Negotiation & Mediator - The Role of Negotiator & Mediator

by Assoc. Prof. Dr. Abdul Rani bin Kamarudin Lecturer Ahmad Ibrahim Kulliyyah of Laws (Legal Practice Department) IIUM
Date: 5th January 2013, Time : 2.30pm - 4.00pm Venue: Pusat Teknologi Maklumat (PTM), UKM Bangi.

Negotiation

Giving & taking concessions; To achieve solution i.e. discuss sticking points or damages; To maximise gains.

Role of Negotiator
1. 2. 3. 4. 5. 6. 7. 8. 9. Requires skills and vigilant, and to display sufficient ability in achieving ones interest i.e. like a car driver when negotiating a bend or corner; Proper mix between the competitive and cooperative negotiation strategy; Conceding to points which are of no great concern & to concentrate on the one that are by taking into account the followings tips & tricks: Start high if you are selling, and low if you are buying; Give just a little concession at a time than a large amount of single concession; Never give a concession without one in return; Exchange little for much; Need to know limits, goals and probable bargaining range; May require several negotiations; What is clients instruction and authorisation? What is clients best interest? Know the facts/law why concession given is little or not possible, or why the opponent must concede to the concession asked for.

Adversarial/Competitive/ Hardball / Hard Talk/ Combative Negotiation Strategy Part 1

To induce the opponent to lose confidence in himself or his case so as to exact substantial concessions from the opponent by reducing his expectations and for him to accept less than he otherwise would. Its characteristics are high opening demands, and maintaining it throughout and only making infrequent but small concessions to induce unilateral concessions from the opponent. Manipulative in its approach, designed to intimidate the opponent into submission through exaggeration, ridicule, threat, bluff, and accusation to create high levels of tension and pressure on the opponent. e.g. of threat weve been talking for hours without progress. Creating enough pressure and tension to induce and emotional reaction and a reduction in expectations in the opposing party. If pressure is excessive or is maintained too long, it may backfire.

Adversarial/Competitive/ Hardball / Combative/ Hard Talk Negotiation Strategy - Part 2

Downside The goal is victory - win lose situation winning is everything; Generates a marked increase in tension and mistrust - opponent either capitulate or walk out (deadlock); Creating the appearance of more disagreement and losing sight of the objective merits of the case (underlying issues) and generating impasse; Involves taking or digging into position than common interest or actual needs; Rate of impasse is significantly higher; Damage to long term relationships that depend on mutual trust.

Cooperative/ Problem Solving Negotiation Strategy Part 1

The goal is agreement; What is fair and just equitable; Common interest and actual or basic needs than taking or digging into positions thus seeing opportunities for solutions; Win-win situation through give and take; and Develop trust and maintained future relations.

Cooperative/ Problem Solving Negotiation Strategy Part 2

Downside Little emphasis if any on position by too easily making concession for the sake of settling;

May be taken as sign of weakness and indecisiveness by the opponent who adopts the competitive approach who is always battle ready to take advantage.

Negotiation Strategy Which is better, competition or cooperation? Part 1

Quran chapter 28 verses 23-28. And When he (Moses) arrived at the watering (place) in Madyan, he found there a group of men watering (their flocks), and beside them he found two women who were keeping back (their flocks). He said: What is the matter with you? They said: We cannot water (our flocks) until the shepherds take back (their flocks), and our father is an old man. So he watered (their flocks) for them; then returned back to the shade, and said: O my Lord! Truly I am in (desperate) need of any good that Thou dost send me! Afterwards, one of the two came (back) to him walking bashfully. She said: My father invites thee that he may reward thee for having watered (our flocks) for us. So when he came to him and narrated the story, he said: Fear thou not: (well) hast thou escaped from unjust people.

Negotiation Strategy Which is better, competition or cooperation? Part 2

Quran chapter 28 verses 23-28. Said one of the (damsels); O my (dear) father! engaged him on wages: truly the best of men for thee to employ is the (man) who is strong and trusty. He said I intend to wed one of these my daughters to thee on condition that thou serve me for eight years, but if thou complete ten years, it will be (grace) from thee and I intend not to place thee under a difficulty. Thou will find me, indeed if God wills, one of the righteous. He said: Be that (the agreement) between me and thee, whichever of the two terms I fulfill, let there be no ill will to me. Be God a witness to what we say.

Negotiation Strategy Which is better, competition or cooperation? Part 3

Mosess strength: bachelor, strong and trustworthy. Mosess weak points: fugitives, homeless & jobless. The old man's strength: has shelter and jobs to offer, and two unmarried daughters. The old man weaknesses: Old and badly in need of a strong and trustworthy man to cater the flocks, and to safeguard his familys interest. Opportunities: The old man gets a strong and trustworthy man who will work for him as his in law by marrying to one of his two daughters. For Moses, a shelter/ home in the form of father in law, wife and a job.

Negotiation Strategy Which is better, competition or cooperation? Part 4

Cooperative style is most suited where both sides have strong motives for settling. Competitive style is suited where both sides aim to get the most possible. Why does adversarial negotiation seem to dominate how we negotiate? - ego/ self esteem - macho - self interest - more gain more commission - easier and natural especially the one that has the upper hand e.g. creditors

Concluding Negotiation
Objectives should be achieved as far as possible by identify their underlying needs. Comprehensive; Clear; Settle; Enforceable.

A Mediator
A mediator only mediate and is not a negotiator or negotiates; Only a mediator may mediate; Malaysian Bar Council which runs the Malaysia Mediation Centre (MMC) defines a mediator as any person who is neutral, impartial, independent and accredited by MMC; MMC accreditation will be accorded to persons who demonstrate that they have achieved & maintain the prescribed level of competence in the process of mediation; A person who satisfactorily completed a 40 hour mediation skills training workshop conducted by the Bar Council Malaysian Mediation Centre and underwent a simulated role play observed by one or more assessors approved by the Accreditation Committee of MMC may apply to be empanelled as a Mediator in MMC; Have insurance coverage.

What is Mediation?
It is a completely voluntary non binding and private dispute resolution structured process; Parties may terminate the mediation process at any time A mediator will not make a ruling or finding unless requested by all parties involved. No settlement reached until it has been reduced into writing and signed by the parties (Settlement Agreement) Parties are encouraged to cooperate in good faith to resolve dispute; The process is confidential and without prejudice. Disclosures or admissions by parties shall not leave the four walls of the mediation venue should the parties failed to reach any settlement, No unauthorised Audio visual recordings ; A neutral third party elicits the parties cooperation to discuss their dispute openly and facilitates their understanding.

Why Mediation as a First Option?

Non binding and voluntary; Parties are the bosses and they not the mediator that determine for themselves how their disputes should be resolved; Cost effective (cheaper) & time saving, each party bears his own cost; Informal, flexible, privacy and non adversarial; Good business etc relations are maintained; Mediation works best if parties have a genuine desire to resolve differences.

Arbitration (private judge) privacy, the tribunal is chosen by the parties, informal, [speed and efficiency, lower costs?]

Court (public judge)

Mediation private, voluntary, and if agreement is reached, it is enforceable as a contract. (parties are the sovereign)

Role of Mediator
To facilitate the process of mediation expeditiously and impartially. To maintain confidentiality unless expressly authorised to divulge. A mediator will not make a ruling or finding unless requested by all parties involved. Any settlement reached is to be recorded in writing and signed by them voluntarily. A Mediator is a neutral third party who elicits the parties cooperation to discuss their dispute openly and facilitates their understanding. Encourages parties to put aside their legal rights (position) for a moment and to focus on their relationship (actual or basic needs). Parties reach a settlement on their own. A Mediator assists parties to find common ground (underlying objectives) and from there to negotiate and achieve as mutually satisfactory solution.

Role of Mediator
A Mediator does not offer advice, give solution (may suggest solution), make recommendation or determine for the parties on how the disputing parties should resolve their disputes. Solution comes from the parties in dispute unlike a conciliator who may give or make recommendations and formulate solutions. Is authorised to conduct joint and separate meetings with the Parties. May obtain expert or technical advice but parties must agree first to pay for the expenses. May end the mediation if he is in the opinion that the mediation would not contribute to a resolution of dispute between the Parties.

What are Needs & Interests

Needs are the parties ultimate goal. Interests are parties actual needs and wants negotiators should identify their underlying needs. Common grounds by highlighting common grounds, the negotiator or Mediator reinforces or reassures that negotiation is progressing forward. One will perceive that he needs a car but the underlying need is for transport which could be resolved by motorcycle, car sharing, taking a lift etc. Mediator or negotiator (cooperative strategy) should generate options to cater for the needs of the other party, and elicits solutions from the other party.

Between Interest Based & Rights?

Martha v Sally is a leading case used as a classic illustration in mediation training by mediation trainer on interest versus rights. Two young sisters fighting over one orange. The frustrated mother solved the problem by cutting the orange into half. The first sister ate her half and threw away the rind. The second sister threw away her fruit and used the rind for baking. In actual fact, the first sister wanted the pulp to make the juice whereas the other sister wanted the rind to make the cake. If the mother had taken the sisters interest (actual needs) rather than their rights (position), both of them would have obtained the maximum benefit from the orange.

Impasse
Parties are tired, exhausted. Sticking to position, rights rather than interest or actual needs. Too egoistic to make compromise negotiator adopts a competitive strategy. To overcome impasse negotiator or mediator should break issues into smaller parts, resolve difficult issues later and deal with the simpler ones. Take a break. Mediator must be a good listener by summarising, showing empathy, checking the facts with the party, establishing rapport, reading parties gestures. Mediator's position is weak unlike a judge and arbitrator hence has to work harder. If parties try to walk out, mediator has to persuade them to come in and resume.

Thank you

Main References
Don Peters (1985) Negotiation. Materials from Mediation Skills Training Workshop provided by the Bar Council Malaysia Mediation Centre. Dr Dale Bagshaw - Mediation Training Manual, University of South Australia. Ibnu Katsir Stories of the Prophets.