Six Tips fo Women Negotiators

"1. Get optimistic and set yourself high goals
2. Be prepared. Look for information in unexpected places.
3. Create a support network and search out a mentor.
4. Negotiate the relationship – just how do you want them to see you ?
5. Look for signals that your being a woman is the (unspoken) issue.
6. Work on projecting confidence."

Read more in EuropeanPWN - Do women negotiate differently from men?


Designing an Effective Workplace Dispute Resolution Program

An excellent article from Strategic HR Lawyer about the importance of design in administering workplace dispute resolution (DR) programs contains the following insights:

"The design of the program is critical to its success...The most effective programs are those that focus not only on legal compliance and litigation avoidance, but also focus on fairness. In addition, organizational support and the availability of professional resources to assist employees will promote this goal. Some of the systems characteristics that are important include:

-Availability of expert resources to aid employees in
the processing of their grievances
-Level of input employees have into the process
-Impartiality or degree of independence from management
of the person making the actual decision
-Timeliness and speed of the process
-Consistency with which complaints are resolved
-Degree of top management and line management support
of the program
-Extent to which the process fits the organizational culture...

Organizational research clearly demonstrates that the most effective DR programs are those that promote fairness and objectivity. Often, employees are less concerned about the outcome than they are about the process itself. Thus, if employees view the process as one that is fair and equitable, they are less likely to doubt it or ultimately challenge its findings.

The following are some suggested concepts to discuss when designing a DR program:

-Are the individuals who are charged with administering
the program properly trained?
-Are the individuals charged with administering the program
-Is the outcome of the process clearly explained to the complainant?
-Is there an appeal mechanism that is administered consistently and fairly and more than merely a “rubber
stamp” for management?
-Are delineated timelines realistic and followed consistently?
-Are employees involved in the administration of the system?
-How impartial or independent of management is the
fact finder in any investigation or review of a complaint?
-How impartial or independent of management is any
-Does the process itself fit within the organization’s
-Does top management support the program, or does it
exercise discretion to resolve matters outside of the program in a seemingly arbitrary manner?

Legal standards of compliance for DR programs do not necessarily effectively address all of these due process issues. The gap between passing legal muster and one that
addresses these due process issues is often the hallmark of a successful program versus a merely adequate program."


Business Tools for Negotiation

These BNET: Business Tools for Busy Leaders cover everything from initiating a conversation to uncovering lies to getting everything in writing, including the following:

"Strategic Sourcing: Contract Negotiation
Good contracts thoroughly document the business and legal agreements that govern a business relationship, and they should be relatively easy to follow and understand. This article defines eight critical issues to consider during the negotiation and documentation of successful contracts.

Ten Lessons in Detecting Deception
Most people think they can detect deception, but most over-estimate their ability to do so. For the negotiator, this misapprehension can have severe consequences. This article offers suggestions for understanding the limitations of perception and better identifying and dealing with deception.

Using the Six Laws of Persuasion During Negotiation
To be successful in negotiations, you have to "sell" your ideas and, in a win-win situation, provide the other side with a fair deal. You must appeal to the intellect using logical and objective criteria as well as engaging the emotions of the negotiators. The result of a successful negotiation is that all parties should believe they got a good deal.

What To Watch For When It's Time to Get the Deal in Writing
Most people think of negotiating as the verbal give and take that brings two opposing parties to a point of agreement. That is the heart of negotiating, but just as important is the transition to the written contract that formalizes the verbal agreement. This article outlines key steps in developing a written contract.

27 Principles Of Negotiating
If people ask for something before a contract is signed, it is called negotiating. If they ask for something after a contract is signed, it is called begging. In business, it's better to be a good negotiator than an expert beggar. This concise article covers the basics of negotiating, including some fundamental principles and negotiating tactics."


Overview of Negotiations and Conflict Resolution Principles

This webpage of Professor E. Wertheim, College of Business Administration, Northeastern University, provides an excellent overview of relevant concepts and suggestions for more effective negotiations, including the following:

"Pay particular attention to these generalizations:

Conflict is an ongoing process that occurs against a backdrop of continuing relationships and events;

Such conflict involves the thoughts, perceptions, memories, and emotions of the people involved; these must be considered.

Negotiations are like a chess match; have a strategy; anticipate how the other will respond; how strong is your position, and situation; how important is the issue; how important will it be to stick to a hardened position

Begin with a positive approach: Try to establish rapport and mutual trust before starting; try for a small concession early

Pay little attention to initial offers: these are points of departure; they tend to be extreme and idealistic; focus on the other person's interests and your own goals and principles, while you generate other possibilities"


"Keys to Integrative Bargaining

Orient yourself towards a win-win approach: your attitude going into negotiation plays a huge role in the outcome

Plan and have a concrete strategy...be clear on what is important to you and why it is important

Know your BATNA (Best Alternative to a Negotiated Alternative)

Separate people from the problem

Focus on interests, not positions; consider the other party's situation:

Create Options for Mutual Gain:

Generate a variety of possibilities before deciding what to do

Aim for an outcome based on some objective standard

Pay a lot of attention to the flow of negotiation;

Take the Intangibles into account; communicate carefully

Use Active Listening Skills; rephrase, ask questions and then ask some more"


Coming At Conflict With Compassion

"To resolve conflict, no matter how exasperating the disagreement at hand, we should approach our adversary with an open heart laden with compassion. Judgments and blame must be cast aside and replaced with mutual respect. Conflict is frequently motivated by unspoken needs that are masked by confrontational attitudes or aggressive behavior. When we come at conflict with love and acceptance in our hearts, we empower ourselves to discover a means to attaining collective resolution...

Make a conscious effort to release any anger or resentment you feel...This can help you approach your disagreement rationally, with a steady voice and a willingness to compromise...

Examine your thoughts and feelings carefully. You may discover stubbornness within yourself that is causing resistance or that you are unwittingly feeding yourself negative messages about your adversary. As your part in disagreements becomes gradually more clear, each new conflict becomes another chance to further hone your empathy, compassion, and tolerance."

Read more in this DailyOM post.


Conflict Resolution in Ten Steps

Darren Rowse offers these 10 Steps to Conflict Resolution in the context of attempting to resolve disputes among bloggers. He notes that the points come out of a resource by the ‘Prepare/Enrich’ marriage counselling program and are designed for couples working through specific areas of conflict in an ongoing relationship. He contends, and I agree, they have more general application. The ten steps are:

"1. Set a time and place for discussion...
2. Define the problem or issue of disagreement...
3. How do you each contribute to the problem?...
4. List past attempts to resolve the issue that were not successful...
5. Brainstorm. List all possible solutions...
6. Discuss and evaluate these possible solutions...
7. Agree on one solution to try...
8. Agree on how each individual will work toward this solution...
9. Set up another meeting. Discuss your progress...
10. Reward each other as you each contribute toward the solution..."

Mediation is Good for Business

"Madison, Wisc.-based attorney, Terry Peppard, says that mediation, 'is now an exceptionally well-proven business process, and there should be no business executive anywhere in America who is not intimately familiar with the mediation process and its benefits.' Peppard, who recently published Arbitration and Mediation of Business Disputes says, 'You can't be a good executive if you don't know that this is out there and what it can do for you.' According to Peppard, there are several instances when mediation is the 'best way for a business to go.' These are when:

• It is important to maintain a valuable business relationship between the parties while still resolving the dispute.

• It is important for a client to avoid disclosure of confidential business data.

• It is important that the case be resolved as fast as possible to avoid disrupting business operations."

For more, including links to attorney Peppard's article and other related links and items, see this National Arbitration Forum Blog post.


Conflict is Unavoidable; Suffering is Optional

"Conflict is an unavoidable part of business life...If disagreements or misunderstandings between team members or departments is hurting productivity, it's time to find a solution. It's easy to hope things will blow over, but that rarely happens. You need to open lines of communication, resolve differences, and put the focus back on getting work done.

These BNET resources will help you improve your own conflict resolution skills and avoid the worst conflicts in the future:

Alternative Dispute Resolution...
Alternative dispute resolution, particularly if it is entered into voluntarily by the parties rather than being forced on them by a court order, can bring with it substantial savings in time, money, and the expenditure of human resources that would otherwise be needed to engage in a long and stressful court battle.

Is Conflict Prevention the Same as Conflict Avoidance?
Some people think that prevenging conflict is the same as avoiding conflict, which is not the case. This article describes the difference between the two approaches, and how conflict prevention involves the elimination of unnecessary conflict in the workplace.

Conflict Coaching for Leaders
Conflict arises from a clash of divergent perspectives and ideas on a particular issue. Several methodologies are available for amicable resolution of conflicts. Conflict coaching is an individualized approach towards imparting conflict resolution skills in leaders and managers. It provides a practical forum for those whose effectiveness suffers due to the lack of conflict competence. The paper examines the nuances of conflict coaching and discusses issues involved therein.

Conflict and Cooperation in the Workplace
In the workplace, you are likely to find two forms of conflict. The first is conflict about decisions, ideas, directions and actions. The second form, "personalized conflict" is often called a personality conflict. In this form, the two parties simply don't like each other much. This article reveiws elements of both types conflict, how they escalate over time, and how to use a few general strategies to deal with them.

Seven Tips for Cross-Cultural Conflict Resolution
Team members work in increasingly diverse environments. They include age, gender, race, language, and nationality. Beyond these differences, there are also deeper cultural differences that influence the way conflict is approached. One reason that teams fail to meet performance expectations is their paralysis through unresolved conflict. The paper discusses the impact of culture on the prevention and resolution of conflict in teams and suggests seven ways to resolve problems.

Tough Conversations at the Top
Managers spend an inordinate amount of time putting out fires, particularly interpersonal ones. It is not uncommon for a manager to spend 20 percent of his or her time managing conflict of one degree or another. Conflict is not something to be suppressed in an organization, nor is it to be ignored. There is a strong link between the ability to resolve conflict effectively and being perceived effectiveness as a leader. Managers who resolve conflict by perspective taking, creating solutions, expressing emotions and reaching out are considered to be more effective. Executives who demonstrate these behaviors are seen as successful and more suitable for promotion.

Conflict Resolution Training Helps...
Most senior managers and line managers do not recognize the incredible cost of conflict to organizations. Conflict resolution programs can defuse problems before they escalate to strikes or lawsuits, as well as improve employee morale, increase productivity, decrease absenteeism, and lower turnover. Employees can resolve some issues without involving senior management, and without increasing tensions on the floor."

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Stages of Collaboration

"A typical collaborative process has three well-defined stages, each containing a number of steps, tasks or objectives...

Stage 1: Getting Started: The Pre-Deliberation Phase
A stakeholder or a trusted outsider raises the possibility of collaboration and initiates the process. Following initiation, the pre-deliberation, or planning stage, should be carried out with a group of stakeholders who are knowledgeable about, and committed to the issue and are willing to participate in the process from the beginning...

Stage 2: Searching for Agreement: The Deliberation Stage
Once all the stakeholders have been contacted, the first meeting convened, and the protocols ratified, the participants can begin to deliberate the substantive issues...

Stage 3: After the Agreement is Reached: The Post-Deliberation Phase
Once an acceptable solution has been identified, it must be approved and implemented by all responsible parties..."

Read more in this NC State webpage.


Guy Kawasaki on Negotiation

"How to negotiate. Don’t believe what you see in reality television shows about negotiation and teamwork. They’re all bull shiitake. The only method that works in the real world involves five steps: (1) Prepare for the negotiation by knowing your facts; (2) Figure out what you really want; (3) Figure out what you don’t care about; (4) Figure out what the other party really wants (per Kai); and (5) Create a win-win outcome to ensure that everyone is happy. You’ll be a negotiating maven if you do this."

From this Guy Kawasaki post

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Detecting Lies

"Watching facial expressions in order to determine whether a person is lying might just save you from being a victim of fraud, or it could help you figure out when somebody's being genuine. Jury analysts do this when assisting in jury selection. The police do this during an interrogation. A lie detector of course does this, but is a little heavy to carry with you. Therefore, you have to learn the little facial and body expressions that can help you learn to recognize a lie from the truth."

Read more in this WikiHow article.


Negotiation Fundamentals

"Nearly all negotiations are characterized by four phases - preparation, opening, bargaining and closing...

Most negotiations are defined by 3 characteristics:

There is a conflict of interest between two or more parties. What one wants is not necessarily what the others want.

Either there is no established set of rules for resolving the conflict, or the parties prefer to work outside of an established set of rules to develop their own solution.

The parties prefer to search for an agreement rather than to fight openly, to have one side capitulate, to break off contact permanently or to take their dispute to a higher authority...

The actual negotiation process depends on the following factors:

The goals and interests of the parties
The perceived interdependence between the parties
The history that exists between the parties
The personalities of the people involved
The persuasive ability of each party...

There are two types of negotiation process that differ fundamentally in their approach and in the relative prospects for the stability of the agreement that is reached.

The first is called the integrative or win/win approach. In these negotiations the prospects for both sides gains are encouraging. Both sides attempt to reconcile their positions so that the end result is an agreement under which both will benefit - therefore the resultant agreement tends to be stable. Win/win negotiations are characterized by open and empathetic communications and are commonly referred to as partnership agreements.

The second is called the distributive or win/lose approach. In these negotiations each of the parties seeks maximum gains and therefore usually seeks to impose maximum losses on the other side. This approach often produces agreements’ that are inherently unstable..."

Read more in this Negotiating Skills Online Tutorial.

Groucho on Contract Negotiation

ContractsProf Blog provides a link to a classic clip of the Marx brothers on contract negotiation and formation from A Night at the Opera.


Adopt an Outsider's View of Negotiations

"Just as intuition biases your vision, it can sabotage your negotiations without your awareness. This article [from HBS Working Knowledge] explores why we often think irrationally—and why, even when the stakes are high and mistakes are costly, we sometimes are unable to overcome our psychological biases..."

The article stresses the advisability, particularly in complex and emotionally charged situations, of resisting "System 1" thinking and employing "System 2" thought.

"System 1 thought describes our intuition: quick, automatic, effortless, and influenced by emotion. By comparison, System 2 thought is slower, more conscious, effortful, and logical."

The authors offer four strategies "to help you guard against falling back on your intuition during times of stress and indecision in negotiation.

Strategy 1: Make a System 2 list...identify situations that call for extra vigilance...

Strategy 2: Don't let time pressure affect your decisions...

Strategy 3: Partition the negotiation across multiple sessions...

Strategy 4: Adopt an outsider lens...the outsider uses rational, System 2 thinking...

Ask yourself this simple question: If someone I cared about asked me for my opinion in a negotiation such as this, what advice would I give?"

Avoiding Litigation Means Sometimes Having to Say You're Sorry

"Doctors' apologies for medical mistakes may not be a cure-all for litigation, but explaining unforeseen outcomes and making early settlement offers have proven effective, say lawyers who have participated in the process in the last decade.

The concept is called "full disclosure/early offer," and it's spreading...

Plaintiffs attorneys and defense attorneys agree that the program -- often referred to as Sorry Works! from The Sorry Works! Coalition, a Glen Carbon, Ill., advocacy group -- is a sound strategy miscast in the public perception as a touchy-feely ritual.

Sorry Works! founder Doug Wojcieszak said that health care providers "willing to admit when they have made an error and quickly get on top of it ... cut down on the anger that leads to litigation."

Read more in this Law.com article found via this Death and Taxes - The Blog post


International Negotiation Tips

"Just as in domestic negotiations, for international negotiations it is important to:

* Take time to learn the local customs and culture
* Know foreign expectations
* Have a well developed Negotiation Plan
* Take time to socialize before working
* Make sure opening demands are not too modest
* Provide enough time so as to not have to settle too quickly
* Avoid the attitude of “America’s way is best way”
* Not be afraid of silence
* Not disclose too much too soon
* Negotiate face to face
* Use win-win tactics"

Read more in this article from nextlevel purchasing.

Fear No Mediation

In a PLI All-Star Briefing, Judge Howard A. Tescher (17th Judicial Circuit, Broward County) examines why lawyers are suspicious of mediation and argues that they should not be, stating:

"Mediation offers the opportunity to explore the strengths and weaknesses of a given case or dispute with a neutral 'expert' trained to see if the matter can be resolved on terms that each party can accept, given the uncertainties of the arbitration or litigation process.

If you accept that mediation is a natural part of the dispute resolution process, as opposed to an alternative dispute resolution process, you will initiate discussions with opposing counsel about scheduling a mediation conference in the same manner that you would normally discuss setting discovery deadlines and final hearing or trial dates."


Global Dispute Resolution Resource

Baker & McKenzie has launched Dispute Resolution Around the World, an on-line global dispute resolution information resource. The site contains information on the legal systems of more than forty (40) countries, as far apart as Belarusse and Venezuela. The site "includes details of:

* the structure and authority of the various courts
* the organization and practice requirements of the legal profession
* essentials of litigation, from commencement of proceedings to allocation of costs through appeals
* enforcement of judgements, including recognition and enforcement of foreign judgements
* arbitration law and options for alternative dispute resolution."

From this LawFuel .com post.

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International Commercial Arbitration Offers Advantages

"International arbitration has two major advantages over litigation in national courts.

First, international arbitral awards are far more readily enforceable worldwide. More than 130 countries are signatories to the New York Convention 1958, which facilitates the recognition and enforcement of an arbitral award within each signatory country, notwithstanding that the award was rendered in a foreign jurisdiction.

Court judgments, on the other hand, are simply bare judgments which are unsupported by a multilateral enforcement treaty. By way of example, the United States is not a party to any treaty providing for the enforcement of its courts' judgments abroad.

The second major advantage of international arbitration is neutrality. Most corporations do not want to submit their disputes to a foreign court, and they certainly do not want to submit their dispute to the courts of their counterparty and thereby give away "home advantage."

International arbitration allows the parties to refer their dispute to a neutral forum which is acceptable to both parties, even if they are from entirely distinct legal and cultural backgrounds."

Read more in thisarticle from law.com that provides a practical guide to international commercial arbitration from the inception of the arbitration to the enforcement of a final award.

Found via this InhouseBlog post


The XYZs of Negotiating Tactics

"If you want to win at the game of negotiations, then you need to know the ploys, tactics and gambits that will give you an advantage over your opponents." So starts “The ABC of Negotiation Ploys and Tactics” by Eric Garner that explains the following useful negotiating concepts, ploys and tactics:

A is for Aristotle’s Appeals
B is for BATNA
C is for the Coquette Principle
D is for Dumb Is Smart
E is for Emotional Ambush
F is for Fait Accompli
G is for Gallipoli
H is for Hot Potato
I is for the Iroquois Preparation Method
J is for Just See If I Don’t…
K is for Knowing Your Opponents
L is for Later
M is for Modest Diffidence
N is for Needs Not Positions
O is for Obligation
P is for Power Ploys
Q is for Questions
R is for Reluctant Player
S is for Salami
T is for Tentative Overtures
U is for Uncertainty
V is for Variables
W is for Writing the Agreement
X is for Xchanging Concessions
Y is for Yikes, You’ve Got To Be Kidding
Z is for Zipped, or Keeping Your Mouth Zipped

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Fear of the "No"

Mark Monlux created a presentation as a contract tutorial for graphic designers, providing guidance on how to negotiate contracts, but it also offers a lot of good information about contract negotiation in general. I particularly enjoyed the part about the reluctance of graphic designers to use the "Power Word" - No.

"Fear of the No", i.e. fear of losing a project by not agreeing to all client demands, can and does lead to contractors involving themselves in unprofitable projects and otherwise frustrating their best intentions.

A well placed, "No, I can't perform effectively on those terms" or like utterance can enhance your credibility and help lead to a more satisfying experience for all concerned.


Technology Negotiations Can Be Difficult

"Whether you're bargaining over the purchase of a new companywide network, coping with a possible infringement of patented technology, or seeking better customer service from a software supplier, technology negotiations have become a fact of managerial life.

How do such negotiations differ from those that are less technologically complex? You can anticipate four specific problems to crop up more often in the technology arena:

1. Complexity. Negotiations over new technology require sophisticated knowledge of hardware or software that's beyond the scope of most managers. If those trained in science and technology assume that others at the table speak their language, serious misunderstandings can result.

2. Uncertainty. When highly complex systems are at stake, no one can be sure whether they will perform as promised when configured for a particular business environment. Different estimates of how a technology will perform can lead to negotiation battles.

3. Egos. Those who design or advocate for a new technology often become additional players when they have a vested interest in the outcome of a negotiation. Technology advocates—and their egos—can complicate otherwise straightforward talks.

4. Organizational change. The various organizational changes required by negotiated agreements can provoke conflict between parties during implementation. Staffers may have trouble maintaining or repairing new technology, accessing its intellectual underpinnings, or acquiring replacement parts..."

Read more in this article from HBS Working Knowledge from which the foregoing was excerpted.


ZOPAs & BATNAs & WAPs Oh My!

"A "Zone of Possible Agreement" (ZOPA) exists if there is a potential agreement that would benefit both sides more than their alternative options do...

In order for disputing parties to identify the ZOPA, they must first know their alternatives, and thus their "bottom line" or "walk away position."...

Roger Fisher and William Ury introduced the concept of "BATNA" (Best Alternative To a Negotiated Agreement). This is the best course of action that a party can pursue if no agreement is reached...

BATNAs determine each side's bottom lines... So, a zone of possible agreement exists if there is an overlap between these walk away positions. If there is not, negotiation is very unlikely to succeed...

If both sides know their BATNAs and walk away positions, the parties should be able to communicate, assess proposed agreements, and eventually identify the ZOPA. However, parties often do not know their own BATNAs, and are even less likely to know the other side's BATNA. Often parties may pretend they have a better alternative than they really do, as good alternatives usually translate into more power in the negotiations..."

Read more in this essay from beyondintractability.org .


Summary of "Getting to Yes"

In their classic text, Getting to Yes:

"Fisher and Ury explain that a good agreement is one which is wise and efficient, and which improves the parties' relationship. Wise agreements satisfy the parties' interests and are fair and lasting. The authors' goal is to develop a method for reaching good agreements. Negotiations often take the form of positional bargaining. In positional bargaining each part opens with their position on an issue. The parties then bargain from their separate opening positions to agree on one position. Haggling over a price is a typical example of positional bargaining.

Fisher and Ury argue that positional bargaining does not tend to produce good agreements. It is an inefficient means of reaching agreements, and the agreements tend to neglect the parties' interests. It encourages stubbornness and so tends to harm the parties' relationship. Principled negotiation provides a better way of reaching good agreements. Fisher and Ury develop four principles of negotiation. Their process of principled negotiation can be used effectively on almost any type of dispute. Their four principles are 1) separate the people from the problem; 2) focus on interests rather than positions; 3) generate a variety of options before settling on an agreement; and 4) insist that the agreement be based on objective criteria. [p. 11]

These principles should be observed at each stage of the negotiation process. The process begins with the analysis of the situation or problem, of the other parties' interests and perceptions, and of the existing options. The next stage is to plan ways of responding to the situation and the other parties. Finally, the parties discuss the problem trying to find a solution on which they can agree..."

Read more, including more detailed explanations of each the enumerated principles, in this excellent book summary from beyondintractability.org .

The First Offer Anchoring Advantage

Common wisdom for negotiations says it’s better to wait for your opponent to make the first offer. This article from HBS Working Knowledge, that is well worth reading in its entirety, suggests that in fact, you may win by making the first offer yourself, stating:

"Because of the inherent ambiguity of most negotiations, some experts suggest that you should wait for the other side to speak first. By receiving the opening offer, the argument goes, you'll gain valuable information about your opponent's bargaining position and clues about acceptable agreements. This advice makes intuitive sense, but it fails to account for the powerful effect that first offers have on the way people think about the negotiation process...

In situations of great ambiguity and uncertainty, first offers have a strong anchoring effect—they exert a strong pull throughout the rest of the negotiation... But why?

The answer lies in the fact that every item under negotiation (whether it's a company or a car) has both positive and negative qualities—qualities that suggest a higher price and qualities that suggest a lower price.

High anchors selectively direct our attention toward an item's positive attributes; low anchors direct our attention to its flaws. Hence, a high list price directed real estate agents' attention to the house's positive features (such as spacious rooms or a new roof) while pushing negative features (such as a small yard or an old furnace) to the back recesses of their minds. Similarly, a low anchor led mechanics to focus on a car's worn belts and ailing clutch rather than its low mileage and pristine interior..."


Reframing Provides Opportunity for Agreement

"Psychologists and therapists have long used a technique called reframing to assist patients with changing problem attitudes and behaviors. The idea behind reframing is 'to change the conceptual and/or emotional setting or viewpoint in relation to which a situation is experienced and to place it in another frame which fits the "facts" of the same concrete situation equally well, or even better, and thereby changes its entire meaning.'

Further, it has been stated that "‘our experience of the world is based on categorization of the objects of our perception into classes,’ and that ‘once an object is conceptualized as the member of a given class, it is extremely difficult to see it also as belonging to another class.’

With reframing, once we see ‘alternative class memberships,’ it is difficult to go back to our previously limited view of ‘reality.’” Reframing allows an idea or object to be thought of as fitting into a different category...

The role of the mediator is much like the role of the psychotherapist. Neither really possesses much power beyond that of persuading the people involved to accept the mediator’s/therapist’s frame of the problem. At the heart of this power for the mediator is not rational or logical argument. There exist rational arguments for each viewpoint.

But, the mediator can wield much influence if he or she does so indirectly in order to avoid hostile confrontation. A key element here is the ability to reframe...taking the framework that each participant in a conflict holds from one of negativity to one that focuses on the positive opportunities for resolution."

Read more in this mediate.com article from which the foregoing was excerpted.


Negotiating TIPs for Fun and Profit

"The first thing you must learn are the three variables of negotiation: time, information, and power. You can remember these easily with the acronym "TIP," so the next time you have to negotiate an agreement, you'll remember the "TIP" to think in terms of time, information, and power...The rule of time is that whoever has the loosest time constraints has an advantage in any negotiating situation...The rule of information is that whichever party has the best information has an advantage...The rule of power is that whichever party has the greatest perceived power has an advantage...The hungry person isn't going to get a good deal when negotiating for food, nor will the person who doesn't know what food is supposed to cost, nor will the person who has only one source for food.

Go for win-win or no deal...
Decide what you want in advance...
Commit everything to paper...If you don't get it down on paper, it's as if it didn't exist.
Never negotiate against yourself...
Everything is negotiable...Well, almost everything...
Realize and accept that not every deal is worth having..."

Read more in this article from Steve Pavlina from which the foregoing was excerpted.


Why Should I Settle?

As Perry Itkin points out, reasons exist to settle even a substantively "good case," commenting a recent lawsuit settlement with Wen Ho Lee, the American nuclear scientist once identified in news reports as the target of a government spying investigation.


Welcome to The Third Side

"No more critical challenge faces each of us, and all of us together, than how to live together in a world of differences. So much depends on our ability to handle our conflicts peacefully - our happiness at home, our performance at work, the livability of our communities, and, in this age of mass destruction, the survival of our species.

The Third Side offers a promising new way to look at the conflicts around us. The Third Side is the community - us - in action protecting our most precious interests in safety and well-being. It suggests ten practical roles any of us can play on a daily basis to stop destructive fighting in our families, at work, in our schools, and in the world.

Each of our individual actions is like a single spider web, fragile perhaps but, when united with others, capable of halting the lion of war. Although the Third Side is in its infancy in our modern-day societies, it has been used effectively by simpler cultures for millennia to reduce violence and promote dialogue."

Find out what it means to take the Third Side and who are the thirdsiders in any conflict by following this link to The Third Side a beautiful website from Global Negotiation Project at Harvard University.


Articles on Negotiating from Kauffman eVenturing

This collection of articles from Kauffman eVenturing "provides lessons learned in how to negotiate effectively to grow your company and practical philosophies on succeeding in the art of negotiations."

The collection includes an article by William Ury, distinguished global expert on negotiations and cofounder of the Program on Negotiation at Harvard Law School, in which he observes that people negotiate something daily in every part of their lives -- whether in the family, with friends, at work, or, as Kaufmann eVenturing stresses, especially in leading a growth company.

The Hidden Cost of Unhealthy Workplace Conflict

"Whenever people work together, conflict is an inevitable result...

In healthy conflict the issues are on the table being discussed with objective language. Each party is empowered to state his or her position with confidence that the other party is genuinely listening, wanting to understand. Possible solutions are explored with open minds, and ripple effects are considered and weighed for each solution offered.

It's an easy process to understand, but more often than not it's incredibly difficult to do...As a result, unhealthy conflict is common...People can get visibly angry and feelings get hurt. Words can become weapons that leave nasty scars.

In its most subtle form, unhealthy conflict disintegrates into tension...[that]results in chronically unresolved problems...

Daniel Dana, Director of Program Development for Mediation Training Institute International, identifies eight "hidden" costs of conflict that...every employer should be aware of...

1. Wasted time...
2. Reduced quality of decisions...
3. Loss of skilled employees...
4. Restructuring inefficiencies...
5. Sabotage/theft/damage...
6. Lower levels of motivation...
7. Absenteeism...
8. Health costs..."

Read more in this excellent article by Don Bobinski from which the foregoing excerpts were taken.


Metaphorically Speaking

I watched recently an episode of Star Trek the Next Generation in which an alien people spoke only using metaphors drawn from the stories and mythologies of their culture. Communication between the humanoids on the Enterprise with the aliens was impossible at first because the Enterprise crew did not know the stories. By the end of the show, Picard and crew had figured out enough to communicate important shared ideas that saved the Enterprise from destruction. The idea of using metaphors to communicate in conflict situations is the subject of this mediate.com article that explains:

"In conveying ideas we resort to metaphors which are very useful linguistic tools. In mediation, language is almost all we have to work with. Thus, an understanding of the metaphors we use in every day life is helpful in increasing the positive use of them in ways that enhance the mediation process. It is not a question of whether we use metaphors. The question is, which ones we use...

We each have an organizing metaphor we use for conflict. War is the most common metaphor for argument or conflict and people who use it as their organizing metaphor draw from the human experience of war. If we think that argument is war, we will use metaphors drawn from the human experience of war.

Lawyers engage in the adversarial process and most commonly use the conflict is war metaphor. They come to the session armed with the facts: the holster is transformed into a briefcase. They are ready to shoot down your argument. Is this why participants in a legal argument are often casualties? There are many injuries and, as with most wars, a victor and a loser, or two losers.

An alternative metaphor is that conflict is a journey. We have a destination (goals). We take the first steps towards an agreement. In looking at a problem we say "Well let's see where we go from here." Of course, not all journeys are smooth. We can run into heavy seas or hit a bump in the road...

There are a number of other useful categories:

conflict is a game: "would you like me to mediate your dispute or referee your fight?"
conflict is a chemical: If we can't find an immediate solution perhaps the problem will simply dissolve away."
conflict is a building: "You're not on firm ground." "Let's see if we can structure an agreement."
conflict is a gamble: "I'll take my chances in court. The odds are in my favor."

The choice of metaphor has an influence on the behavior of the participants because it sets tone to the negotiations...Mediation participants who invoke the war metaphor often also believe that all is fair in love and war. There will be a winner and a loser and the war tactics used to achieve victory are acceptable.

On the other hand, participants who invoke the argument-is-a-journey metaphor will take the first steps together; they will share the goal of the journey. When they get lost they will help each other find the way back to the common goal. They will, in fact, have to cooperate to complete the journey...

When people use a metaphor that is not consonant with their general view of the world, the metaphor can convey a belief that the individual does not hold. It also signals to the listener to expect a behavior that matches the metaphor...Thus, one task for the mediator is to help the clients use the metaphors that most closely express their view of the conflict and/or develop an organizing metaphor that is more conducive to cooperation and productive negotiations. When doing this I believe that indirect messages, such as careful use of alternative metaphors are usually more successful in creating change than direct or confronting messages. I operate under the assumption that my influence is best exercised through metaphors which influence the participant's metaphors..."


The Debate vs. Dialogue Debate

Here is a table from HBS Working Knowledge that lays out in a format easily grasped a point-counterpoint comparison of two approaches to conflict: debate vs. dialogue.

For example:

Debate involves assuming there is a right answer, and that you have it. Dialogue assumes that many people have pieces of the answer. Debate is about winning. Dialogue is about exploring common ground.


Tricks in the Trade

From an article from Warwickshire College:

You already know all the tricks people use in negotiations, because you've already heard them all or used them all yourself. Let's have a look at the more common ones.

"But that's all I can afford"

This may be absolutely true, or this may be a ruse to get you to discount or meet someone's price demand. If this is true then the person genuinely cannot afford what they want and should not be looking. If this is false then it's a nice try. In either case, standing up to this will force them to either back away or offer more...

From the other point of view, sales people will tell you that their price is already at rock bottom and they can't afford to discount any further. In that case, you have to decide if you are looking at products that you really can't afford, or if this is a trick. In either case, walk away and see what happens.

"You'll have to ask my husband/wife/boss"

...As with all the tricks, this works both ways. A salesperson will defer to a boss - real or imaginary - to make a decision, and may even come back from that conversation with a tempting special offer if you sign right away. Don't be fooled by this.

A buyer will often find the final decision is just too much pressure and will defer to someone with more authority - often a trick to give themselves time or to back away completely.

"That's expensive, I only paid x last time"

That was last time, this is this time. If the previous supplier was willing to give away the product or service at a ridiculous price then that's their lookout. It's always better to negotiate some good business than lots of bad business.

"The other guy said it would be cheaper"

Other guys have a tendency to do that...Ask "which other guy? What did he look like? When was this?" If they can tell you, there may well be another guy. If they can't remember, they're probably making it up.

"I'll meet you half way"

A very reasonable and fair sounding offer that gets you to pull your selling price down or your buying price up. You can't say no, because it sounds so fair. Or can you?

"How much for just this bit? And this bit? And this bit?"

Breaking a package down into components is an excellent way to erode the price...Remember - if your product or service is a package, keep it that way. You can achieve the same result by asking a supplier to itemise their quote.

"I just don't want to pay that much"

Well, at least they're honest. What can you do? They've effectively given you an ultimatum. You either accept their price or walk away. In fact, what they're really telling you is "I want your product or service but you haven't created enough value yet".

You have a simple choice - either build up the perceived value or remove cost in order to meet their target price...

Time or availability limited offers

If an offer is valid today, it will be valid tomorrow - if they want your business enough. You'll see this in general terms, in retail - "sale must end Saturday" - and you'll see it in specific terms too - "if you agree to this now then I will do x". Remember - "now" is a very flexible thing, so don't allow yourself to be put under pressure. There are very few products in this world that are so variable in price that you can't afford to make a proper decision. The same applies to "buy now, limited quantities available". Remember, there's only a limited quantity of everything on the planet, so it's not a good reason to give in!

"I'll think about it"

This means "no". Treat it as a "no" and act accordingly. Either write off the negotiation or challenge them directly - "what can I do to help you make the right decision?"


This means maybe, but you haven't completely convinced me yet. The key is in their behaviour, not in their words. If they are still talking to you, they're still interested."

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We Honor the Fallen on Memorial Day

In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.

We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved, and were loved, and now we lie
In Flanders fields.

Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.

"The poem 'In Flanders Fields' by the Canadian army physician John McCrae remains to this day one of the most memorable war poems ever written. It is a lasting legacy of the terrible battle in the Ypres salient in the spring of 1915.

The most asked question is: why poppies?

Wild poppies flower when other plants in their direct neighbourhood are dead. Their seeds can lie on the ground for years and years, but only when there are no more competing flowers or shrubs in the vicinity (for instance when someone firmly roots up the ground), these seeds will sprout.

There was enough rooted up soil on the battlefield of the Western Front; in fact the whole front consisted of churned up soil. So in May 1915, when McCrae wrote his poem, around him bloodred poppies blossomed like no one had ever seen before."

Find much more on this poem and its author at The Heritage of the Great War


Understand Conflict Resolution Styles in Dealing with Workplace Disputes

"Conflict in the workplace can be incredibly destructive to good teamwork.

Managed in the wrong way, real and legitimate differences between people can quickly spiral out of control, resulting in situations where co-operation breaks down and the team's mission is threatened. This is particularly the case where the wrong approaches to conflict resolution are used.

To calm these situations down, it helps to take a positive approach to conflict resolution, where discussion is courteous and non-confrontational, and the focus is on issues rather than on individuals. If this is done, then, as long as people listen carefully and explore facts, issues and possible solutions properly, conflict can often be resolved effectively. "

So states this article from MindTools.com that stresses understanding and recognizing different approaches people take to resolving conflict and using that information in an interest-based relational approach to dispute resolution, explaining:

"In the 1970’s Kenneth Thomas and Ralph Killman identified five main styles of dealing with conflict that vary in their degrees of cooperativeness and assertiveness...

Competitive: People who tend towards a competitive style take a firm stand, and know what they want. They usually operate from a position of power, drawn from things like position, rank, expertise, or persuasive ability. This style can be useful when there is an emergency and a decision needs to be make fast; when the decision is unpopular; or when defending against someone who is trying to exploit the situation selfishly. However it can leave people feeling bruised, unsatisfied and resentful when used in less urgent situations.

Collaborative: People tending towards a collaborative style try to meet the needs of all people involved. These people can be highly assertive but unlike the competitor, they cooperate effectively and acknowledge that everyone is important. This style is useful when a you need to bring together a variety of viewpoints to get the best solution; when there have been previous conflicts in the group; or when the situation is too important for a simple trade-off.

Compromising: People who prefer a compromising style try to find a solution that will at least partially satisfy everyone. Everyone is expected to give up something, and the compromiser him- or herself also expects to relinquish something. Compromise is useful when the cost of conflict is higher than the cost of losing ground, when equal strength opponents are at a standstill and when there is a deadline looming.

Accommodating: This style indicates a willingness to meet the needs of others at the expense of the person’s own needs. The accommodator often knows when to give in to others, but can be persuaded to surrender a position even when it is not warranted. This person is not assertive but is highly cooperative. Accommodation is appropriate when the issues matter more to the other party, when peace is more valuable than winning, or when you want to be in a position to collect on this “favor” you gave. However people may not return favors, and overall this approach is unlikely to give the best outcomes.

Avoiding: People tending towards this style seek to evade the conflict entirely. This style is typified by delegating controversial decisions, accepting default decisions, and not wanting to hurt anyone’s feelings. It can be appropriate when victory is impossible, when the controversy is trivial, or when someone else is in a better position to solve the problem. However in many situations this is a weak and ineffective approach to take.

Once you understand the different styles, you can use them to think about the most appropriate approach (or mixture of approaches) for the situation you're in. You can also think about your own instinctive approach, and learn how you need to change this if necessary."


What is Alternative Dispute Resolution Anyway?

"'Adjudication' is a term that can include decision making by a judge in a court, by an administrative tribunal or quasi-judicial tribunal, a specially appointed commission, or by an arbitrator. An adjudicator determines the outcome of a dispute by making a decision for the parties that is final, binding and enforceable. The parties present their case to the adjudicator (or tribunal, commission or arbitrator) whose role is to weigh the evidence and make a decision that is final, binding and enforceable..."

Alternatives to adjudication processes are available to resolve disputes and include "consensual dispute resolution...[meaning] that the disputants themselves decide the process and the outcome. Consensual dispute resolution processes include negotiation, facilitation, mediation...

Negotiation is a process in which two or more participants attempt to reach a joint decision on matters of common concern in situations where they are in actual or potential disagreement or conflict...Negotiators may use a variety of approaches. "Power negotiation" involves a negotiator's understanding and strategic use of various sources of power to achieve a negotiator's bargaining goals. Interest-based negotiation (Fisher, Ury and Patton 1991) attempts to reach solutions that meet the interests of all parties.

An assumption of interest-based negotiation is that a variety of interests or motivations may underlie parties' positions. The goal of the interest-based approach is to satisfy those interests rather than bargain over bargaining positions. This style of negotiation may also be called "problem-solving" negotiation, "all gain" negotiation or "value creating" negotiation (Mnookin et al 2000). Some approaches to negotiation use game theory, including "tit-for-tat" approaches which use strategic combinations of cooperation and aggression...

Mediation is a process in which an impartial third party helps disputants resolve a dispute or plan a transaction, but does not have the power to impose a binding solution (LeBaron Duryea 2001, 121). Mediators use a variety of processes. Some mediators use "interest-based" approaches (Fisher, Ury and Patton 1991), while others use "rights-based" approaches. Some mediators are "facilitative," providing only process assistance for negotiation and using interest-based approaches. Facilitative, interest-based mediation is taught widely in North America for the purposes of community, family and commercial mediation and tends to foster the avoidance of mediator recommendations or suggestions in order to preserve mediator neutrality and to encourage party control of outcomes.

Other mediators, including many labour mediators and commercial mediators, may use an "evaluative" style, providing suggestions or recommendations (for comparison see Waldman, 1997, 1998). Evaluative, rights-based mediation processes are similar to adjudicative processes such as non-binding arbitration. Other mediators may be "activist," intervening to ensure all parties are represented and that power balances are addressed (Forester 1994; Forester and Stitzel, 1989), but activist mediators do not necessarily make specific recommendations. Other mediators consider themselves to be "transformative" mediators, working less toward settlements and more toward transformation of relationships (Bush and Folger 1994; Folger and Bush, 2001; Lederach 1995).

Still others foster "narrative" mediation processes in which the mediator is more of a joint participant with the parties in the joint creation of new possibilities for the future (Cobb, 1994; Winslade and Mo nk 2000). There is considerable debate in the field of conflict resolution about these differing approaches and styles of mediation. Many mediators are familiar with all these approaches and design mediation processes to suit the particular parties and the situation (Waldman 1997, 1998)..."

Read much more in this article by Catherine Morris from which the foregoing quotations were excerpted.

Mediation Mindset Named One of Top Five Blogs

I am very pleased to announce that this blog has been named one of the top five mediation blogs by the National Institute for Advanced Conflict Resolution. I am humbled to be in the company of the other great blogs cited. The Institute stated:

"The advent of blogging as a form of internet communication has begun to revolutionize how information is disseminated on the web. The mediation field has not been immune from this development, and there are a growing number of blogs relating to the mediation field popping up on the internet. In recognition of the efforts of these blog pioneers, we have surveyed the field and our findings are presented below...

4. Mediation Mindset
(Written by Anthony Cerminaro, Pittsburgh, Pennsylvania) This newcomer to the field promises to be a rising star. With a focus on negotiation, this blog presents its information in a compelling and informative style. Of particular note was a recent article on negotiating in China which was as fascinating as it was informative. We predict this blog will become a staple for mediators interested in keeping abreast of developments in this area..."

More details are available at this NIACR page.


Dealing with Negotiation Mind Games

"Most of us think of negotiation as a purely rational exercise. The reality is just the opposite. Personality, emotions and strategic moves play a large role in most negotiations and can be responsible for the success or failure to reach agreement. Mind games can also play out behind the scenes so that negotiating your relationship with the other side, including your legitimacy and credibility, can play as large a part as what is going on in the main negotiating event. Thus is it important to learn how to “hold your own” in difficult negotiations and with “difficult people”.

Below are set out just some of the ways to become a more successful and effective negotiator when dealing with mind games.

1. Preparation...Learn to prepare in a way that allows you to anticipate how the negotiation will go, where obstacles will arise and what information you need from the other side...

2. Increased Awareness. This includes being aware not only of how you react to conflict but also how the other side reacts...The importance of this is that you will be able to convey information to other persons in a way that suits them, predict what will frustrate them during the negotiation, and generally be better able to understand their interests and goals...

3. Strategies. Not only is it important to know what types of negotiating strategies are available, you also need to know when to use them...What happens when different negotiation strategies meet is also important to know. Of course, selecting the most appropriate strategy is the first step, knowing how to implement it is the next.

4. Effective Communication Skills...By communication skills we mean not only what we say and what we ask but also, and perhaps more importantly, how we listen to the other side. Knowing the elements of successful communication such as the structure of the message, delivery style, the type of language used, body language, impressions and biases, will greatly assist you in negotiating better...

5. Emotions...Sometimes dealing appropriately with...emotions...is best achieved by...maintaining emotional distance...in other circumstances, it may be best to make the emotions explicit and acknowledge them...

6. Difficult People and Heavy Subjects...There are different ways and techniques of dealing with difficult people depending on the problematic behavior...Each one requires knowing how to stay in control and conscious of what you are doing to avoid automatically reacting to the other side...

7. Tactics and Strategic Moves...Most tactics are based on manipulation and used with competitive strategy. However, almost all of them are ineffective once they have been exposed. Strategic moves are more complicated and are not based on manipulating the other side or putting them at a disadvantage. Using empathy, stepping to the other side of the table, active listening, and reframing are all strategic moves that enhance the chance of a win/win agreement and do not harm relationships.

8. Hidden Agendas. It is important to understand that there are a whole array of hidden attitudes and agendas that drive the negotiations as much as the explicit differences over the issues. Before you reach a good agreement these masked assumptions and unvoiced views must be brought to the surface...Culture is another area where hidden agendas arise. By learning more about, and becoming more conscious of these hidden agendas and the masked assumptions that are just “behind the scenes” in many negotiations, you will become a more effective and successful negotiator."

Read more in this article by Delee Fromm.

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Negotiating in China

Westerners need to know more than basic Chinese etiquette to negotiate successfully with the Chinese according to an article co-written by John L. Graham and M. Mark Lam. According to the article, westerners negotiating with the Chinese must always be mindful of the following eight important elements underpinning the Chinese negotiation style:

"Guanxi (Personal Connections)
While Americans put a premium on networking, information, and institutions, the Chinese place a premium on individuals’ social capital within their group of friends, relatives, and close associates.

Zhongjian Ren (The Intermediary)
Business deals for Americans in China don't have a chance without the zhongjian ren, the intermediary. In the United States, we tend to trust others until or unless we’re given reason not to. In China, suspicion and distrust characterize all meetings with strangers.

Shehui Dengji (Social Status)
American-style, "just call me Mary" casualness does not play well in a country where the Confucian values of obedience and deference to one’s superiors remain strong. The formality goes much deeper, however—unfathomably so, to many Westerners.

Renji Hexie (Interpersonal Harmony)
The Chinese sayings, "A man without a smile should not open a shop." and "Sweet temper and friendliness produce money." speak volumes about the importance of harmonious relations between business partners.

Zhengti Guannian (Holistic Thinking)
The Chinese think in terms of the whole while Americans think sequentially and individualistically, breaking up complex negotiation tasks into a series of smaller issues: price, quantity, warranty, delivery, and so forth. Chinese negotiators tend to talk about those issues all at once, skipping among them, and, from the Americans’ point of view, seemingly never settling anything.

Jiejian (Thrift)
China’s long history of economic and political instability has taught its people to save their money, a practice known as jiejian. The focus on savings results, in business negotiations, in a lot of bargaining over price—usually through haggling. Chinese negotiators will pad their offers with more room to maneuver than most Americans are used to, and they will make concessions on price with great reluctance and only after lengthy discussions.

Mianzi ("Face" or Social Capital)
In Chinese business culture, a person’s reputation and social standing rest on saving face. If Westerners cause the Chinese embarrassment or loss of composure, even unintentionally, it can be disastrous for business negotiations.

Chiku Nailao (Endurance, Relentlessness, or Eating Bitterness and Enduring Labor)
The Chinese are famous for their work ethic. But they take diligence one step further—to endurance. Where Americans place high value on talent as a key to success, the Chinese see chiku nailao as much more important and honorable."

For additional commentary and a link to the article, see this post from China Law Blog.


Active Listening Aids Negotiators and Mediators

How often we hear, but do not listen. While another is speaking, we are formulating a response or thinking about all manner of extraneous items, problems and affairs. We believe perhaps that we know or have already heard what the speaker is saying, but do not bother to verify whether our assumptions are true. Communications break down in part because we do not really listen, actively listen. This active listening study guide puts it this way:

"Active listening intentionally focuses on who you are listening to, whether in a group or one-on-one, in order to understand what he or she is saying. As the listener, you should then be able to repeat back in your own words what they have said to their satisfaction. This does not mean you agree with, but rather understand, what they are saying."

Much more on this topic is available from this mindtools site that suggests:

"1. Start by Understanding Your Own Communication Style...
By becoming more aware of how others perceive you, you can adapt more readily to their styles of communicating...you can make another person more comfortable with you by selecting and emphasizing certain behaviors that fit within your personality and resonate with another. In doing this, you will prepare yourself to become an active listener.

2. Be An Active Listener
...which involves listening with a purpose. It may be to gain information, obtain directions, understand others, solve problems, share interest, see how another person feels, show support, etc. If you're finding it particularly difficult to concentrate on what someone is saying, try repeating their words mentally as they say it - this will reinforce their message and help you control mind drift.

3. Use Nonverbal Communication
...Nonverbal communication is facial expressions like smiles, gestures, eye contact, and even your posture. This shows the person you are communicating with that you are indeed listening actively and will prompt further communications...

4. Give Feedback
...Restate what you think you heard and ask, "Have I understood you correctly?"...Feedback is a verbal communications means used to clearly demonstrate you are actively listening and to confirm the communications between you and others. Obviously, this serves to further ensure the communications are understood and is a great tool to use to verify everything you heard while actively listening..."


Mediation Tips for Trial Lawyers

From this The Illinois Trial Practice Weblog post:

"Powerpoint and video presentations...If you're going to make a detailed presentation, take care. On the other hand, photographs and chronologies often help a mediator quickly understand the facts.

Try to view the process 'as a joint problem requiring a solution' and not a 'competition to win or lose.'

Make sure you talk to your client about the objective of the mediation. The client should be at the mediation and should be given access to the mediator. Generally, you should let the client speak if the client wants to speak.

When you're negotiating, don't be a "one-trick pony." That's a lawyer who is always using the same negotiating tactic, mistaking it for something very dramatic: walking out, then returning and walking out again; or drawing a firm line in the sand and promising never to cross it, only to cross it and replace it with another non-negotiable line..."


Using Conflict Resolution Techniques in Project Management

"Conflict in project management is inevitable. The potential for conflict in information systems development projects is usually high because it involves individuals from different backgrounds and orientations working together to complete a complex task. The cause of conflict in team projects can be related to differences in values, attitudes, needs, expectations, perceptions, resources, and personalities. Proper skills in dealing with conflict can assist project managers and other organization members to handle and effectively resolve conflicts which can lead to a more productive organization as a whole."

So begins an excellent article by Amy Ohlendorf that continues by providing an overview of the project management process, an exposition on the causes and effects of conflict, particularly those that arise in the IT sector, a presentation of approaches to resolving conflicts, concluding:

"Conflict in project management is not necessarily unfavorable when properly managed. Several advantages have been identified such as increasing personal growth and morale, enhancing communication, and producing better project outcomes. However, conflict can be the decline of an organization if it is not effectively managed. The challenge for organizational leaders and project managers is to try to maintain the right balance and intensity of conflict in project management. By utilizing project management principles, understanding the dynamics of conflict, and learning approaches to conflict resolution, managers will be able to establish an environment in which creativity and innovation is encouraged and project goals are accomplished."


Please Explain - Strategic Questions

This module from a course on recognizing workplace discrimination identifies the types of strategic questions the answers to which can be analysed to determine what is happening and how intervention may assist in preventing disadvantage or damage occurring to individuals involved. The questions are also examples of powerful questions that mediators can use to assist the parties to a dispute negotiate a solution.

"1. Focus Questions
(Enable the issues and important facts to be identified...

2. Observation Questions
(What one sees and the information heard regarding the situation...

3. Analysis Questions
(Focus on the meaning given to events...

4. Feeling Questions
(Concerned with bodily sensations, emotions and health...

5. Visioning Questions
(Concerned with identifying ideals, dreams, values...

6. Change Questions
(Concerned with how to get from the present towards an ideal situation...

7. Considering the Alternatives
(Examine the options...creative thinking...

8. Considering the Consequences
(Explore the consequences of each alternative...

9. Considering the Obstacles
(Identifying likely obstacles...and how they could be dealt with...

10. Personal Inventory and Support
(Concerned with identifying one's interests, potential contribution...and the support needed for action...

11. Personal Action Questions
(Specifics of what to do, how and when..."


Negotiation Pitfalls and Tips

"We often look at negotiating as unpleasant, because it implies conflict, but negotiating need not be characterized by bad feelings, or angry behaviour. Understanding more about the negotiation process allows us to manage our negotiations with confidence increases the chance that the outcomes will be positive for both parties.

Barriers To Successful Negotiation

Viewing Negotiation As Confrontational...
Becoming Emotional...
Not Trying To Understand The Other Person...
Focusing On Personalities, Not Issues...
Blaming The Other Person...

Some Negotiation Tips

Solicit The Other's Perspective...
In a negotiating situation use questions to find out what the other person's concerns and needs might be. You might try: What do you need from me on this? What are your concerns about what I am suggesting / asking?
State Your Needs...
Prepare Options Beforehand...
Don't Argue
Negotiating is about finding solutions...Arguing is about trying to prove the other person wrong...
Consider Timing
There are good times to negotiate and bad times. Bad times include those situations where there is:

. a high degree of anger on either side
. preoccupation with something else
. a high level of stress
. tiredness on one side or the other
Time negotiations to avoid these times. If they arise during negotiations a time-out/rest period is in order, or perhaps rescheduling to a better time..."

Read more in this work911 article.


Why We Fear Confronting Conflict

Strategic conversationalist, Tammy Lenski offers these seven fears of self-promotion which she believes apply as well to our fears about confronting conflict:

The Unknown

Read more in 7 Fears of Confronting Conflict - Strategic Conversations


Strategic Negotiations

"With our negotiating skills, we protect our critical interests, make agreements that reduce conflict about expectations, encourage collective effort, and establish the foundations for long-lasting partnerships. Negotiation is not a war, nor is it a cause for antipathy. Properly principled, negotiation is a problem solving process in which initially opposing viewpoints can be brought into the fortunate circumstance of mutual gain-creating a bigger pie which then can be shared by all...

It is one thing to influence a group essentially in agreement; it is quite a different thing to influence a group with goals in conflict with those you want to pursue. This sounds formidable, but we do it all the time. We call it negotiation.


Negotiation is a process whereby two persons or groups strive to reach agreement on issues or courses of action where there is some degree of difference in interest, goals, values or beliefs. The job of the negotiator is to build credibility with the "other side," find some common ground (shared interests), learn the opposing position, and share information that will persuade the "other side" to agree to an outcome..."

The foregoing are takeaways from Strategic Negotiations, a chapter in a larger work on military Strategic Leadership, that is well worth reading for its clear explanation of bargaining models, Batnas, and other negotiation concepts.


Establishing an Effective Ombuds Office

This paper from Mediate.com examines "the considerations that go into establishing an Ombuds Office within an organization, what constitutes the usual requirements to allow the Office to perform its functions effectively and some strategic considerations about how to implement such a plan. The paper identifies a number of pitfalls that may be encountered along the way and concludes with some suggestions of what an Ombuds Office can and cannot reasonably be expected to accomplish." A few highlights from a comprehensive article include:

"Requirements for a Feasible Ombuds Office

...For an ombuds Office to work it will need to be part of a conflict resolving system. The organization must decide what it values in that system and know what it wishes to accomplish with it...

An ombudsperson needs, as much as is possible, to have an arms length relationship with the organization he or she serves...

Due Process:
...This includes such fundamentals as: providing both sides to a dispute a full and fair opportunity to be heard; ensuring that no one in the organization is sitting in an adjudicative capacity over a matter where he or she has a direct interest; providing an opportunity to fully respond to the case made by the "other side"; providing reasonable notice of any investigation or hearing to individuals affected by the controversy and allowing a fair length of time for parties to prepare and make submissions; wherever possible providing reasons for decisions that affect people

The organization must make resources available such that the ombudsperson can perform their responsibilities in a diligent and timely manner..."


Guides to Negotiating Explained

If you want to be a better negotiator, you can buy 24 books, take 12 courses, and attend 7 seminars -- or, you can read this Inc.com article that summarizes the major texts offering negotiation tips and tricks, stating:

"Volumes specifically devoted to negotiating form a growing subset of the sprawling advice category, with literally dozens of examples ranging from the memoirs of celebrated negotiators to academic explorations thick with charts and graphs... The sheer number of offerings suggests a remarkable variety of approaches to the subject: Can there really be that much to say about negotiating? Well, no. Even the most ferocious and the most laid-back authors actually share a good deal more common ground than either would care to admit. But each is useful in its way, and you'll find many of the handiest insights below."


Get a Head Start in Negotiations

"If you want to start negotiations in a winning position, then you need to prepare...

1. Check Whether You're In A Negotiating Situation. A negotiating situation exists when you are in any communication or problem-solving situation with others that can work out to your advantage...
2. Clarify Your Aims...
3. Gather Information...throughout a negotiation you should do tons of listening, clarifying and checking...
4. Negotiate With Your Own Side...Part of your preparation for negotiations has to be spent getting the best mandate from your constituents...
5. Get A BATNA...
6. Prepare The Setting...
7. Prepare Yourself Mentally..."

From this businessknowhow.com article.


Negotiations and Resolving Conflicts:

"Every desire that demands satisfaction and every need to be met-is at least potentially an occasion for negotiation; whenever people exchange ideas with the intention of changing relationships, whenever they confer for agreement, they are negotiating."

So begins this resource page from Professor Wertheim of Northeastern University that provides a comprehensive overview of many valuable concepts including the following:

“The Five Modes of Responding to Conflict [including]…the two most problematic types: Collaborative (integrative) and Competitive (Distributive)…

Rational vs. the Emotional Components of Negotiation

All negotiations involve two levels: a rational decision making (substantive) process and a psychological (emotional) process. The outcome of a negotiation is as likely to be a result of both. Most of us understand the need to grasp the substantive or rational aspects of negotiation. For many of us it is the psychological aspects that are more difficult….

Integrative or Win-Win Bargaining:
Keys to Integrative Bargaining

Orient yourself towards a win-win approach: your attitude going into negotiation plays a huge role in the outcome
Plan and have a concrete strategy...be clear on what is important to you and why it is important
Know your BATNA (Best Alternative to a Negotiated Alternative)
Separate people from the problem
Focus on interests, not positions; consider the other party's situation:
Create Options for Mutual Gain:
Generate a variety of possibilities before deciding what to do
Aim for an outcome based on some objective standard
Pay a lot of attention to the flow of negotiation;
Take the Intangibles into account; communicate carefully
Use Active Listening Skills; rephrase, ask questions and then ask some more…”


Interest-Based Mediation & Problem Solving

"What is Interest-Based mediation?

In interest-based mediation an impartial and independent negotiator facilitates a discussion between disputing parties. The professionally trained mediator assists parties to explore matters at issue between them and to identify what is most important to them; their needs, expectations, desires, concerns, hopes and fears. Once these interests have been identified, parties explore options for settlement and if they wish, create an agreement that addresses as many of their interests as possible.

Such a mediation is normally completed in four stages, including an introduction, the identification of issues the parties wish to resolve, an exploration of the facts and interests, and a solutions stage in which the parties create an agreement. The agreement is tested to ensure it meets the parties' interests, is in accord with objective criteria, and is realistic and workable.

What Are The Advantages Of Mediation?

Mediation is a fast and cost effective way to resolve a dispute. It offers parties:

A chance to be heard...
A chance to develop new ways of thinking about a problem...
A chance to work collaboratively...
A chance for the parties to develop their own solutions. The mediator controls the process of the discussion and the parties control the result..."

From this webpage of the Mediation Library of North Carolina State University. The site also contains a detailed paper on interest-based problem solving "that provides a structured process by which participants work to solve problems while simultaneously fulfilling their own needs and attempting to satisfy the needs of others."


Tutorial on Negotiation

This Negotiation Tutorial from Professor Ross of the University of Wisconsin - Lacrosse provides information that may help you become a more effective negotiator. By "effective" Dr. Ross means "someone who (a) achieves highly satisfactory outcomes, (b) helps the other side achieve what appear to be satisfactory outcomes, while (c) maintaining the relationship between the two sides."

The tutorial into the following topics:

Concession Curves
Persuasion Techniques
Integrative Bargaining

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Called to Peace Making

Some experience the desire to be a mediator as a "calling." To us, the phrase "Blessed are the PeaceMakers" has particular allure. This poem by Mary Oliver expresses the idea:

The Journey

One day you finally knew
what you had to do, and began,
though the voices around you
kept shouting
their bad advice----
though the whole house
began to tremble
and you felt the old tug
at your ankles.
"Mend my life!"
each voice cried.
But you didn’t stop.
You knew what you had to do,
though the wind pried
with its stiff fingers
at the very foundations,
though their melancholy
was terrible.
It was already late
enough, and a wild night,
and the road full of fallen
branches and stones.
But little by little,
as you left their voices behind,
the stars began to burn
through the sheets of clouds,
and there was a new voice
which you slowly
recognized as your own,
that kept you company
as you strode deeper and deeper
into the world
determined to do
the only thing you could do----
determined to save
the only life you could save.

FromCallings Poetry found via this rss feed of Evelyn Rodriguez delicious tags.


Defining Mediation

"Mediation is a voluntary collaborative process where individuals who have a conflict with one another identify issues, develop options, consider alternatives, and develop a consenual agreement. Trained mediators facilitate open communication to resolve differences in a non-adversarial, confidential manner... "

Read more on this webpage from the Global Resource Development Center that also explains some of the advantages of mediation when prior attempts to resolve a dispute have failed.


Conflict Resolution Checklists

For people struggling with difficult conflicts, these checklists for intermediaries and adversaries and related articles from Beyond Intractability.org highlight conflict dynamics that are helpful to understand, as well as options for dealing with common problems in the following areas:

Organizational Conflict
Post-Conflict Stabilization
Public Policy


Structured Settlements Explained

This post from Florida Mediator provides a link to "an incredibly helpful, easy to understand article [downloaded as a PDF file] from Bloomberg Wealth Manager which objectively reviews and explains structured settlements. Well worth [pun intended!] reading."

Utah adopts Uniform Mediation Act

"Utah Gov. Jon Huntsman (R) has signed legislation making his state the eighth to adopt the Uniform Mediation Act, including a provision unique to the state that will require mediators to serve in a neutral fashion... The UMA also has been adopted in Iowa, Illinois, Nebraska, Ohio, New Jersey, and Washington. It has been introduced this year in Massachusetts, New York, Vermont, Minnesota, and Connecticut. "

Read more in this article from ADRWorld.com (free registration required).

New Jersey Upholds Mediation Confidentiality

"A New Jersey appeals court late last week gave a big boost to the confidentiality of mediation communications, ruling that a mediator is prohibited from testifying in subsequent proceedings without an express waiver from all the parties under the Uniform Mediation Act (UMA) and state rules.

The Superior Court of New Jersey, Appellate Division on Jan. 19 said the state has a strong policy in favor of protecting mediation communications from disclosure, holding and a need for testimony did not outweigh the need to maintain mediation confidentiality according to the parameters of the UMA's balancing test ( Karin Lehr v. John Afflitto , No. A-6992-03T2).

The ruling means that the UMA's confidentiality protections will stand in both civil and criminal cases, observers say. "

Read more in this post from ADRWorld.com (free registration required).


Avoid Negotiation Mistakes

"Negotiation is a difficult art as it requires managing, in real-time, both the other person's mind and your own. Here are a number of mistakes that negotiators can make...

*Accepting positions: Assuming the other person won't change their position.
*Accepting statements: Assuming what the other person says is wholly true.
*Hurrying: Negotiating in haste (and repenting at leisure).
*Hurting the relationship: Getting what you want but making an enemy.
*Issue fixation: Getting stuck on one issue and missing greater possibilities.
*Missing strengths: Not realizing the strengths that you actually have.
*Misunderstanding authority: Assuming that authority and power are synonymous.
*Misunderstanding power: Thinking one person has all the power.
*One solution: Thinking there is only one possible solution.
*Over-wanting: Wanting something too much.
*Squeezing too much: Trying to gain every last advantage.
*Talking too much: Not gaining the power of information from others.
*Win-lose: Assuming a fixed-pie, win-lose scenario."

Read more, including steps you can take to avoid making the foregoing mistakes in this webpage from ChangingMinds.org.


Employment Arbitration Agreements Cautions

"Lured by the dual prospects of lower litigation costs and avoiding runaway juries, most employers have seized the opportunity to require employees to arbitrate their claims and forego their right to file suit. But, rushing into arbitration is not necessarily the best bet in every situation. The paper [Agreements To Arbitrate from BNET.com] describes 10 issues employers should consider when determining whether to require arbitration or when structuring arbitration agreements."


Business Mediation & Arbitration Basics

"In an attempt to control litigation costs, many companies are looking to employ alternative dispute resolution mechanisms – commonly referred to as ADR -- to avoid the courthouse. Two of the most commonly used ADR mechanisms are mediation and arbitration. Mediation is a voluntary process through which the parties meet and try to negotiate a resolution to their dispute by using an objective third-party facilitator. Arbitration is a process that results in a binding decision that the parties can seek to enforce through the courts." Outlined in this article from Beirne, Maynard & Parsons are the basics that can be expected in a typical mediation or arbitration conducted as described in the article.

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Examples of Powerful Questions

"1. How important is this?
2. Where do you feel stuck?
3. What is the intent of what you're saying?
4. What can we do for you?
5. What do you think the problem is?
6. What's your role in this issue?
7. What have you tried so far? What worked? What didn't?
8. Have you experienced anything like this before? (If so, what did you do?)
9. What can you do for yourself?
10. What do you hope for?
11. What's preventing you from ..."
12. What would you be willing to give up for that?
13. If you could change one thing, what would it be?
14. Imagine a point in the future where your issue is resolved. How did you get there?
15. What would you like us to ask?
16. What have you learned?"

From this webpage by Carter McNamara.


Three Approaches to Mediation

"Three of the most common types of mediation are called "facilitative", "transformative", and "evaluative." Regardless of the differences, 3 core concepts are the same for each of these 3 types of mediation

-The mediator is neutral (s/he does not take sides in the disagreement).
-The process is confidential.
-You and the other side determine the outcomes.

However, the role of the mediator is a bit different in each type.

Facilitative Mediation: Facilitative mediation is based on the belief that, with neutral assistance, people can work through and resolve their own conflicts. In a facilitative mediation, the mediator will take an active role in controlling the "process." Process means things like setting the ground rules for how the problem will be solved. The mediator asks questions to identify the interests of the parties and the real issues in the disagreement. The mediator helps the parties explore solutions that benefit both parties (sometimes called "win/win" solutions). In a facilitative mediation, the mediator does not offer an opinion on the strengths and weaknesses of the parties' cases. The mediator does not suggest solutions.

Transformative Mediation: Transformative mediation is based on the belief that conflict tends to make parties feel weak and self-absorbed. Transformative mediators try to change the nature of the parties' conflict interaction by

Helping them appreciate each others viewpoints ("recognition") and
Strengthening their ability to handle conflict in a productive manner ("empowerment").

The mediator will intervene in the conversation between the parties in order to call attention to moments of recognition and empowerment. Ground rules for the mediation are set only if the parties set them. The mediator does not direct the parties to topics or issues. Instead, the mediator follows the parties’ conversation and assist them to talk about what they think is important. The transformative mediator does not offer an opinion on the strengths or weaknesses of the parties’ cases. The mediator does not suggest solutions.

Evaluative Mediation: Evaluative mediation is based on the belief that mediators with expertise in the issues in conflict can help the parties to:

Assess the strengths and weaknesses of their legal or other positions and
Work to achieve settlements. In evaluative mediation, the mediator controls the process and suggests solutions for resolving the conflict. Individual meetings between the mediator and one party at a time (called "caucuses") are a major component of evaluative mediation. The focus of an evaluative mediation is primarily upon settlement. The mediators will make their best efforts to get the parties to compromise, if necessary, to achieve a result."

Read more in this peopleslaw.org article found via this Legal Sanity post.

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