategies and behaviors are intended to "create value" (integrative approaches) whereas other strategies and behaviors are intended to "claim value" (be that by competition or principle).

Dispute Negotiation and Transactional Negotiation

Also notice that negotiations may be divided into two types:
dispute negotiation, focused on resolving past facts; and
transaction negotiation, focused on reaching agreement for the future.

While it is often helpful to appreciate this difference between dispute negotiation and transaction negotiation, it is also beneficial to appreciate that many negotiation situations involve the resolution of both past issues as well as planning future relations.

The Competitive Approach

Competitive negotiation strategy is, essentially, a manipulative approach designed to intimidate the other party to lose confidence in their own case and to accept the competitor's demands. This approach is characterized by the following:
High opening demands;
Threats, Tension and Pressure;
Stretching the facts;
Sticking to positions;
Being tight lipped;
Want to outdo, outmaneuver the other side; and
Want clear victory.

When a competitive negotiator is asked how they will know that they have reached a good agreement, they may reply that the agreement is "better than fair."

Assumptions of the Competitive Approach
There are certain assumptions, a world view really, that lie behind the competitive approach to negotiation. This "distributive" world view includes the following assumptions: Negotiation is the division of limited resources;
One side's gain is the other's side's loss; and
A deal today will not materially affect choices available tomorrow.

Risks of the Competitive Approach

While competitive negotiation tactics are often effective in "claiming" already defined value, there are also certain risks to competitive negotiation. Foremost among these risks are damage to the negotiating relationship and a lessened overall likelihood of reaching agreement. Here is a list of the disadvantages of the competitive style:
Confrontation leads to rigidity;
There is limited analysis of merits of dispute and relevant criteria for resolving issues;There is limited development of solution alternatives;
It is hard to predict the outcome of the competitive approach or control the process;
Competitors are generally blind to joint gains;
Competitors threaten their future relations; and
Competitors are more likely to have impasse and increased costs.

The Integrative Approach

The integrative, collaborative or problem-solving approach to negotiation has been described as "enlightened self-interest," rather than the "egocentric variety." This approach consists of joint problem-solving, where gains are not necessarily viewed as at the expense of the other party.

Assumptions of the Integrative Approach

As one might expect, there is a different world view behind the integrative approach to negotiation. The primary assumptions of the integrative approach are the following:
Some common interests exist between parties;
Negotiation is benefited by a full discussion of each participant's perspective and interests; and
We live in an integrated and complex world and our problems can be best resolved through application of our best intelligence and creativity.

Risks of the Integrative Approach

Risks of the integrative approach are based upon the common sense observation that "it takes two to collaborate." If one party is unwilling to participate in integrative, problem solving negotiation, the more collaborative negotiator may be at risk in the following ways:
The negotiator will be forced to either "give in" or adopt a competitive stance;
The negotiator may experience a failure if they do not reach agreement; and
The negotiator is somewhat at risk in honestly disclosing information if that is not reciprocated.

Principled Negotiation

In their book, Getting to Yes, Fisher and Ury set forth their concept of "Principled Negotiation." Here is a brief summary of the main points of principled negotiation:

Separate the People from the Problem

Fisher and Ury suggest that we are all people first -- that there are always substantive and relational issues in negotiation and mediation. The authors describe means of dealing with relational issues, including considering each party's perception (for example by reversing roles); seeking to make negotiation proposals consistent with the other party's interests; making emotions explicit and legitimate; and through active listening.

Focus on Interests, Not Positions

Positions may be thought of as one dimensional points in a space of infinite possible solutions. Positions are symbolic representations of a participant's underlying interests. To find out interests, you may ask questions like: "What is motivating you here?" "What are you trying to satisfy" or "What would you like to accomplish?" You may also ask: "If you had what you are asking for (your position), what would that experientially get you - what interests would that satisfy?"

In negotiation, there are multiple, shared, compatible, and conflicting interests. Identifying shared and compatible interests as "common ground" or "points of agreement" is helpful in establishing a foundation for additional negotiation discussions. Principles can often be extrapolated from "points of agreement" to resolve other issues. Also note that focusing on interests tends to direct the discussion to the present and future, and away from the difficulties of the past. If we have learned anything about the past, it is that "we can not change it." The past may help us to identify problems needing solution, but, other than that, it does not tend to yield the best solutions for the future.

Invent Options for Mutual Gain

Before seeking to reach agreement on solutions for the future, Fisher and Ury suggest that multiple solution options be developed prior to evaluation of those options. The typical way of doing this is called brainstorming. In brainstorming, the parties, with or without the mediator's participation, generate many possible solution before deciding which of those best fulfill the parties' joint interests. In developing options, parties look for mutual gains.

Select from Among Options by Using Objective Criteria

Using objective criteria (standards independent of the will of any party) is where the label "principled negotiation" comes from. Fisher and Ury suggest that solution selection be done according to concepts, standards or principles that the parties believe in and are not under the control of any single party. Fisher and Ury recommend that selections be based upon such objective criteria as precedent, tradition, a course of dealing, outside recommendations, or the flip of a coin.

What if They are More Powerful? - Developing a BATNA

In the event that the other party has some negotiating advantage, Fisher and Ury suggest that the answer is to improve the quality of your "best alternative to a negotiated agreement" (your BATNA). For example, if you are negotiating for a job and want to make a case for a higher wage, you improve your negotiating power by having another job offer available, or at least as a possibility.

What if They Won't Play or Use Dirty Tricks?

Fisher and Ury's answer to the resistant competitive negotiator is to "insist" on principled negotiation in a way that is most acceptable to the competitor. The principled negotiator might ask about the competitor's concerns, show he or she understands these concerns, and, in return, ask the competitor to recognize all concerns. Following the exploration of all interests, Fisher and Ury suggest inducing the competitive negotiator to brainstorm options and to think in terms of objective criteria for decision-making. Another way of thinking about encouraging principled or integrative bargaining is to think in terms of matching, pacing, leading and modeling. To get a negotiator to shift orientations, it is critical that they first experience themselves as fully heard in terms of content, intensity and emotion. By so matching and pacing with a negotiator (asking a few clarifying questions), the negotiator will become more open to your lead and modeling of productive means of negotiating. Negotiation Power

Negotiation power

can be defined as "the ability of the negotiator to influence the behavior of another. Commentators have observed a variety of aspects and qualities of negotiation power. It is important for the mediator to take note of these various aspects and qualities of negotiating power as a means of assisting each negotiating party to be at his or her best in representing his or her interests in mediation. Here are a number of aspects and qualities of negotiating power that have been identified:
Negotiating power is relative between the parties;
Negotiating power changes over time;
Negotiating power is always limited;
Negotiating power can be either real or apparent;
The exercise of negotiation power has both benefits and costs;
Negotiating power relates to the ability to punish or benefit;
Negotiating power is enhanced by legal support, personal knowledge, skill, resources and hard work;
Negotiating power is increased by the ability to endure uncertainty and by commitment;
Negotiating power is enhanced by a good negotiating relationship;
Negotiating power depends on the perceived BATNA; and
Negotiating power exists to the extent that it is accepted

Overall Problem-Solving Negotiation Structure

As an overall model for effective problem-solving negotiation, please consider the following:
Informed Consent as to Process (the process is always negotiable)
Sharing Perspectives (separate relational issues from substantive issues. Discuss both, just separately.)
Remember the Common Ground (common interests, interdependence and easy points of agreement)
Establish a Problem-Solving Agenda (questions seeking solutions: "How can we best . . .?" or "What is the best way for us to . . .?")
Identify Desired Information and Documentation Clarify Desired Outcomes, Interests and Positive Intentions Develop Options (develop options based upon outcomes, interests and positive intentions)
Select from Options (Easy agreements and package deals)
Integration and Finalization (Any possible improvement? What else needs to be done?)
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Q: What is mediation?

A: Facilitated Communications for Agreement or Facilitated Negotiation

Central to mediation is the concept of "informed consent." So long as participants understand the nature of a contemplated mediation process and effectively consent to participate in the described process, virtually any mediation process is possible and appropriate. In terms of generally describing the mediation process, the following concepts may be helpful.

Qualities:

Voluntary
You can end the process at any time for any reason, or no reason. If you are thinking of leaving, you are encouraged you to speak up and let the mediator know why. The reasons that you are thinking of leaving can become conditions for your continued participation. For example, if you are thinking of leaving because you do not feel heard, presumably you would continue in mediation if you felt heard.

Collaborative
You are encouraged to work together to solve your problem(s) and to reach what you perceive to be your fairest and most constructive agreement.

Controlled
You have complete decision-making power. Each of you has a veto over each and every provision of any mediated agreement. Nothing can be imposed on you.

Confidential
Mediation is confidential, to the extent you desire, be that by statute, contract, rules of evidence or privilege. Mediation discussions and all materials developed for a mediation are not admissible in any subsequent court or contested proceedings, except for a finalized and signed mediated agreement for enforcement purposes.

Informed
The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Individual or mutual experts can be retained. Obtained expert information can be designated as either confidential to the mediation or, if you desire, as admissible in any subsequent contested proceeding. Expert advice is never determinative in mediation. You, as parties, always retain decision-making power. Mediators are bound to encourage parties to obtain legal counsel and to have any mediated agreement involving legal issues reviewed by independent legal counsel prior to signing. Whether legal advice is sought is, ultimately, a decision of each participant.

Impartial, Neutral, Balanced and Safe
The mediator has an equal and balanced responsibility to assist each mediating party and cannot favor the interests of any one party over another, nor should the mediator favor a particular result in the mediation. The mediator's role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation. If you ever feel that the mediator is favoring one party over another, or any particular result over another, or if you should ever feel intimidated or otherwise unsafe in mediation, speak up. The mediation should not continue unless you come to be satisfied in all of these regards.

Self-Responsible and Satisfying
Based upon having actively resolved your own conflict, participant satisfaction, likelihood of compliance and self-esteem are found by research to be elevated through mediation.

Q: What Are the Benefits of Mediation?

A: People in disputes who are considering using mediation as a way to resolve their differences often want to know what the process offers. While mediation can not guarantee specific results, there are trends that are characteristic of mediation. Below is a list of some of the benefits of mediation, broadly considered. Mediation generally produces or promotes:

Economical Decisions
Mediation is generally less expensive when contrasted to the expense of litigation or other forms of fighting.

Rapid Settlements
In an era when it may take as long as a year to get a court date, and multiple years if a case is appealed, the mediation alternative often provides a more timely way of resolving disputes. When parties want to get on with business or their lives, mediation may be desirable as a means of producing rapid results.

Mutually Satisfactory Outcomes
Parties are generally more satisfied with solutions that have been mutually agreed upon, as opposed to solutions that are imposed by a third party decision-maker.

High Rate of Compliance
Parties who have reached their own agreement in mediation are also generally more likely to follow through and comply with its terms than those whose resolution has been imposed by a third party decision-maker.

Comprehensive and Customized Agreements
Mediated settlements are able to address both legal and extralegal issues. Mediated agreements often cover procedural and psychological issues that are not necessarily susceptible to legal determination. The parties can tailor their settlement to their particular situation.

Greater Degree of Control and Predictability of Outcome
Parties who negotiate their own settlements have more control over the outcome of their dispute. Gains and losses are more predictable in a mediated settlement than they would be if a case is arbitrated or adjudicated.

Personal Empowerment
People who negotiate their own settlements often feel more powerful than those who use surrogate advocates, such as lawyers, to represent them. Mediation negotiations can provide a forum for learning about and exercising personal power or influence.

Preservation of an Ongoing Relationship or Termination of a Relationship in a More Amicable Way
Many disputes occur in the context of relationships that will continue over future years. A mediated settlement that addresses all parties' interests can often preserve a working relationship in ways that would not be possible in a win/lose decision-making procedure. Mediation can also make the termination of a relationship more amicable.

Workable and Implementable Decisions
Parties who mediate their differences are able to attend to the fine details of implementation. Negotiated or mediated agreements can include specially tailored procedures for how the decisions will be carried out. This fact often enhances the likelihood that parties will actually comply with the terms of the settlement.

Agreements that are Better than Simple Compromises or Win/Lose Outcomes
Interest-based mediated negotiations can result in settlements that are more satisfactory to all parties than simple compromise decisions.

Decisions that Hold Up Over Time
Mediated settlements tend to hold up over time, and if a later dispute results, the parties are more likely to utilize a cooperative forum of problem-solving to resolve their differences than to pursue an adversarial approach.

Q: What is the role of the mediator?

A: The mediator's ultimate role is to do anything and everything necessary to assist parties to reach agreement. In serving this ultimate end, the mediator may take on any or all of the following roles:

Convener
The mediator may assist in contacting the other party(ies) to arrange for an introductory meeting.

Educator
The mediator educates the parties about the mediation process, other conflict resolution alternatives, issues that are typically addressed, options and principles that may be considered, research, court standards, etc.

Communication Facilitator
The mediator seeks to ensure that each party is fully heard in the mediation process.

Translator
When necessary, the mediator can help by rephrasing or reframing communications so that they are better understood and received.

Questioner and Clarifier
The mediator probes issues and confirms understandings to ensure that the participants and the mediator have a full understanding.

Process Advisor
The mediator comes to be trusted to suggest procedures for making progress in mediation discussions, which may include caucus meetings, consultation with outside legal counsel and consultation with substantive experts.

Angel of Realities
The mediator may exercise his or her discretion to play devil's advocate with one or both parties as to the practicality of solutions they are considering or the extent to which certain options are consistent with participants' stated goals, interests and positive intentions.

Catalyst
By offering options for considerations, stimulating new perspectives and offering reference points for consideration, mediator serves as a stimulant for the parties reaching agreement.

Responsible Detail Person
The mediator manages and keeps track of all necessary information, writes up the parties' agreement, and may assist the parties to implement their agreement.

Q:What is Arbitration?

A: Arbitration is an adversarial system of justice designed to present a disputed case to a neutral and impartial third party for decision. It is very much like the adjudicatory (court) process, but a bit less formal. Arbitration is, however, even more binding than a court decision in that, in arbitration, you give up our rights to appeal in favor of getting the matter resolved.

Standard Arbitration Clauses

Parties can provide for arbitration of future disputes by inserting the following clause into their contracts:

Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by a mutually acceptable arbitrator, under the rules of the American Arbitration Association. The award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

Arbitration of existing disputes may be accomplished by use of the following:

We, the undersigned parties, hereby agree to submit to arbitration administered by a mutually acceptable arbitrator, under the rules of the American Arbitration Association. We further agree that the above controversy be submitted to an(one) (three) arbitrator(s). We further agree that we will faithfully observe this agreement and the rules, that we will abide by and perform any award rendered by the arbitrator(s), and that a judgment of any court having jurisdiction may be entered on the award.

The arbitration, unless the matter otherwise first settles, will be concluded with the transmittal of the award. Although there is voluntary compliance with the majority of awards, judgment on the award can be entered in a court having appropriate jurisdiction if necessary.

Q: What is Litigation?

A: Litigation involves either hiring an attorney or prosecuting a legal case yourself in court. Litigation begins with the filing of a complaint or petition and involves discovery, motions, a possible trail and, if desired, at least two rounds of appeal.

Litigation may be a preferred alternative when nothing else seems like it will work. The problems with litigation include that it is time consuming, costly and very high stress. If one side "wins" big, then that decision may well be appealed or there may be problems with enforcement.

All of this being said, if you can afford a good attorney and if you need the clout of the court to catch the other side's attention and/or give you a meaningful chance of true relief, then litigation and the courts may be for you.

Q: What is Collaborative Law?

A: The essence of "Collaborative Law" is the shared belief of the participants that it is in the best interests of parties to commit themselves to resolving their differences with minimal conflict and no litigation. They seek to adopt a conflict resolution process that does not rely on a Court imposed resolution. The process does rely, however, on an atmosphere of honesty, cooperation, integrity and professionalism geared toward the future well being of the parties.

The Adversary System
Law school training and the real world attorney work experience combine in a well established and powerful institutionalization of the adversarial-representative model of conflict resolution. While it is not the only model for negotiating and resolving issues, it is the one which becomes ingrained in anyone who works in a litigation system. Most attorneys who regularly handle litigation work, fantasized, in the days before being admitted to practice, about standing at the bar of justice making an impassioned and eloquent argument which wins the case or surgically dissecting a hostile witness with a brilliant cross-examination. The daily grist of the litigator's mill, however, is the stress and frustration of trying to achieve the client's objectives against the impediments and opposition of the parties on the other side of the case.

The costs of this process are usually observed as being both outrageously high and inevitable. Both are true statements about the adversarial model. What is also true is that this model is ill-suited for the purposes of resolving family law conflicts. Rather than assuming the conflict must adapt to the traditional adversarial litigation model, the collaborative approach is based on the idea that the process should adapt to the actual needs of the parties in conflict in reaching agreement. In the traditional competitive approach, where the parties objectives or strategies collide, it is assumed that the only way to move past, through, around or over the opposition, is to employ the power of the law-based procedures to make something happen. In the face of opposition from the other side, a lawyer looks to the power of the process and often overlooks the reverberating impact that process will have on the daily lives of the clients and their children. Furthermore, this power-based, competitive approach nurtures continued resistance as the participants have little or no reason to view the other side as anything but a threat and something to fear.

Collaborative Negotiating
The collaborative approach is both pragmatic and grounded in its focus on the needs of the parties. Initially, those needs fall into two categories: process needs and outcome needs. The process needs are determined by accepting the party in the emotional state in which they enter the process. That person may be experiencing a wide range of emotions such as, anger, hurt, distrust, bitterness, guilt and grief. These emotions may come with a wide range of personality characteristics such as, intelligent, unsophisticated, analytical, visual, needy or codependent. A good process begins by accepting the participant as who he or she is at the outset. The outcome needs describe the desired goals and objectives of the party which will allow that person to feel the issues are resolved. As we will see, these outcome needs are developed by analyzing the interests of the party and moving beyond the stated positions which have sustained the conflict.

The core of the collaborative process is to facilitate the making of agreements. To be effective in this role, it is necessary to make a mental shift in the mindset that one brings to viewing both the nature of the conflict and the elements inherent in the personalities, characteristics and resources of the parties.

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

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

www.mediate.com/about
www.mediate.com/resolution.cfm
www.mediate.com/articles

Q: What If I want to be a mediator?

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

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