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.