Želite li znati više

1. Planning for Negotiations.....................................................................................................2

2. Strategic Choice in Negotiation...........................................................................................4
3. Core Conflict Problems........................................................................................................7
4. Negotiation Styles in Mediation.........................................................................................17

1
 1. Planning for Negotiations
by Michelle Maiese
 
Effective planning is crucial to meeting negotiation objectives. If the parties are to reach a
stable agreement, specific events must take place before the parties ever come to the table.
1. Parties must frame the problem, and recognize that they have a common problem that
they share an interest in solving. Frames are the conceptions that parties have of the
situation and its risks. They allow the parties to begin to develop a shared definition of
the issues involved, and the process needed to resolve them.[18] When the frames of
both parties match, they are more likely to focus on common issues and have a
common definition of the situation. However, when the frames do not match,
communication between the parties is likely to be more difficult. Unless the different
outlooks on the problem begin to overlap, it is unlikely that negotiations will be
successful.[19] If negotiators understand what frame they are operating from and what
frame the other is operating from, they may be able to shift the conversation and
develop common definitions. The way in which parties define the problem can shape
the rest of the planning process.
2. In the early stages of framing, negotiators must also determine their goals, anticipate
what they want to achieve, and prepare for the negotiation process. They must define
the issues to be discussed and analyze the conflict situation. In many cases, negotiators
can appeal to research or consult with experts to help them develop a complete list of
the issues at stake. Next, parties should assemble all the issues that have been defined
into a comprehensive list. The combined list of issues and priorities from each side
determines the negotiation agenda.
3. Negotiators often exchange and negotiate the list of issues to be discussed in advance.
Consultation between negotiators prior to actual negotiation allows them to agree on
the agenda of issues to be discussed, as well as the location of the negotiations, the
time and duration of the sessions, the parties to be involved in the negotiations, and
techniques to pursue if negotiation fails. Negotiators should also agree on principles
that will guide the drafting of a settlement, the procedures to be used in negotiations,
and the formula by which a general agreement is to be reached.[20] Discussions about
these procedural issues are often crucial for the success of substantive negotiations. If
parties cannot agree on negotiation procedures and proposed items for the agenda,
they may very well decide to abandon the negotiations altogether.
4. After assembling issues on an agenda, the negotiators must prioritize their goals and
evaluate the possible tradeoffs among them.[21] Negotiators must be aware of their
goals and positions and must identify the concerns, desires, and fears that underlie
their substantive goals. They must determine which issues are most important, as well
as whether the various issues are linked or separate. In addition, negotiators should be
aware of the underlying interests and goals of the other side. Because the linkages
between parties' goals often define the issue to be settled, these goals must be
determined carefully. If one party wants more than the other party is capable or willing
to give, the disputants must either change their goals or end the negotiation.

2
5. Once they have determined the relative importance of the issues, parties need to
decide the order in which issues should be discussed. Many sequencing options are
possible: going from easy to hard, hard to easy, or tackling everything together.
Different situations suggest different answers to that question, and different
negotiators and mediators prefer one approach over the others.
6. Negotiators that are operating on behalf of a constituency should consult with their
constituents as well as with the other side to ensure that the constituents' needs and
priorities are included in the negotiations.[22]
7. The next step is for negotiators to define specific targets with respect to the key issues
on the agenda. Parties should try to figure out the best resolution they can expect, what
counts as a fair and reasonable deal, and what is a minimally acceptable deal.[23]
They should also be aware of the strongest points in their position and recognize the
strongest points in the other side's position. This enables parties to become aware of
the range of possible outcomes (see ZOPA) and to be flexible in what they will accept.
It also improves the likelihood that they will arrive at a mutually satisfactory outcome.
8. Because negotiations typically involve more than one issue, it is helpful for
negotiators to anticipate different ways of packaging issues. They can balance the
issues they regard as most important by being more flexible about items they deem
less important.[24] They should also decide which items they can abandon and use as
leverage to get what they really want with respect to the most important issues.
9. Planning for negotiation also involves the development of supporting arguments.
Negotiators must be able to present supporting facts and arguments, anticipate how the
other side will respond to these arguments, and respond to the other party's claims
with counter-arguments. This includes locating facts to support one's point of view,
determining what sorts of arguments have been given in similar negotiations in the
past, anticipating the arguments the other side is likely to make, and presenting facts in
the most convincing way possible.[25]
10. Finally, planning involves assessing the other party's priorities and interests and trying
to get a better idea of what that party is likely to want. Negotiators should gather
background information about the other party's current needs, resources, and interests.
This can be done through preliminary interviews or consultations with those who have
done business with the other party in the past. In addition, negotiators need to
understand the other party's objectives. Professional negotiators will often exchange
information about targets or initial proposals before negotiations begin. Third,
negotiators should be aware of the other party's negotiation style, reputation, and the
strategy and tactics they commonly use. They should investigate that party's past
behavior in related settings, determine his or her organizational position, and find out
whom he or she admires and whose advice carries weight.[26] An individual's past
negotiation behavior is a good indication of how he or she will behave in the future.
Fourth, negotiators should understand the other party's alternatives. If the other
negotiator has strong alternatives, he or she will probably be willing to set high
objectives and be willing to push hard for these objectives during negotiation.

3
2.Strategic Choice in Negotiation
by Dean Pruitt
Citation: Dean Pruitt, "Strategic Choice in Negotiation," in Negotiation Theory and Practice,
eds. J. William Breslin and Jeffery Z. Rubin, (Cambridge: The Program on Negotiation at
Harvard Law School, 1991), pp.27-46.

This article summary written by: Tanya Glaser, Conflict Research Consortium.

Pruitt discusses four basic negotiation strategies, factors which affect the choice of strategy,
and how the choice of strategy affects the negotiation's outcome.

Negotiation Strategies

There are four basic negotiation strategies. They are: problem solving, contending, yielding ,
and inaction. Problem solving seeks to reconcile the parties' aspirations. Problem solving
tactics include increasing available resources, compensation, exchanging concessions on low
priority issues, minimizing the costs of concessions, and creating new mutually beneficial
options. The advantage of problem solving strategies is that they yield the, best outcomes.
Mutually beneficial outcomes are more likely to last, to improve the parties relationship, and
to benefit the wider society. Problem solving outcomes are likely to benefit both parties when
the situation has high integrative potential and both parties have reasonably high aspirations.
In addition parties must be firm about their aspirations or goals, but must be flexible regarding
the means used to reach those goals. The risk of problem solving strategies is that they may
backfire if the other side pursues a contentious strategy.

Contention seeks to persuade the other party to agree to a solution that favors one's own
interests. This strategy has also been called positional bargaining. Contentious tactics include
inflated demands, irrevocable commitments, persuasion, and threats. Contentious strategies
alone tend to yield poor outcomes. Contending may escalate a conflict. When outcomes are
finally reached they may be low-level compromises. Contention is often used as an opening
strategy, to be replaced by problem solving at a later stage. In such cases the early use of
contention may still yield beneficial outcomes.

When parties yield they reduce their aspirations. Yielding is an effective way to close
negotiations when issues are unimportant and time pressures are high. Yielding can also
contribute to a successful problem solving approach. However, outcomes tend to be depressed
when both parties use a yielding strategy. The strategy of inaction is usually used to increase
time pressure on the other party.

Choosing a Negotiation Strategy

4
Pruitt offers two models of negotiation strategy choice: the dual concern model, and the
feasibility model. The dual concern model predicts strategy choice based on four factors.
"Concern about both one's own and other party's outcomes encourages a problem-solving
strategy; concern about only one's own outcomes encourages contending; concern about only
the other party's outcomes encourages yielding; concern about neither party's outcomes
encourages inaction."[p. 30-1]

Concern about one's own outcome is increased by the importance of the issues involved.
Concern is also increased when one's aspirations are close to one's baseline position, that is,
when there is little room to make concessions. Concern is diminished when one fears conflict.
Research has found that representatives are more concerned and less likely to yield than are
individuals negotiating on their own behalf. This is because representatives are accountable to
and need the approval of their constituents.

Concern about the other party's outcome may be genuine or strategic. Genuine concern for the
other is increased by personal attraction, shared group identity, or a positive mood. Strategic
concern for the other's outcomes results from dependency on the other, or when the other can
supply rewards or penalties.

Experimental studies have confirmed the model's predictions. Studies also show that concern
for the other party's outcome leads to problem solving strategies and is most beneficial when
combined with concern for each party's own outcome. Lower interest in one's own outcome
results in yielding and low joint benefits. Representative accountability tends to encourage
contention. However, representative accountability can promote problem solving if conditions
also encourage a good relation between the negotiators.

Feasibility also affects the choice of negotiation strategy. "A strategy is seen as feasible to the
extent that it seems capable of achieving the concerns that give rise to it."[p. 35] Even though
a strategy is favored by the dual concern model, it will not be employed if it is not also seen as
feasible.

The feasibility of problem solving strategies depends on the amount of the parties' perceived
common ground (PCG), that is, how likely it seems that the parties will find a mutually
satisfactory solution. The PCG is greater when the parties' aspirations are low, and their
confidence in their creativity and ingenuity is high. Pruitt points out four factors which
increase the parties' PCG. First is their confidence in their own problem solving skills. Second
is the presence of problem solving momentum from previous successful negotiations. Third is
the presence of a mediator. Mediators facilitate the parties' problem solving and
communication activities, and actively search for common ground. Fourth is the presence of
trust on the part of at least one of the parties. When the trusted party also has firm aspirations,
the other party will generally adopt a problem solving strategy. When the trusted party's
aspirations seem weak, the other party will adopt a contentious strategy, expecting the trusted
party to yield.

Contending seems more feasible when the other party's concern for their own outcome is low,
that is, when their resistance to yielding is low. Pruitt argues that contention is a self- limiting
strategy. The strategy tends to be abandoned if it fails. Successful contention moves the losing
party closer to their baseline position, and so tends to increase their resistance to further
yielding. Thus further contention becomes less feasible. The costs of contending must also be

5
taken into account when considering the feasibility of that strategy. Costs include possibly
escalating the conflict, and provoking censure from third parties or constituents.

Inaction generally increases the time pressure on the parties. Yielding is the most common
response to time pressure. Thus inaction is a feasible strategy when the other party is more
susceptible to time pressure than the inactive party and when their resistance to yielding is
low.

Influencing the Other Party's Strategy

Since joint problem solving yields the most beneficial outcomes, it is in a party's interests to
encourage the other to adopt a problem solving approach. One way to do this is to encourage
the other to develop concern for one's own outcomes. This may be done by offering favors to
the other and cultivating their dependence, by pointing out a common identity, or by putting
them in a good mood. Another way is to explicitly adopt a problem solving approach coupled
with firmness about one's interests and aspirations, and flexibility about the means of
satisfying those aspirations. Pruitt explains that "the firm part of this strategy should convince
the other that contentious behavior is infeasible, that one will never give under pressure. The
conciliatory and flexible parts should produce enough PCG and trust that the other will see
problem solving as thoroughly feasible."[p. 42] Firmness in one's aspirations may be
conveyed by strong statements and verbal defenses. Contentious tactics may be used to
underscore one's commitment. However, parties must be careful in the use of such tactics, lest
they undermine the greater problem solving approach. Flexibility in the means of reaching an
outcome and the form of the outcome may be conveyed by showing concern for the other's
interests and willingness to try to satisfy them, by open communication, by demonstrations of
one's problem solving skills, and by a willingness to re-evaluate the importance of interests
that are clearly unacceptable to the other side.

6
 3. International Online Training Program On
Intractable Conflict
Conflict Research Consortium, University of Colorado,
USA

Problem List 2: Core Conflict Problems

Click Here to go to Problem List 1:  Complicating Factors

TYPES OF CORE ISSUES

Although intractable conflicts can involve almost any issue, some kinds of issues are
particularly likely to cause conflicts to become intractable.  Among these are the following:

The Denial of Identity

The denial of a person's sense of self or the legitimacy of his or her group identity

The Denial of Other Human Needs

In addition to identity (which is a fundamental need), the denial of other fundamental

needs such as security, or the ability to pursue one's own goals often leads to
intractable conflicts.

Domination Conflicts

Conflicts about who is on top of whom in the social, political, and economic structure
tend to be intractable.

High Stakes Distributional Conflicts 

High stakes win-lose conflicts over who gets what and how much can often become
intractable.

FORCE PROBLEMS

7
 Problems which arise when one party forces another party to do something that they
do not want to do.

For more information about any of these topics, click on the title.

Failure to Recognize Available Force-Based Options

Disputants often fail to recognize that they usually have a large number of force-based
options, each with their own advantages and disadvantages. This lack of awareness of
available options can cause people to pursue ineffective confrontation strategies.  For
example, people may pursue violent resistance strategies, when  non-violent action
might be more effective. Or, people might pursue hopeless election campaigns when
legal action would be more likely to protect their rights.

Assuming Force is the Only Source of Power

Faced with a difficult conflict, disputants sometimes overlook the possibility of using
negotiation or persuasion to improve the situation, relying instead on force. This is
especially likely to occur when force has already been used by the other side. In this
case, the most common reaction is to respond with equal or even greater force.
However, this type of response is likely to escalate the conflict, while other options
might protect one's interests just as well or better, without making matters worse. 

Absence of Violence Limiting Mechanisms

Force based options differ dramatically depending upon whether or not force is being
used in a situation where effective violence limiting mechanisms are in place.  Failure
to understand these differences can lead to the selection of inappropriate and
ineffective strategies.

Failure to Anticipate Opponent Reactions and the Backlash Effect

People or groups who use forced-based strategies often assume that their opponents
will quickly submit to their demands, thereby providing a quick route to victory. 
However, most people hate to be forced to do things against their will, so they can be
expected to use any means available to resist the use of force.  This can make it
difficult to predict how opponents will respond to one's force-based initiatives. Even if
they appear to submit, they often will try to build up their power so that they can
retaliate or reverse the decision at a later time.  (This is what we call the "backlash
effect.")

Misunderstanding the Relationship Between Threat and Force

While threatening to use force is quite inexpensive, carrying out the threats and
actually using force can be costly and dangerous. Often, parties who fail to understand

8
 this use threat-based strategies too frequently and in ways which limit their ability to
advance their interests.

Illegitimate or Excessive Use of Force

Resentment and retaliation is especially likely when victims of force believe that the
use of force was illegitimate. In this situation, the losing party is likely to try to build
up their own forcing power in hopes of challenging the victor at the earliest possible
opportunity. The result is likely to be a long-term intensification of the conflict, rather
than resolution.

Pursuing Force to the Bitter End

Disputants often incorrectly assume that there is no alternative to pursuing force-based

strategies to the point of ultimate victory or defeat--in spite of the enormous costs
involved.

Note:  the following seven items can be considered either problems or solutions, depending
on one's point of view.  They therefore appear on both the problem and the solution lists, and
the write-ups reflect both perspectives.

Submission

In cases where people are subjected to overwhelming force which they do not have the
power to resist, it may be most appropriate to simply accept defeat and try (at least
over the short term) to make the best of a bad situation.

Subversion

Often, people who are being subjected to force pretend that they are submitting to the
demands of the forcing or threatening party, when in reality they are pursuing a
deceptive strategy which allows them to avoid complying with those demands.

Defiance

The cost of using force-based threats increases dramatically when the opponent
responds to a threat with defiance rather than submission. This forces the threatening
party to carry out the threat or admit that it was only a bluff. Carrying out a threat is
likely to result in an expensive, destructive, and rapidly escalating confrontation, while
withdrawing the threat is likely to undermine a party's ability to use threat and force-
based strategies in the future.

Defense

9
 Defense is a strategy which allows people to prevent others from successfully using
force against them. Successful defense strategies do not, however, give the defending
party the ability to successfully use force against their opponents.

Coalition Building

People can build their power base and their ability to pursue (or resist) force-based
strategies by building coalitions with people with complementary interests. Members
of these coalitions promise to help each other advance their interests and defend
themselves from force-based strategies of their opponents.

Deterrence, Counter-Threats (and Arms Races)

Often disputants respond to force-based threats with counter-threats rather than

submission. Such threats and counter-threats can result in rapid escalation of a
conflict. In military situations, this is called an "arms race." Similar dynamics can
arise with legal, political, or other types of force as well.

Flight (Refugees)

Another possible response to overwhelming force is flight, in which the parties simply
flee the area. It is this strategy which is responsible for the large numbers of refugees
who flee the world's trouble spots.

Assuming Monolithic, Worst Case Opponents

Disputants often take the worst possible view of their opponents' intentions and
strategies.  Usually, such worst-case scenarios are inaccurate.   Using them as a basis
for making strategic decisions is usually unwise, as it is likely to antagonize moderate
members of the opposing group and lead to unnecessary escalation.

Neglecting Costs and Risks of Using Force

Parties often decide to pursue force-based strategies based on optimistic assumptions

about the likely costs and probability of success. Leaders often encourage their
supporters to make optimistic assumptions as a way of building support for a
particular strategy. However, this process may lead the disputants to greatly
underestimate the costs and risks of force, resulting in a poor choice of confrontation
strategies.

Human Rights/War Crime Problem

In extremely polarized and escalated conflicts one group may violate another's
fundamental human rights (through murder, torture, or kidnapping, for example).  
Although forbidden by international law, such human rights abuses are, unfortunately,

10
 rather common, and are very difficult to deal with without considerable outside
intervention.

Lack of Viable Military Options

In situations in which effective violence-limiting mechanisms are absent, disputants

often conclude that military options provide the best mechanism for protecting their
interests.  This is not always true, however, as military victory is often difficult to
obtain.

Tyranny of the Powerful/Disempowerment

While there are many effective strategies for helping the disempowered better defend
their interests and resist injustice, these strategies will not work in all situations. There
are times when the more powerful parties are  going to win (at least over the short
term), even though their cause is not legitimate.

Ostracizing Losers

Often, the losing parties are ostracized by the society to which they belong. In addition
to failing to achieve their objectives, they also often find themselves treated as second-
class citizens who are the subject of scorn and discrimination. This can lead to
continuing hostility and further conflict. 

INTEGRATIVE PROBLEMS

The integrative system is the system of social, economic, and political bonds that hold
people, communities, and societies together.   Integrative problems are situations that
weaken these bonds or fail to take advantage of the power they can provide for
constructive conflict confrontation.

For more information about any of these topics, click on the title.

Neglecting Opportunities for Persuasion

Often disputants fail to take advantage of opportunities for persuasion because they do
not consider this to be a significant source of power.

Ineffective Persuasion

Often the parties' attempts at "persuasion" are little more than selfishly-motivated
demands for their opponents to comply with their wishes. This is likely to arouse
further opposition, not compliance.

11
** TOUR ** Differences in Values

Efforts to persuade people to do "the right thing" are complicated by differing value
systems. Religious and cultural groups have different and often contradictory images
of what is right and wrong, or good and evil--which can make it very difficult to agree
on what is the "right thing" to do.

Lack of Legitimacy

In order to be effective, persuasive appeals must be viewed as legitimate. This requires

that the individual or group making the appeal must, itself, be viewed as legitimate.

Distrust

While not essential to conflict resolution, when parties to a conflict trust each other,
their ability to resolve the conflict successfully is greatly increased. The opposite is
also true, however. When parties distrust each other--as they often do after a
protracted conflict--it can be very hard to come to any agreements, because both sides
will fear that the other side cannot be relied upon to keep its promises.

Prejudice / Discrimination

Prejudice and discrimination are very common problems in societies with different
racial, ethnic, or national groups. Such problems undermine the sense of commonality
and community among the citizens, making conflict more likely and constructive
confrontation more difficult.

Erosion of Traditional Conflict Management Institutions (Extended families, churches,

or judicial systems for example)

Most societies have existing institutions or social structures which are used (and
accepted) as legitimate means of resolving conflicts. When these structures or
processes are damaged, the ability of the society to manage its conflicts successfully is
reduced.

Integrative System Does Not Exist or Is Very Weak

All societies and groups are held together, at least to some extent, by social bonds.
When these bonds are strong, the people involved in the society (or group or family
unit) identify as part of that unit and feel allegiance to it. Severe conflict, however, can
break down these bonds to the point that all sense of community or belonging is lost.
In this case the ability to use integrative power to alter the course of the conflict is
very limited.

Upheaval Conflicts

Upheaval conflicts are conflicts that result from deep cleavages in society that develop
into massive, uncontrolled, and usually violent conflict. Revolutions are one common
example.
12
 

EXCHANGE PROBLEMS

Trading or exchange is the second fundamental form of power (the other two being
force and the integrative system).

Exchange problems are problems which prevent the negotiation of voluntary

agreements.

For more information about any of these topics, click on the title.
Limits to Agreement: Better Alternatives

Opportunities for a resolving a dispute by voluntary agreement are limited by the

parties' alternatives to that agreement. This is because disputants will usually not
accept any agreement that is worse for them than the outcome which they think they
can obtain in another way. For example, if a negotiated agreement requires
compromises that they think they can avoid with a show of force, force will likely be
used instead of negotiation.  Sometimes, however, parties have unreasonable
expectations of what they stand to achieve from negotiation or the continuation of the
conflict. If they think they can win more by continuing the conflict than is possible in
any circumstance, they may continue to pursue the conflict, even when it will actually
do them more harm than good.

Poor Timing

Parties sometimes attempt to negotiate an agreement when one or more key parties is
not ready. Usually this is because one or more disputants believe that they have some
other (usually force-based) option which will yield a better outcome than anything
they could get from negotiation. While this disputant may come to negotiations (just in
case they are wrong), they will probably not pursue the negotiations in earnest, and
will still rely on their alternative force-based strategy to get what they want.

Overlooking Ripe Moments for Negotiation

The opposite problem occurs when disputants do not recognize that a conflict is "ripe"
for negotiation. They may be so entrenched in their confrontational strategy that they
may ignore situations where negotiation would  likely be successful.

Refusal to Negotiate

Another important obstacle to successful negotiation is the common refusal of the

parties to come to the negotiating table. In some cases this refusal to negotiate results
from the parties' fear that they will be forced to accept unwanted compromises. In

13
 other cases the parties believe that negotiations are a waste of time since they will
require substantial resource commitments and are doomed to failure. Parties to a
protracted, escalated conflict may be so angry with each other that they will not pursue
or accept a mutually beneficial agreement, because they do not want to do anything
that will help their opponent.

Attempting to Negotiate Non-negotiable Issues

When people try to negotiate non-negotiable issues--and fail--they often lose faith in
the negotiation process completely. This sometimes makes them unwilling to try
negotiation for anything, even when it is likely to work.

No Legitimate Party to Negotiate With

Sometimes one side wants to negotiate, but there is no legitimate representative of the
other side to negotiate with.  If an attempt is made to negotiate with someone who
does not legitimately represent the opponent, the effort is likely to fail.

Wrong (or Missing) Parties at the Table

If negotiation or mediation is undertaken with the wrong parties at the negotiating

table, the results will not be successful. Typical problems are that the people at the
table do not really represent the constituencies or groups that they are supposed to
represent, or they do not have decision-making authority, or even links to it. Another
problem is that critical parties are missing from the table--either because they were not
invited, or because they chose not to come. Either way, this is likely to cause problems
later on when a decision is reached which does not represent the interests of all the
concerned or affected groups.

Lack of a Negotiating Forum

Sometimes disputants might be willing to negotiate, but there is no forum in which

negotiation can be pursued.

Distrust

When parties distrust each other--as they often do after a protracted conflict--it can be
very hard to come to any agreements, because both sides will fear that the other side
cannot be trusted to keep its promises.

Requests to Abandon Power Options as a Precondition to Negotiation

In many cases potential participants in agreement-based dispute resolution processes

(such as negotiation) are asked to abandon their forced-based options as a pre-
condition for participation. While this is something that less powerful parties are likely
to favor, more powerful parties are likely to refuse to participate under such
conditions.

Attempts to Unfairly Distribute the Benefits of Agreement

14
 Opportunities for mutually beneficial agreement are sometimes lost because the
parties feel that the other side would win too much and that they would not win
enough.

All or Nothing Approach

Sometimes disputants will refuse to consider any type of mutually beneficial

agreement or relationship until the core intractable issues have been resolved. Usually,
they hope that withholding normal relations will pressure an opponent into making
concessions. While this strategy may be effective at times, it also blocks the
relationship-building activities which can provide a basis for constructively addressing
the core issues. A similar problem is that disputants may be unwilling to pursue a
short-term agreement and partial victory, because they fear that such an approach
would undermine their long- term prospects of pursuing their goals.

Scale-Up Problem

Typically efforts to transform intractable relationships and negotiate dispute

settlements take place in carefully facilitated small-group settings. However, these
conflicts generally involve large segments of the population-- far more people than
could ever be involved in such small group processes. This means that participants in
small group processes must be able to "scale-up" their experiences or risk being
rejected by their constituents.

Inexperienced Parties

Negotiation is a social process in which training and experience increases

effectiveness. This  places less experienced parties at a considerable disadvantage
when they negotiate with more experienced parties.

Poor Process or Structure

Sometimes negotiation is attempted, but the procedures used are so flawed that it
cannot succeed, even when the potential for a win-win outcome exists.

Power Imbalances

Mediators often argue that in mediation, the parties all have equal power. However,
this is seldom true. If one disputant has much more power than another in the outside
world, this will be true at the negotiating table as well. Although an agreement may
still be reached, it is likely to mirror the outside power distribution of the parties. This
is true outside of negotiation as well, as higher-power parties tend to prevail in most
decision-making systems.

Third Party Not Effective or Credible

15
 Sometimes negotiation will be started with a third-party mediator, but that mediator
lacks the ability or credibility to work effectively with all of the parties. If parties do
not trust the mediator's fairness, they are likely to withdraw from the negotiation.

Failed Mediation

If mediation is tried and fails because of poor timing, poor process, or a poor mediator,
disputants may be unwilling to try it again, even when conditions are better.

16
 4. Negotiation Styles in Mediation
In mediating conflicts, it helps to understand the five styles of dispute resolution most often
used by negotiators. Often, the various styles need a mediator to buffer the interactions and
turn a toxic negotiating atmosphere into a successful mediation.

A. The five methods of negotiation are:

1. Attack or fight. This type of negotiator is often called an aggressive negotiator.

2. Appease or attempt to convert. This type of negotiator is often called a cooperative

negotiator.

3. Flee or attempt to evade the problem. This kind of negotiator is often called a distractor.

4. Displace or analyze the problem. When a man is told not to come in to the office today
because it has burned down and responds by analyzing the changes in traffic patterns the fire
trucks will have made, he is engaging in displacement. This kind of negotiator is often called
an analyst.

5. Truth seeking. This kind of negotiator is often called an idealist.

B. Understanding And Dealing With Each Style

1. Negotiators who tend to fight share the following characteristics:

Goals

They seek to win. The goal is victory, defined as maximizing the client's outcome and
outmaneuvering or beating opposing counsel.

Traits

They make threats, insult, withhold information, "stretch" the facts, and demand one-sided
gains.

2. Negotiators who tend to appease share the following characteristics:

Goals

They seek to act fairly. The goal is agreement, defined as reaching a "fair" result for their
client, with a high value placed on the relationship between the attorneys and the clients.

Traits

17
They are courteous, realistic in positions, and openly share information. They also often make
one-sided concessions with the expectation that the opponent is morally obligated to
reciprocate.

3. Negotiators who tend to flee or dither share the following characteristics:

Goals

They seek to win but are uncertain what that means. The goal is survival, defined as not losing
or being beaten.

Traits

They dither between three patterns: attack, appeasement and hiding/delaying/stalling. Many,
many attorneys who are thought of as "attack" or "appeasement" negotiators are actually
dithering attorneys whose strategy of dithering emphasizes either attacking or appeasement
(but includes the other two patterns).

They are often noncommittal, with the desire of avoiding loss or harm. In an attack orientation
the bottom line is "what can I conquer or take?" In appeasement, it is "what can we work out
or create?" In dithering: "what can I avoid losing?"

4. Negotiators who tend to analyze share the following characteristics:

Goals

They seek to understand. The goal is solving the problem (often independent of the parties
benefit) and increased understanding.

Traits

They are thoughtful and act independent of trust. Where an appeaser can not work with you if
he or she does not trust you, and a ditherer will not trust you (even as he or she works with
you), an analytical attorney does not see trust as an important issue. They tend to rely on
objective criteria and to seek multiple options -- even where there is only one solution.

5. Negotiators who tend to level or seek the truth share the following characteristics:

Goals

They seek abstract truth or justice often without regard to human factors or reality. They often
have a single "truth" (e.g. global warming or global cooling) that dominates them in spite of
rational considerations (pro or con. They may well be right in their "truth" but reason isn't
why they hold to it).

Traits

Honest, sincere, dedicated. Often intense, inflexible and idealistic.

C. Applying Mediation to the Process.

18
One reason that mediation works very well in improving the negotiation process is because it
helps defuse the natural conflicts created by differences in negotiation styles.

Mediation is generally set up in a structure that isolates parties from style conflicts. The
parties take fixed positions prior to the mediation meeting. The parties present their sides of
the conflict with minimal interruption. The parties then retire to caucuses (separate areas) and
the mediator shuttles back and forth with offers, positions, questions and information
reworded in more neutral terms by the mediator.

The most common contemporary mediation process tends to take the style out of the process
and reduces the matter to positional shifts and objective statements. It should be remembered
that mediation made substantial improvements in its success rates when this basic format
became the standard or common format for mediating disputes.

One of the reasons for the improved success rate of mediation when using the modern format
is that negotiations that were floundering because of style conflicts in the old format had the
element of style conflicts taken out or reduced by the new format.

As a mediator, by being aware of the various styles, you can seek to use the process to
improve the interactions and the results. When negotiations hit a bottleneck or a seemingly
impossible conflict of personality, by being aware of these issues you can aid mediation work
to resolve the matter by removing the issue of style conflicts.

19