Negotiations Chapter 19
five core determinants of negotiator trust in mediators
1. mastery 2. explanation 3. warmth and consideration 4. chemistry 5. impartiality
resolve conflict roles
1. mediator - help parties reconcile differences 2. arbiter - choose from opposign positions 3. equalizer - ensure voices of weaker are heard 4. healer - ensure emotional aftermath is managed
final offer arbitration
choice is severely constrained, arbitrator must choose without amendment one of the positions presented by the disputing parties
informal third party intervention
incidental to the negotiation
contexts mediation is used
malpractice suits, tort cases, liability claims, pretrial diversions of alcohol cases, business disputes, divorces
inquisitorial intervention
most common. manager exerts high control over process and decision. tells both sides to present cases, asks questions, invents solution and imposes it. LIKE EUROPEAN COURTROOM
total settlement package arbitration
multiple issues
thibaut and walker framework
negotiators may surrender control over neither, either, or both of the process of the dispute and the outcome of the dispute
binding arbitration
requires parties to comply with the decision either by law or contractual agreement
arbitration
resolves disagreement by having a neutral third party impose a decision. allows negotiators to have considerable control over process but not outcomes
imposed
those in which the third party makes a binding decision that the parties must live with. most common form of imposed ADR
ten hallmarks of transformative mediation
1. describe roles and objectives based on empowerment/recognition 2. leave responsibility for outcomes with parties 3. consciously refuse to be judgmental about the parties views and decisions 4. take optimistic view of parties competence and motives 5. allow/be responsive to parties emotions 6. allow and explore parties uncertainty 7. remain focused on here and now 8. be responsive to past events 9. view intervention as one point in larger sequence of conflict interaction 10. feel a sense of success when empowerment and recognition occur
third party rules
1. first, do no harm 2. intervene only when necessary and control only as much as necessary to enable the parties to find resolution
prevent conflicts - escalates here bc
1. frustrated needs 2. poor skills 3. weak relationships
two forms of mediator bias
1. general alignment or affiliation with parties prior to mediation 2. greater support of one side during mediation
sequence of issues to be discussed
1. gradualism 2. boulder in the road 3. committee strategy
advantages of arbitration
1. imposes a clear cut resolution to problem 2. helps parties avoid costs of prolonged unresolved disputes
managers three dominant styles
1. inquisitorial intervention 2. adversarial intervention 3. providing impetus
conditions where third party intervention may help
1. intense emotions preventing settlement 2. poor communication 3. misperceptions 4. repeated negative behaviors 5. serious disagreement over data 6. disagreement of number/type of issues disputed 7. incompatible interests 8. unnecessary value differences divide parties
limitations of third party intervention
1. involvement of third parties signals that the negotiation process has stalled 2. parties may have failed to build relationships or manage interdependence
contain conflict - escalates here bc
1. lack of attention 2. lack of limitation 3. lack of protection
disadvantages of mediation
1. lack of impetus to adhere to settlement 2. possible perpetuation of dispute indefinitely 3. possible escalation of dispute into more damaging costly forms
why third parties get involved
1. legal requirement 2. diplomacy 3. contractual obligation 4. parties asked for help
stages of mediation process
1. premediation preparation (1-5) 2. beginning stages (6&7) 3. middle stages (8-10) 4. ending stages (11&12)
the third side when third parties can influence conflict
1. prevent conflicts 2. resolve conflicts 3. contain conflicts
six broad categories
1. preventative 2. negotiated 3. facilitated 4. fact finding 5. advisory 6. imposed
Carnevale's four basic mediation strategies
1. problem solving 2. compensation 3. pressure 4. inaction
thibaut and walker's two stages of dispute resolution
1. procedural (evidence gathered) 2. outcome (evidence evaluated)
prevent conflict roles
1. provider - enable others to fulfill needs 2. teacher - educate people in skills of managing 3. bridge builder - find ways to bring parties together to improve relationships in order to avoid conflict escalation
four key conflict dimensions disputants should consider if engaging with mediator
1. quality of conflict - intensity and destructiveness 2. quality of relationship among disputant 3. quality of context - constrained v. flexible 4. quality of process and issues - overt v. covert
mediator orientations
1. settlement 2. problem solving
forms of arbitration
1. single issue 2. total settlement package 3. voluntary 4. binding 5. crafting 6. final offer
disadvantages of arbitration
1. the chilling effect 2. narcotic effect 3. half life effect 4. biasing effect 5. decision acceptance effect
complaints about ADR
1. unequal access to ADR 2. lack of diversity to ADR professionals 3. uneven ability to ADR professionals
conflict costs for organizations
1. wasted time and money 2. low levels of disputant satisfaction 3. damage to relationships 4. conflict spreading/recurring
contain conflict roles
1. witness - contain conflict by watching 2. referee - place limits on tolerated behaviors 3. peace keeper - intervene to prevent violence
managers as third parties chose to impose outcomes about __________ of the time and even more when they perceived the disputants as being uncooperative
2/3
transformative mediation
A style of mediation that focuses on resolving the underlying conflict between the parties and validating their feelings of worth and dignity. 1. empowers negotiators to express themselves 2. increases capacity of neogtiators to recognize others perspective
arbitration mediation
An arbitrator makes a decision and places it in a sealed envelope. Both parties then work through mediation. If they cannot reach an agreement, the arbitrator's decision becomes binding.
Mediation-Arbitration
If the parties cannot reach a settlement through mediation, an arbitrator will resolve the dispute. reduces chilling effect
process consultation
a set of activities on the part of the consultant that helps the client to perceive, understand, and act upon the process events which occur in the client's environment
most critical skill for successful mediators
ability to develop rapport with disputants
effectiveness of mediation comes from
ability to meet with parties individually, secure understanding of the issues in dispute, identify areas of potential compromise, and encourage the parties to make concessions toward agreement
decisions made by private third parties
administrative decision, arbitration
rapport
an empathetic, trusting relationship
ADR
any process of proceudre other than adjudication by a presiding judge to resolve a dispute
decision acceptance effect
arbitrated disputes may engender less commitment to the settlement than alternative forms of dispute resolution
crafting arbitration
arbitrators are free to craft and reach any resolution they deem appropriate
biasing effect
arbitrators must be careful that their decisions do not systematically favor one side or the other and that they maintain an image of fairness and impartiality
half life effect
as the demand for arbitration increases, sheer number of decisions required and likelihood those decisions will not please one or both sides increase as well
disadvantages of mediation
can take a large investment of time and resources and not always effective
preventative
companies adopt to prevent disputes
what makes ADR affective
company committing to make it work as an alternative to litigation
grievance arbitration
decisions about the interpretation of existing contracts
formal third party intervention
designed intentionally, in advance, and follow a set of rules or standards
behaviors perceived as negatively related to success
displaying expertise, criticizing, asking embarrassing questions
metadispute
dispute about the dispute
arbitration most often used where?
dispute resolution for labor relations and violations of legal contracts
providing impetus
do not exert control over decision and small over process. makes quick diagnosis of conflict and tells parties if they dont find a solution, they will impose one
flaws of carnevale's model
does not account for power imbalances or mediators aspirations
behaviors perceived as posiitvely related to success
empathy, creating and controlling agenda, helping establish priorities, maintain calm firm control
issue intervention
enabling parties to prioritize issues
process consultation attributes
experts in the technique clearly neutral authoritative
positive framing of issues
focusing on desired, positively stated outcomes
content intervention
helping parties mange tradeoffs. most effective
compensation
high aspirations, low common ground. application of rewards and inducements to entice parties into making concessions/agreements
problem solving
high concern for aspirations and hih perception. assisting parties engage in integrative negotiation
adversarial intervention
high control over decision but not process. does not ask questions but passively listens to each side then tells parties how to solve conflict. LIKE AMERICAN COURT
deal makers
high degree of issue management, issue packaging, coordination of exchanges between parties
decisions made by legal third parties
judicial decision, legislative decision
mediator power
larger when mediators have access to resources negotiators want such as preferred trade status etc.
mediation vs. arbitration
less costly and time consuming produces greater satisfaction
orchestrators
less issue specific style but more oriented toward sequencing conversations between parties
ombudsperson
like a mediator but frequently takes strong advocacy for weaker parties to ensure theyre heard
ADR inspiration
litigation is only effective for certain types of disputes. frank sander tried to create other mechanisms to manage disputes
inaction
low aspiration, high common ground. standing back from dispute, leaving parties to work things out
pressure
low aspirations, low common ground. trying to force parties to reduce levels of aspiration for an integrative resolution
beginning stages
managing the exchange of proposals and counterproposals
problem solving orientation
marked by attempts to deal with underlying problems and including departures from strict neutrality
settlement orientation
marked by strict neutrality and a narrow focus on arriving at a specific resolution
negotiated
mechanisms that allow parties to resolve their own disputes without help of third party
premediation preparation
mediator attempts to get to know parties, gain confidence, understand process, improve relationship between parties
gradualism
mediator starts by addressing simpler issues and moves to more complex issues as the discussion progresses - used most
strategic choice model of mediator behavior
mixture of high or low levels of two variabiles 1. concern for disputing parties aspirations 2. perception of parties common ground
extralegal decisions
nonviolent direct action, violence
moore's conflict management continuum
organizes conflict management into increasing order according to the amount of coercion used by third parties to convince negotiators to accept and endorse third party settlement 1. decision made by negotiators 2. decision made by private third parties 3. decision made by legal third party 4. extralegal decisions
committee strategy
parties are divided into subgroups to deal with different issues
voluntary arbitration
parties submit their arguments but they are not required to comply with arbitrators decision
faciltated
provide neutral third party who assists the parties in negotiating resolution
behaviors perceived as unrelated to success
providing reassurance, order keeping, experience
mediator is more effective with moderate conflict
situations in which tension is apparent and tempers are beginning to fray but negotiations have not deteriorated to the point of physical violence or irrevocably damaging threats and actions
ripeness
successful if mediation occurs when the parties are open to receiving help. enough pain to inspire motivation to settle, not too muhc pain to cause lasting animosity
objective of process consultation
to defuse the emotional aspect of conflict and improve communication between parties leaving them able to manage future disputes
when is process consultation used
to improve longstanding relationships that the parties want to continue
advisory
use expertise of a third party to determine what the resolution would likely be if the dispute when to arbitration, court, etc
fact finding
use the technical expertise of third parties to determine facts andh ow theyre interpreted
indirect pressure
wearing the parties down over time and increasing the cost of holding out
interest arbitration
when a new contract is submitted to arbitration
narcotic effect
when arbitration is anticipated as a result of failure of parties to agree, negotiators may lose interest in the process. passivity, dependence on third party
direct pressure
when mediator uses tactics to encourage parties to soften their positions
chilling effect
when parties in a negotiation anticipate that their own failure to agree will lead to binding arbitration, they may stop working seriously for a negotiated settlement. affraid arbitrator will split the difference between stated positions
when to use mediation
when ripe, when mediator is acceptable to all parties
boulder in the road
where the mediator begins with the most complex issues in order to identify if the conflict is ripe for resolution
main types of mediators
1. deal makers 2. orchestrators
when third party intervention is appropriate
1. after negotiators make realistic effort to resolve their own disputes 2. initiated when managers believe they can no longer manage situation on their own 3. both parties see the need for TPI 4. have considered litigation and BATNAs
healthy ADR systems have five features
1. all encompassing 2. conflict competent culture 3. multiple access points to the system 4. options and choices 5. institutionalized system
judgments along 5 dimensions account for managers choice of intervention
1. amount of attention manager gives to parties statements of issues 2. degree of voluntary acceptance of the solution proposed by the third party 3. third party vs. disputant control over shaping the outcomes 4. third party's personal approach to conflict 5. third party's personal approach to conflict
formal intervention methods
1. arbitration 2. mediation 3. process consultation
what undermines ADR systems
1. belief winning is only thing that matters 2. perception of ADR as alternative to litigation rather than preferred alternative 3. perception ADR is litigation in design
influence zone of potential agreement in two ways
1. by asking which aprty what he or she thinks the other party would accept 2. by asking each party to suggest a range of outcomes he or she would accept
benefits of third party intervention
1. can provide and enforce stability, civility, forward momentum needed to address problems 2. create breathing space or cooling off period 3. reestablish or enhance communications 4., refocus on the substantive issues 5. remedying or repairing strained relationships 6. establishing time limits/deadlines 7. salvaging sunk costs 8. increasing levels of negotiator satisfaction and commitment to resolution process/outcomes
disadvantages of arbitration
1. chilling/narcotic effects 2. removal of outcome control 3. possible lack of commitment
resolve conflict - escalates here bc
1. conflicting interests 2. disputed rights 3. unequal power 4. injured relationships
three types of mediator interventions
1. content 2. issue 3. positive framing of issues
hurting stalemate
Theory that conflict resolution truly begins when both sides realize that they cannot win and that the costs of fighting have risen too high.